This Master Subscription Agreement (this “Agreement”) is by and between Magnus Health, LLC (“Magnus”) and the Client set forth in the Order Form executed by the parties (“Client”), and is effective as of the Effective Date of the first Order Form between the parties.
BY (AS APPLICABLE) SIGNING AN ORDER FORM, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY MAGNUS SERVICE, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. CLIENT SHOULD CAREFULLY READ THE TERMS OF THIS AGREEMENT BEFORE ACCEPTING THIS AGREEMENT OR USING THE SERVICE. MAGNUS’ OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CLIENT REGARDING THE SERVICE IS EXPRESSLY LIMITED TO THIS AGREEMENT AND IS CONDITIONED ON CLIENT’S ASSENT HERETO. NO ADDITIONAL OR DIFFERENT TERMS PROPOSED OR PROVIDED BY CLIENT APPLY TO THIS AGREEMENT.
This Agreement governs Client’s acquisition and use of the Service under any Order Form, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement.
“Authorized User” means a Client teacher, nurse, coach, student, parent/guardian, or other Client employee or contractor who is authorized by Client to use the Service.
“Client Data” means all information and data that is provided to Magnus by Client’s Authorized Users as part of the Service.
“Documentation” means the documentation, usage guides, and policies for the Service provided or communicated from time to time by Magnus to Client.
“Effective Date” means the Effective Date of the first Order Form executed between Magnus and Client.
“Order Form” means a written or online quote, proposal, statement of work, order, or other document agreed by the parties that specifies the Service to be provided in exchange for payment.
“Service” means provision on a “software as a service” basis of proprietary software developed by Magnus along with implementation, training, record review, support, and other services that Magnus may provide Client, as set forth in an Order Form.
“Software” means the proprietary software developed and owned by Magnus and provided to Client in connection with the Service.
2.1. Magnus will use commercially reasonable efforts to (a) provide the Service to Client and Authorized Users and (b) to make the online Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Magnus shall give advance electronic notice), and (ii) any unavailability caused by an event outside of Magnus’ reasonable control. Client’s right to use the Service is non-exclusive and non transferable, and is solely for Client’s own internal business purpose. The Service is also subject to the specific restrictions, usage limits, and time periods as set forth in each Order Form. For the avoidance of doubt, if Client manages or administers more than one campus, then Client’s use of the Service shall be limited to the specific campus(es) identified on the Order Form.
2.3. Magnus reserves the right to change and enhance the Service from time to time.
2.4. Client agrees to: (a) use commercially reasonable efforts to prevent unauthorized access to and use of the Service, and (b) comply with all applicable federal, state, local and foreign laws, rules and regulations in connection with its use of the Service, and to not use the Service in support of any criminal, fraudulent, or illegal endeavors. Magnus is not responsible for the failure of Authorized Users to maintain the confidentiality of their login information. Login information of an Authorized User may not be shared by Client or any Authorized User with any other individual.
2.5. Client will provide Magnus with cooperation, information, resources, and access to Client-owned and licensed systems as outlined in the applicable Order Form and as reasonably requested from time to time by Magnus. Magnus is not responsible or liable for any delays or failures to perform based on Client’s failure to provide any of the foregoing items.
3.1. The Initial Term of this Agreement shall begin on the Effective Date and shall continue in effect until all Order Forms with Client have expired in accordance with the terms of such Order Forms, or if this Agreement is terminated earlier, as provided herein.
3.2. The term of each Order Form will begin on the effective date of such Order Form and shall continue for the initial term specified in such Order Form (“Initial Service Term”), unless terminated earlier as provided herein.
3.3. Unless otherwise set forth in the applicable Order Form, upon expiration of the Initial Service Term of any Order Form, such Order Form will renew automatically for a subsequent Renewal Service Term of twelve (12) months (subject to any Fees adjustment as set forth in Section 4.7) unless either party notifies the other party of its intent to terminate at least thirty (30) days prior to the end of the then-current Service Term.
3.4. Without limiting Magnus’ other rights and remedies, Magnus reserves the right to suspend or terminate this Agreement, any related Order Forms, and Client’s access to the Service if Client’s account becomes delinquent and is uncured for a period of thirty (30) days.
