1upHealth Terms of Service
These Terms of Service, along with any, Order Forms, attachments, and exhibits(this “Agreement”) effective as of the day fully executed (“Effective Date”) is entered into by and between 1upHealth, Inc. (“1upHealth”) with offices at 280 Summer Street, Boston, MA 02210 and the entity, along with any subsidiaries and affiliates identified on an Order Form subject to the term hereto (collectively referred to as “Customer”).
IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
1. Definitions.
The following terms, when used in Terms of Service will have the following meanings:
a. “1upHealth Materials” means software, hardware, programming tools, Documentation, reports, data, devices, know-how, methods, processes, and other inventions, works, and technologies, now existing or created after the date of the Agreement, related to the Services or other 1upHealth products or services, including such matter created or used by 1upHealth in connection with the Agreement or providing the Services, including all associated intellectual property rights. 1upHealth Materials also includes third-party reports, audits, and similar analyses, written or otherwise, about 1upHealth related to 1upHealth security and compliance procedures and policies.
b. “Agreement” means these Terms of Services and all Order Forms and Statements of Work (including any and all exhibits and attachments referenced therein).
c. “Applicable Law” means all applicable federal, state and local laws, statutes, acts, ordinances, rules, codes, standards, regulations and judicial or administrative decisions promulgated by any governmental agency, including the State, as any of the foregoing may be amended, modified, codified, reenacted, promulgated or published, in whole or in part, and in effect from time to time which is enforceable against a party.
d. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is either marked as confidential or proprietary; has been identified in writing as confidential or proprietary within thirty (30) days of disclosure; or based on the nature of the information disclosed would, or should, be known to a reasonable person to be Confidential Information; provided, however, that (i) information related to or regarding a disclosing party’s business plans, finances, strategies, and current and prospective customers will be deemed Confidential Information of the disclosing party; and (ii) all information concerning the 1upHealth Materials; and (iii) the terms of the Agreement shall all automatically be considered Confidential Information.
e. “Documentation” means the printed and digital instructions, on-line help files, technical documentation, technical specifications, and user manuals for the 1upHealth Services, if any.
f. “Order Form” means any commercial order form entered into by and between the parties for the Services attached hereto or otherwise executed by and between the parties and subject to the terms of the Agreement.
g. “Services” means the 1upHealth platform, including all products and services, as modified or supplemented from time to time that allows Customers to convert, store, analyze, and exchange (i.e. send and receive) relevant patient information with other persons who are legally authorized or permitted to receive such information.
h. “Statement of Work” or “SOW” means any statement of work entered into by and between the parties for the provision of professional services, attached hereto or otherwise executed by and between the parties and subject to the terms of the Agreement.
2. Services.
a. Subject to Customer’s payment of all applicable fees, 1upHealth hereby grants Customer a non-exclusive, non-assignable, limited right and license during the term of the Agreement to access and use the Services solely in accordance with, and as permitted by, these Terms of Services, the Documentation, Applicable Law and any other scope limitation specified in an applicable Order Form or SOW. Except as expressly granted herein, 1upHealth hereby retains any and all rights, including all intellectual property and copyrights, in the 1upHealth Materials.
b. Customer may from time to time provide suggestions, comments or other feedback (“Feedback”) to 1upHealth with respect to the Services. 1upHealth will be free to use, disclose, reproduce and otherwise exploit the Feedback as it sees fit, and may proceed with the development of enhancements, new features or functionality based on such Feedback at its sole discretion.
c. All Services are performed, controlled, and operated from US-based facilities, and 1upHealth makes no representations that the Services are appropriate or available for use in other locations. If End Users located outside the United States access or use the Services to store, process, or transmit data, or if Customer or its End Users use the Services to process data concerning patients located outside of the United States, Customer understand that Customer and not 1upHealth, is entirely responsible for compliance with all applicable laws and regulations related to such activities, including but not limited to export and import regulations. Customer may not use the Services if Customer is a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
d. Customer hereby consents to 1upHealth’s use of subcontractors and agents in the performance of its obligations hereunder; provided that 1upHealth will remain fully liable for the acts and omissions of its agents and subcontractors as if performed by 1upHealth.
