Latest update, July 13th, 2020
Subject to the terms and conditions of this Service Agreement (Agreement), entered into as of (the “Effective Date”), by andbetween nuiloa with its principal place of business located at 304 S. Jones Blvd #4431, Las Vegas, NV 89107 (“nuiloa”), and (“Client”). nuiloa shall provide to Client communication products and services, defined herein as services (nuiloa Services) andall other services performed under this Agreement subject to the following terms and conditions:
A. Representations, Warranties & Limitations of Liability:
1. nuiloa will comply with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder and all amendments to such Act or regulations (“HIPAA”), the Health InformationTechnology for Economic and Clinical Health Act, Title XIII Div. A and Title IV of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) and regulations promulgated thereunder and all amendments to such Actor regulations (“HITECH Act”), and related applicable federal, state, and local privacy laws, regulations, rules and requirements, and applicable PCI Security Standards Council requirements, regarding the protection and security of non-public personal, medical and financial information that govern or apply to the Services nuiloa performs under this Agreement.
2. nuiloa Products and Services will enable Client to comply with the Health Insurance Portability and accountability act of 1996 and regulations promulgated thereunder (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Title XIII Div. A and Title IV of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) and regulations promulgated thereunder and all amendments to such Act or regulations (“HITECHAct”), and related applicable federal, state, and local privacy laws, regulations, rules and requirements regarding the protection and security of non-public personal, medical and financial information that govern or apply to the products or the Services nuiloa performs under this Agreement. nuiloa will perform all revisions required to ensure that the Client remains in compliance at no additional charge to the Client.
3. nuiloa shall use commercially reasonable efforts to ensure the accuracy, integrity, and reliability of Client’s data while any such data is under the control or dominion of nuiloa, however, nuiloa does not and cannot independently verify or review the information transmitted through the nuiloa system for accuracy or completeness.
4. nuiloa warrants that the Products and Services will (i) perform substantially as described in its written documentation and product demonstrations and (ii) be performed in a professional and workmanlike manner to standards generally accepted in the industry. nuiloa further warrants that the updates and/or upgrades to the products and services will not reduce the functionality and/or performance of the Products and Services from the previous version. nuiloa warrants that no employee, contractor, and/or agent has executed a non-compete agreement that precludes them from doing business with Client. EXCEPT AS IDENTIFIED IN THIS SERVICE AGREEMENT, NUILOA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THIS SERVICE AGREEMENT OR WITH RESPECT TO THE SUBJECT MATTER HEREOF. BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, NUILOA MAKES NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIMS, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. Except to the extent arising from the negligence or willful misconduct of nuiloa, breach of Section A.1.(Compliance with Laws) by nuiloa, breach of Section D (Confidentiality) by nuiloa, and nuiloa’s indemnification obligations of Section 8 (Infringement Indemnification) and subject to the limitations set forth below, Client shall indemnify and hold harmless nuiloa from and against any and all loss, damage, or expense (or claims of damage or liability) asserted against nuiloa by third parties and arising directly out of any breach of this Service Agreement by client due to acts or omissions of Client inconsistent with the terms and conditions hereof, or information provided to nuiloa by Client, or arising out of the use of such information when furnished by nuiloa to Client or to other third persons at Client’s request, or to officers, employees, and agents of Client.
6. Except to the extent arising from the negligence or willful misconduct of Client, and subject to the limitations set forth below, nuiloa shall indemnify and hold harmless Client from and against any and all loss, damage or expense(or claims of damage or liability) asserted against Client by third parties and arising out of any breach of this Service Agreement, due to acts or omissions of nuiloa inconsistent with the terms and conditions hereof, or information provided to Client by nuiloa, or arising out of the use of such information when furnished by nuiloa to Client, or to officers, employees, and agents of Client.
7. In no event, except for breach of Section A.1. (Compliance with Laws) by nuiloa, breach of Section D(Confidentiality) by nuiloa, and nuiloa’s indemnification obligations of Section 8 (Infringement Indemnification), or as specifically set forth herein, shall either party be liable to the other or any third parties for any claim, loss, or damage, or any special or consequential damages or otherwise, even if such party has been advised of the possibility of such damages. In no event will either party be liable for any claim, loss, liability, correction, cost, damage, or expense caused by the performance or failure to perform of such party hereunder which is not reported by the other party within thirty (30) days after the other party first became aware, or reasonably should have become aware, of such failure to perform.
8. nuiloa will indemnify, defend and hold Client harmless from any claim that Client’s access to the Products and services hereunder infringes a United States patent, United States copyright, a trade secret or proprietary right provided that Client notifies nuiloa promptly in writing of the claim, and provided that nuiloa has sole control of the defense and all negotiations for its settlement or compromise.
Invoices for transaction fees identified herein shall be submitted by nuiloa to Client on or about the 1st day of each calendar month with respect to nuiloa services during the preceding month. Each nuiloa invoice for transaction fees shall identify the transaction types, volumes, and applicable total charge represented by the amount invoiced. Payment for each invoice shall be due within 30 days of the receipt date of such invoice. If the Client fails to make payment with respect to any undisputed invoice by its due date, a late charge equivalent to 1.5% per month, or the maximum rate permitted by applicable law if less, shall apply to the undisputed unpaid balance while any such undisputed amount remains outstanding. nuiloa reserves the right to suspend the use of nuiloa Services at any time if undisputed past due invoices are not paid within 30 days following written Notice by nuiloa of such undisputed past due amounts, and all costs of collection, including reasonable attorneys’ fees shall be paid by Client.
C. Term and Termination:
The initial term of this Service Agreement shall commence on the Effective Date and shall continue for a period of one (1) year thereafter. This Service Agreement shall then automatically renew for additional one-year terms unless either party gives notice to the other at least 60 days before the end of the next expiration date of its decision not to renew this Service Agreement. This Service Agreement may be terminated at any time by either Party if the other Party materially breaches or fails to comply with its obligations or the terms and conditions of this Service Agreement.
Contemporaneously with the signing of this Agreement, the parties shall execute a Business Associate Agreement, which can be the Clients BAA.E.Miscellaneous:1. This Agreement shall be governed and construed in accordance with the laws of the State of Nevada. Venue for all purposes hereunder shall be in the state or federal courts located in Nevada and each party hereby submit to the jurisdiction thereof.
2. Neither party shall be in default or otherwise liable for any delay in, or failure of its performance under this service agreement, if such delay or failure arises by any reason beyond its reasonable control, including any act of God provided. (“Force Majeure Event”) Notwithstanding the foregoing language in this Section, a Force Majeure Event shall only serve to provide Client a reasonable amount of additional time to make payments under this Agreement with respect to nuiloa products or Services already provided, and shall in no event excuse Client’s obligations to make any payments.
3. Notices under this Service Agreement shall be in writing and delivered by registered mail, certified mail, overnight delivery, or courier to the address indicated in this Service Agreement or such other address as otherwise provided for by proper notice hereunder, and the effective date for any notice under this Service Agreement shall be the date of delivery of such notice, not the date of mailing. (“Notice”) Notices to nuiloa will be sent to the following: nuiloa304 S. Jones Blvd #4431, Las Vegas, NV 89107Neither party will assign this Service Agreement without written consent from the other party. This Service Agreement and any attachments, including the Business Associate Agreement, executed contemporaneously with the Service Agreement, represents the complete agreement between nuiloa and Client and shall be binding upon the parties as witnessed by their duly authorized representatives and signatures of each party below.