3.6. Upon request by Client made within 30 days after the effective date of termination of this Agreement, Magnus will make Client Data available to Client for export or download solely in the manner and to the extent provided in the Documentation. After such 30-day period, Magnus will have no obligation to maintain or provide any Client Data, and as provided in the Documentation may thereafter delete or destroy all copies of Client Data in Magnus’ systems or otherwise in the possession or control of Magnus, unless legally prohibited.
3.7. Sections 4, 5, 6, 8, 9, 10 and 11 of this Agreement shall survive termination or expiration of this Agreement. Termination of this Agreement will not affect any accrued rights or liabilities of either party.
4.1. Client shall pay all fees and charges as specified on each Order Form (“Fees”).
4.2. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Unless otherwise agreed on the Order Form, Magnus charges and collects Fees in advance for the Service except for Fees based on usage of the Service exceeding amounts as defined on the Order Form, which overage amounts are invoiced in arrears based on such usage.
4.3. Unless otherwise set forth in the Order Form, payment terms are net fifteen (15) days from the date of Magnus’ invoice, without offsets or deductions of any kind, and payment is due in US dollars. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection including reasonable legal fees and expenses. In addition, Magnus has the right to modify any credit or payment terms in the event Client is delinquent on any invoices. Client will continue to be charged for Fees during any period of Service suspension due to Client’s delinquency.
4.4. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client is responsible for payment of all such taxes, levies, or duties, excluding only taxes based on Magnus’ income. If Magnus has the legal obligation to pay or collect taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client unless Client provides Magnus with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5. If Client believes an invoice is incorrect, Client must contact Magnus in writing within fifteen (15) days after the date of the invoice as to why it believes the invoice is incorrect to be eligible to receive an adjustment or credit.
4.6. Client agrees to provide Magnus with accurate billing and contact information, including Client’s legal name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Magnus reserves the right to terminate Client’s access to the Service in addition to any other legal remedies.
4.7. Magnus reserves the right to modify its Fees with respect to its Service and to introduce new charges (including but not limited to archival fees to cover additional storage capacity requirements) to become effective upon each upcoming Renewal Service Term by providing Client written notice at least forty-five (45) days prior to the end of the then-current Service Term. In the event that Client does not provide notice of termination to Magnus as described in Section 3.3, such Fee changes shall become effective at the commencement of the next Renewal Service Term.
5.1. Client agrees that Magnus and its third party licensors own all right, title and interest, including copyright, patent, trade secret, and all other intellectual property rights, in the Service, the Software and the Sites, including but not limited to structure, organization, design, algorithms, templates, data models, flow charts, logic flow, screen displays, and report formats associated therewith. Magnus reserves all rights to the Service and Software not specifically granted herein.
5.2. Client will not: (i) reverse engineer, decompile or disassemble the Software or the Service, and will not otherwise attempt to reconstruct or discover the source code or underlying algorithms for the Software; (ii) provide, lease, lend, rent, sell or use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Service or Software for the benefit of third parties; or (iii) copy, modify, translate, distribute, disclose, sublicense, create derivative works from, transfer, display, or unbundle any of the Software or Service or (iv) access the Software or Service to build a competitive product or service.
5.3. As between Client and Magnus, Client shall retain ownership of the Client Data. Client hereby grants to Magnus, during the term hereof, an irrevocable, royalty-free right and license to use for the purposes specified in this Agreement all Client Data and other materials, software, and data provided by Client to Magnus in connection with this Agreement.
5.4. Client hereby grants to Magnus a perpetual, irrevocable, worldwide, royalty-free right and license to use any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or any Authorized User relating to the Service.
5.5. Client shall not use the Service for purposes of monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
6.1. “Confidential Information” means any information (including without limitation any formula, pattern, compilation, program, method, technique, or process) that is identified by either party in writing as confidential or is of such a nature that a reasonable person would understand such information to be confidential that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to this Agreement, so long as such information is subject to reasonable efforts by the disclosing party to preserve its confidentiality.