e. 1upHealth may immediately and without notice limit, suspend, or terminate Customer’s access to or use of the Services to correct or prevent a breach of 1upHealth’s privacy policies, terms and conditions, and the provisions of the Agreement, including without limitation those contained in an SOW by Customer or End Users. 1upHealth may revise foregoing from time to time and will give Customer reasonable notice before such revisions begin to apply to Customer.
f. From time to time, 1upHealth may offer beta features of the Services to Customer, and Customer may choose to try such beta offerings or not in Customer’s sole discretion. Customer acknowledges that (i) such features are not eligible for any warranties under these Terms of Service, (ii) such features may contain errors, design flaws or other problems, (iii) it may not be possible to make such features fully functional; (iv) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (v) such features may change and may not become generally available; and (vi) 1upHealth is not obligated in any way to continue to provide or maintain such features for any purpose in providing the Services pursuant to these Terms of Service. Such beta features are provided “AS IS” and 1upHealth makes no warranties of any kind with respect to any beta features.
3. Customer Obligations.
a. Customer hereby agrees that neither it nor its End Users will do any of the following: (i) Use the Services to load, store, or transmit data that infringes the rights of third parties; (ii) Provide access to or use of the Services to anyone other than End Users; (iii) Resell, sublicense, lease, encumber, copy, or transmit the Services or Documentation; (iv) Use the Services, or any part thereof, for a purpose that is abusive, deceptive, or violates any Applicable Law or in violation of these Terms of Service, the Documentation, or any Order Form or SOW; (v) Derive specifications from, reverse engineer, reverse compile, disassemble, translate, record, or create derivative works based on the Services; (vi) Use the Services in a way that materially delays, interferes with, or compromises the functionality or security of any 1upHealth products or services, or equipment, software, or systems included with or supporting such items, or that compromises the confidentiality or privacy of data loaded, stored, or transmitting using the Services; (vii) Perform security, benchmark, or penetration testing of the Services or related infrastructure, or disclose the results of such testing, without the prior written consent of 1upHealth’s Chief Security Officer; and (viii) Remove or modify 1upHealth or third-party trademarks or proprietary rights notices contained in or on the Services.
b. For the avoidance of all doubt, use of the1upHealth Services will not be considered medical advice and the 1upHealth Services are not intended for use of determining the accuracy, completeness or appropriateness of any clinical, billing, coding, diagnostic, or other health information provided by Customer, any End User, or by any other third party.
c. Customer shall obtain and operate all systems and equipment needed to connect to, access or otherwise use the Services. Customer shall ensure that all systems and equipment are compatible with the Services. Customer is solely responsible for maintaining the integrity and security of its systems and equipment (physical, electronic, and otherwise).
4. Payment Terms.
a. Customer will pay the fees set forth in, and in accordance with, the relevant Order Form and/or SOWs. Unless otherwise set forth on the Order Form, fees are quoted and payable in United States dollars. All fees and payments will be due and payable thirty (30) days after the invoice date without any withholding, deduction, offset, setoff, or other charge. Any payments or portions thereof due hereunder which are not paid on the date such payments are due will bear interest at a rate of the lesser of (i) 1.5% per month or (ii) the highest rate allowed by law. In addition to the foregoing, failure to pay owed amounts for a period that is longer than sixty (60) days
from the date such amounts are due, may, at 1upHealth’s sole discretion, result in a late payment, limitation, or suspension of Customer’s use of the Services until such overdue amounts are paid in full, or termination of these Terms of Service in accordance with Section 9. 1upHealth’s remedies under this Section are cumulative of other remedies available under these Terms of Service or at law.
b. Following the termination of the Initial Term (as defined herein) of any Order Form or SOW, 1upHealth shall be entitled to increase the fees charged for any Service once per calendar year. 1upHealth shall provide Customer with written notice of any such pricing increase at least ninety (90) days prior to the increase. Customer will be deemed to have accepted the increase if it does not dispute in writing the increase within seventy-five (75) days receipt of notice.
c. Customer will be responsible for all federal, state and local taxes and charges imposed on Customer or with respect to the Services that are the subject of the Agreement (e.g., sales, use, excise, property, VAT, and other similar taxes). If 1upHealth pays or is required to pay such taxes or related penalties or interest on Customer’s behalf, Customer will promptly upon request pay 1upHealth all such amounts.