6.2. Confidential Information of Magnus includes, but is not limited to, the Software, as well as the structure, organization, design, algorithms, methods, templates, data models, data structures, flowcharts, logic flow, and screen displays associated with the Software; the Documentation; and Magnus’ pricing, sales and training materials and procedures. Confidential Information of Client includes student education records as protected by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and defined in 20 U.S.C. § 1232g(a)(4)(A)(i).
6.3. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or (d) is otherwise required to be disclosed by law.
6.4. A receiving party agrees, except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, or allow a third party to access the Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
6.5. Notwithstanding anything to the contrary herein, Client agrees that Magnus may: (a) derive and compile from the provision of the Service certain de-identified, aggregate and/or analytical data, which shall not contain any Client-specific or any individually identifying information, and (b) use this data for Magnus’ own purposes and without restriction, including, but not limited to, using the data in conjunction with data from other sources to improve Magnus’ products and services and create new data models and products.
6.6. Each party acknowledges and agrees that any violation of this Section or the intellectual property rights of Magnus may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to seek preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
7.1. In the course of providing the Service, Magnus may have access to student records that may be protected by the Family Educational Rights and Privacy Act (“FERPA“) or by the Health Insurance Portability and Accountability Act of 1996 and associated rules and regulations (“HIPAA”). To the extent that FERPA applies to the Service, the parties agree that, for the purposes of this Agreement, Magnus is a “school official” under FERPA. Magnus agrees that it shall use student education records solely to provide the Service and to compile aggregated and statistical information that does not include any personally identifiable information.
7.2. Each party agrees that it will adhere to all laws and regulations relating to the privacy and protection of individually identifiable data, including but not limited to FERPA and HIPAA.
7.3. Magnus will use commercially reasonable administrative, technical and physical security measures to maintain the confidentiality of the Client Data.
7.4. Client is responsible for securing Client’s systems, facilities, and operating environment and Client is responsible for its Authorized Users of the Service. Client agrees to observe all security features on the Sites and Service and not to disable or circumvent any security features.
7.5. Magnus will maintain an information security program, including security policies, standards and procedures (collectively “Information Security Policy”). The Information Security Policy will be reviewed and updated as needed on an annual basis. All Magnus personnel will undergo training on the Magnus Information Security Policy.
7.6. In the event Magnus becomes aware that an unauthorized person has accessed Client Data or a security breach has occurred affecting Client Data held in the Service, Magnus will promptly (within 3 business days) notify Client of the breach and take steps to limit and mitigate such breach to the extent possible.
7.7. In general, Magnus provides access to data held in the Service regarding Authorized Users solely through tools and features made available through the Service. In the event any person, whether an Authorized User or not, requests Magnus to provide access to data within the Service outside standard Service tools and features, including request for copies of an Authorized User’s education records or other Client Data, Magnus may decline to provide such data, unless it is required to do so by applicable law or court order. If Magnus is considering providing such data, whether due to legal requirements or otherwise, Magnus shall inform Client of such request in writing if allowed by law and will provide Client with a copy of the request and related information. Magnus shall in all events coordinate with Client any response to requests for Client Data received by Magnus.
8.1. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.
8.2. Magnus warrants that the Service will substantially conform to the Documentation. In the event of a breach of this warranty by Magnus that is reported by Client to Magnus within sixty (60) days after delivery of the Service, as Client’s sole and exclusive remedy, Magnus will, at its expense, use commercially reasonable efforts to cause the Service to conform.
8.3. Client represents and warrants that all Client Data provided to Magnus in connection with Client’s use of the Site and the Service: (i) is owned by Client, or Client has the full right to provide the Client Data to Magnus; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. Magnus is not responsible for reviewing or monitoring any Client Data except as expressly agreed in an Order Form.
8.4. Client further represents and warrants that its use or disclosure of Client Data in connection with the Service is not in breach of any confidentiality obligation that Client has to any other person or entity.
8.5. Although the Sites and Service may assist in managing medical information and may provide information in the field of health care, nothing in the Service or Sites should be used as a substitute for medical advice or other professional advice. Any information and tools on the Sites and Service are for informational purposes only and are not intended to provide a diagnosis or take the place of consultation or advice from a health care professional. Client shall be solely responsible for all decisions made using the Service.
8.6. Client should not rely solely on the Service or Sites for medical or health decisions. A physician or another qualified healthcare provider should be consulted for medical diagnosis or treatment of any medical conditions or concerns Client may have regarding any Authorized User.
8.7. Client should never delay seeking medical (or other professional) advice or disregard any advice received because of anything on the Sites or Service. If Client thinks there may be a medical emergency involving an Authorized User, Client should call 911 immediately.
8.8. Magnus does not warrant that the Service will operate uninterruptedly or error free. Client acknowledges that Magnus has no control over the functioning of the Internet and Magnus makes no representations or warranties of any kind regarding the performance of the Internet.
8.9. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MAGNUS AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; WARRANTIES OF NON-INFRINGEMENT; OR ANY WARRANTIES ARISING AS A RESULT OF CLIENT USAGE IN THE TRADE OR BY COURSE OF DEALING.
9.1. Client agrees that the aggregate liability of Magnus and its affiliates relating to this Agreement and the Services shall be limited to the amount of fees actually received by Magnus from Client under this Agreement during the one-year period immediately preceding the first incident which gave rise to the claims. In no event shall either party be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property or death; or any lost sales, profits or data, even if such party is told that any of such damages may occur. Magnus is not responsible for any personal injury or death relating to Client’s or any Authorized User’s misuse or use of the Site or Services. Any action by either party must be brought within one (1) year after the cause of action arose.
9.2. Magnus will defend Client from and against all third-party claims and suits brought against Client alleging that the Service infringes or misappropriates any U.S. copyright, patent, trade secret or other intellectual property right, and will indemnify Client against all costs, fees (including, without limitation, attorneys’ fees), and damages finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Magnus in writing of, any such claim, provided that: (a) Client notifies Magnus promptly in writing of any such claim; (b) Magnus has sole control of the defense and all related settlement negotiations (except that Magnus may not settle any such claim unless it unconditionally releases Client of all liability), and (c) Client provides Magnus with all commercially reasonable assistance, information and authority to perform the above at Magnus’ expense. The foregoing indemnity shall not apply if the alleged infringement is attributable to: (i) any modification to the Service or Software by Client or any person or entity other than Magnus, (ii) use of the Service or Software other than in accordance with this Agreement; or (iii) any Client Data. If such a claim is made or in Magnus’ opinion is likely to be made, Magnus may at its option, modify the Service or Software so that it becomes non-infringing, procure, at Magnus’ expense, the right for Client to continue using the Service or Software, or terminate this Agreement and pay Client a pro-rata refund of Fees paid for use of the Service or Software in advance. This Section states Magnus’ sole liability and Client’s sole remedy with respect to any infringement of any intellectual property rights involving the Service or Software.
9.3. Client shall defend Magnus and its third-party service providers from and against all third-party claims and suits brought against Client alleging that the Client Data infringes or misappropriates any U.S. copyright, patent, trade secret or other intellectual property right, or arising from Client’s breach of this Agreement or any misrepresentation made by Client pursuant to this Agreement or use of the Service in violation of applicable law, and will indemnify Magnus against all costs, fees (including, without limitation, attorneys’ fees), and damages finally awarded against Magnus as a result of, or for amounts paid by Magnus under a settlement approved by Client in writing of, any such claim, provided that: (a) Magnus notifies Client promptly in writing of any such claim; (b) Client has sole control of the defense and all related settlement negotiations (except that Client may not settle any such claim unless it unconditionally releases Magnus of all liability), and (c) Magnus provides Client with all commercially reasonable assistance, information and authority to perform the above at Client’s expense.
Neither Client nor Magnus may assign or otherwise transfer this Agreement without the prior written consent of the other party, except that such consent shall not be necessary in connection with the sale of all or substantially all of such party’s business or portion of such party’s business to which this Agreement relates, so long as such acquirer is not a competitor of the other party. Any permitted assignee must agree in writing to the terms of this Agreement.
11.1. The parties are independent contractors, and nothing in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between Magnus and Client.