5. Confidential Information.
a. During the term of the Agreement, the parties acknowledge that the exchange of Confidential Information may be required. The receiving Party acknowledges that the Confidential Information of the disclosing Party constitutes valuable trade secrets and proprietary information of the disclosing Party, and the receiving Party agrees that it will use the Confidential Information of the disclosing Party solely as required in furtherance its obligations under the Agreement, and solely in accordance with the provisions of the Agreement. The receiving party will use the same degree of care, but not less than a reasonable degree of care, in protecting the disclosing party’s Confidential Information to prevent unauthorized use, disclosure or publication as it uses to protect its own confidential information. The receiving party will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the disclosing Party’s prior written consent, except as otherwise permitted hereunder. However, the receiving Party may disclose the Confidential Information of the disclosing Party, in whole or in part (a) to its employees, officers, directors, attorneys, auditors, financial advisors and/or subcontractors who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of these Terms of Service; or (b) as reasonably deemed by the receiving Party to be required by Applicable Law (in which case the Receiving Party will provide the other with prior written notification thereof, will provide the disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by Applicable Law).
b. Confidential Information will not include any information which (a) publicly known through no fault of receiving Party; (b) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party; (c) was properly disclosed to receiving Party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Confidential Information does not include Protected Health Information, or PHI.
c. In the event of actual or threatened breach of the provisions of this Section, the Disclosing Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms of Service.
6. Representations, Warranties, and Exclusions.
a. Each party represents, warrants and covenants to the other party as follows: (i) it is an entity organized and existing under the laws of its jurisdiction of incorporation with full power and authority to enter into and perform the Agreement; (ii) the Agreement has been duly authorized by all necessary corporate action and constitutes the binding obligation of such party enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy laws or other laws affecting the rights of creditors generally; (iii) the person(s) executing the Agreement on its behalf has actual authority to bind it to the Agreement; (iv) such party’s execution and performance of the Agreement does not and will not violate or conflict with any provision of such party’s governing corporate instruments or of any commitment, agreement or understanding that such party has or will have to or with any person or entity; and (v) it will comply with all Applicable Laws now or hereafter enacted, of any jurisdiction in which performance occurs or may occur hereunder.
b. 1upHealth further warrants that Services will be performed in a professional and workmanlike manner and substantially in accordance with the Documentation and any other specifications set forth in the SOW(s). Customer’s exclusive remedy for a breach of this Section 6 will be to require 1upHealth to re-perform the non-conforming Services at no additional charge; provided, however that Customer must give 1upHealth written notice of a claim of such non-conforming Services within thirty (30) days of performance thereof. Failure to provide such written notice shall be deemed conclusive evidence that the Services conformed to the Agreement and the relevant SOW.
c. CUSTOMER EXPRESSLY AGREES THAT ITS USE OF THE SERVICES IS AT ITS SOLE RISK AND THAT THE SERVICES AND ANY DATA OR MATERIALS PROVIDED OR MADE AVAILABLE BY THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY STATED IN THIS SECTION AND THE SUPPORT AND SERVICES LEVEL COMMITMENTS IN EXHIBIT A, 1UPHEALTH MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, AND SPECIFICALLY DISCLAIM ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, NOR DOES 1UPHEALTH GUARANTEE UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SERVICES OR THAT ERRORS WITH A ROOT CAUSE NOT IN 1UPHEALTH’S CONTROL IN THE SERVICES WILL BE CORRECTED. 1UPHEALTH WILL NOT BE LIABLE FOR ERRORS OR DAMAGES OF ANY KIND CAUSED BY THIRD PARTY CRIMINAL ACTS, LIMITATIONS INHERENT IN THE USE OF THE INTERNET, OR THIRD-PARTY HARDWARE, SOFTWARE, SYSTEMS, OR DATA. 1UPHEALTH IS NOT RESPONSIBLE TO CUSTOMER OR ANY THIRD PARTY FOR UNAUTHORIZED ACCESS TO DATA OR THE UNAUTHORIZED USE OF THE SERVICES AS A RESULT OF CUSTOMER’S INTENTIONAL OR UNINTENTIONAL ERROR, OR OMISSION.