11.2. Any notice or other communication required or permitted in this Agreement shall be in writing and delivered to the addresses listed on the Order Forms applicable to this Agreement either: (i) by email; (ii) by personal delivery; (iii) by certified mail; or (iv) by nationally recognized overnight courier, and shall be effective upon receipt.
11.3. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Magnus regarding future functionality or features or any other promises not specifically set forth in this Agreement. This Agreement may not be modified or waived except in a written document, signed by both parties.
11.4 This Agreement shall be governed by and interpreted in accordance with the laws of the state of North Carolina, without giving effect to its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement.
11.5. Each party shall attempt in good faith to resolve any controversy, claim or dispute of whatever nature arising out of or relating to this Agreement (“Dispute”) promptly by negotiation between executives or managers who have authority to settle the Dispute. Each party shall provide the other with information and documentation reasonably requested by the other party to substantiate its position with respect to the Dispute.
11.6. The parties irrevocably submit to, and waive any objection to, the jurisdiction and venue of the United States District Court for the Eastern District of North Carolina or the state courts of North Carolina located in Wake County, North Carolina, with respect of any claim arising from or relating to this Agreement.
11.7. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond its reasonable control, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, or failure of telecommunication or internet service providers.
11.8. Neither the Service, Software, nor any direct product thereof or technical data related thereto, shall be exported or re-exported by Client in violation of any export or import regulations of the United States or any other applicable jurisdiction, including but not limited to the United States Export Administration Regulations and end-user, end-use, and country destination restrictions issued by the United States and other governments.
11.9. During the term of this Agreement and in accordance with the provisions contained herein, Client shall permit Magnus to use its names, trademarks and logos in marketing related activities, including but not limited to press releases, web-site showing and links, and marketing of collateral materials, and to reference that Client is a customer in its marketing activities. Prior to release of any press release or marketing materials, Magnus shall submit to the Client for review all such materials and the intended usage of such materials.
11.10. There are no intended third-party beneficiaries of this Agreement, and nothing in this Agreement may be relied upon by, or shall benefit, any party other than Magnus and Client.
11.11. Client acknowledges that a student who uses the Service, and/or custodians in charge of that student’s care, has access to that student’s health records as maintained by the Service (also known as the “Student Health Record” or “SHR”) for viewing information only. Client acknowledges that Magnus may offer to students who have graduated or who are no longer attending Client’s school, a service option (the “Conversion Service”) which, upon request of an authorized person and payment of any annual fee or applicable service charge in effect, allows the SHR to be converted to the Personal Health Record (“PHR”). This may occur whether Client has purchased the SHR or not. The Conversion Service, as presently offered, allows the student to both view stored information as well as to upload and add new information after graduation or attendance. Client further acknowledges that Magnus desires and intends to promote and offer the Conversion Service to graduating or non-attending students and/or their custodial contacts (the “Conversion Service Promotion”). Client acknowledges and agrees that Magnus may contact each student and/or their custodial contact upon graduation through electronic mail communications (e-mails) to the student’s and/or custodial contact’s e-mail address on file with Client, for promotional purposes related to any services which Magnus may be offering at any particular time, including but not limited to, the Conversion Service. Magnus agrees that every such promotional email shall contain an “unsubscribe” option within such promotional e-mail in the event that the student, or custodial contact (as the case may be), no longer desires to receive such promotional e-mails from Magnus for the services it may be offering related to the student’s PHR. In the event that the student, or custodial contact (as the case may be), opts to unsubscribe from Magnus’ e-mail list, Magnus will unsubscribe the recipient and agrees it will no longer send such promotional offers or marketing material. Client acknowledges Magnus’ intended use of the student’s and/or custodial contact’s e-mail address for the sending of promotional and marketing communications in the future.
11.12. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of the Agreement and all provisions not affected shall remain in full force and effect. Both parties will attempt to substitute with a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
11.13. Headings to clauses are for ease of reference only and will not affect the interpretation of this Agreement.
11.14. This Agreement may be executed in any number of counterparts and by the parties upon different counterparts, each of which shall be deemed to be an original, but which together shall constitute one and the same agreement.
This agreement was updated on: 12/20/2017