7. Indemnification.
a. 1upHealth will defend, indemnify, and hold Customer harmless from and against any liability, claim, action, loss, damage or expense (including court costs and reasonable attorneys’ fees, finally awarded) based on any third-party claims brought against Customer based on an allegation that Customer’s use of the Services in accordance with the Agreement infringe any third-party intellectual property rights. If the Services are held to infringe (or if 1upHealth reasonably believes will be held to infringe) any third-party intellectual property rights, 1upHealth may, at its option and expense: (i) modify the Services to make them non-infringing; or (ii) obtain a license that permits Customer to continue using the Services. If 1upHealth does not believe either option is reasonably practicable, 1upHealth may terminate the Agreement. Notwithstanding the foregoing, 1upHealth will have no obligation for any infringement of intellectual property rights relating to the Services to the extent that arising out of: (i) use of the Services in combination with other products or services; (ii) designs, requirements, or specifications required by or provided by Customer; (iii) use of the Services in breach of these Terms of Service or outside the scope of the license granted to Customer; (iv) Customer’s failure to use the Services in accordance with 1upHealth-provided documentation; or (v) any modification of the Services by or on behalf of Customer. This Section states 1upHealth’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property rights arising from Customer’s use of the Services.
b. Customer will defend, indemnify and hold 1upHealth harmless from and against any liability, claim, action, loss, damage or expense (including court costs and reasonable attorneys’ fees finally awarded) based on any third-party claims arising out of, or relating to (i) any use or operation of, or access to the Services by Customer or an End User, excluding claims caused by 1upHealth indemnification obligations pursuant to Section 7.1(a); or (ii) any breach or alleged breach by Customer of Sections 3 of these Terms of Services
c. If at the option and request of the party seeking indemnification (“Indemnified Party”), the indemnifying party (“Indemnifying Party”) will take over the defense of an eligible third party claim (“Claim”), the Indemnified Party will: (i) give the Indemnifying Party prompt written notice of the Claim; (ii) grant the Indemnifying Party and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim, as the Indemnifying party may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, the Indemnifying Party will not enter into any settlement that involves an admission of guilt or liability of the Indemnified Party without such party’s prior written consent. The Indemnified Party may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
8. Limitations of Liability.
a. NEITHER PARTY NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EACH PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO 1UPHEALTH DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. The foregoing Limitation of Liability shall not apply to any damages arising out of either party’s indemnification obligations as set forth in Section 7 (“Indemnification) of these Terms of Service.
b. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the parties. This allocation is reflected in the pricing offered by 1upHealth to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of the Agreement. The limitations in this will apply notwithstanding the failure of essential purpose of any limited remedy in the Agreement. Some jurisdictions do not allow the exclusion or limitation of damages. This Section will apply solely to the extent permitted by applicable law.
c. Each party agrees to obtain and maintain, in full force and effect throughout the term of the Agreement, comprehensive general liability insurance, professional liability insurance (if applicable), and network security and privacy liability insurance in the amounts that are commercially reasonable and customary for their respective operations. A copy of any such policy or a certificate evidencing the policy shall be provided to either party upon the other party’s written request.
9. Term; Termination.
a. The term of these Terms of Service shall commence as of the Effective Date and shall continue until it has been terminated by either party in accordance with this Section 9. For the avoidance of doubt, these Terms of Service may not be terminated while any Order Form or SOW remains in effect between the parties. The initial term (“Initial Term”) of any Order Form or SOW subject to these Terms of Service shall be as set forth on such relevant Order Form or SOW. An Order Form shall automatically renew for consecutive one (1) year periods on the termination of the Initial Term, and the respective anniversary thereof, (each a “Renewal Term” and collectively “Renewal Terms”), unless either party provides the other with written notice of their intent to not renew at least ninety (90) days prior to the termination of the then current twelve (12) month term. The “Term” of any Order Form or SOW shall mean the Initial Term and any Renewal Terms.
b. Either party may terminate these Terms of Service and/or any existing Order Form or SOW (i) with cause in the event the other party breaches any material obligations hereunder or under an SOW, which breach has not been cured within thirty (30) calendar days after receipt of written notice of such breach by the non-breaching party or within such additional cure period as the non-breaching party may authorize in writing (provided, however, that the non-breaching party may terminate immediately upon the breaching party’s receipt of written notice from the non-breaching party to the extent the breach is incapable of cure); or (ii) effective immediately, in the event the other party (A) makes a general assignment for the benefit of its creditors, (B) is subject to the appointment of a trustee or receiver or similar officer of the court for any of its property, or (C) files or have filed against it a petition under the bankruptcy or insolvency laws. In no event will the termination of these Terms of Service, or any Order Form or SOW relieve Customer of its obligations to pay any fees payable to 1upHealth for the 1upHealth Services. Customer’s and End Users’ right to access and use the Services will end on the effective date of termination.
10. Miscellaneous.
a. These Terms of Service any other attached Exhibits hereto, and any associated Order Forms and/or SOWs, which are incorporated herein by reference, represents the entire understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous oral or written representations, understandings, or agreements, and may be modified from time to time by 1upHealth. The Agreement may not be assigned by either party without the other party’s prior written consent; provided, however, either party may assign the Agreement without requiring the consent of the other party if such assignment is in connection with a merger, consolidation, or other acquisition of such party, or the sale of substantially all of such party’s assets, in each case so long as such party’s successor agrees to be bound by the Agreement. Any other assignment will be void. If any part of the Agreement is declared invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the remainder of the Agreement, unless the Agreement so construed fails to meet the essential business purposes of the parties as manifested herein. Notices required or permitted under the Agreement will be via electronic mail or in writing given to the party at the address specified in the Agreement by hand delivery, certified mail, return receipt requested, or by overnight delivery. Each party is an independent contractor in the performance of the Agreement. Neither party has the agency or authority to bind the other party in any way or direct or control the other party’s performance. No third-party beneficiaries are intended or created by the Agreement.
These Terms of Service will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to its conflict of laws provisions. Any action arising under the Agreement will be brought exclusively in the state or federal courts located in Suffolk County of Massachusetts, and the parties irrevocably consent to the jurisdiction of such courts. Sections 1, 3, 4, 5, 6, 7, 8, and 10 will survive the expiration or termination of these Terms of Services. Notwithstanding any provision of this Agreement to the contrary, 1upHealth may use and display the Customer’s name, logo and similar indicia to identify Customer as a customer of 1upHealth and may use Customer’s name in connection with the Services and as otherwise set forth herein. A party is not liable under the Agreement for delay in performance or non-performance caused by events or conditions beyond the party’s reasonable control, including without limitation acts of God, fire, war, terrorism, epidemic, pandemic, third party criminal acts, any law or governmental regulations, or labor dispute, and the period of performance will be deemed extended to reflect such delay as agreed by the parties. Notwithstanding the foregoing, nothing herein is intended to relieve Customer of any payment obligations under an Order Form or SOW.
Effective Date: August 1, 2024
EXHIBIT A
Support Services and Service Level Agreement
Support Services:
1upHealth will provide standard technical support during standard business hours [9am – 6pm EST], Monday through Friday, excluding federal U.S. holidays. 1upHealth will inform Customer in advance of changes to its standard business days and hours and methods to request support.
Support Services include (1) responding and correcting reported errors and bugs (“Error Correction”) and (2) the provision of updates, new releases, and other generally available improvements to the Services (“Updates”). For the avoidance of all doubt Error Correction does not include non-Services errors (e.g., errors caused by hardware, software, or systems not within the sole control of 1upHealth or caused by Customer or Customer’s network failures or negligence).
Authenticated support tickets may be submitted by a Customer at any time via the 1upHealth Support Portal.
Any other professional services offered by 1upHealth, such as implementation services, supplemental services, or any other Customer specific requests, modifications, or customizations, (collectively “Professional Services”) are not included in Support Services and will be chargeable at agreed upon rates for such services or by way of an Order Form or SOW under the Agreement.
1upHealth’s response and resolution times will be based on the attributed Severity Level of the support ticket:
| Severity Level | Definition | Response Time |
|---|---|---|
|
Severity 1 |
A production system or environment is critically affected and/or is not functional, resulting in an inability to use the Services, or a major portion of the Services. |
Thirty (30) minutes from 1upHealth’s receipt of the Support Ticket |
|
Severity 2 |
A system or environment is responsive and functional, but performance is degraded, impeding critical business processing or causing disruption to normal production workflow. |
Four (4) business hours from
1upHealth’s receipt of the Support Ticket |
|
Severity 3 |
A non-critical issue that has no significant impact on the performance or use of the Service, but the user experience may be affected. |
One (1) business day from 1upHealth’s receipt of the Support Ticket. |
For the avoidance of all doubt, “Support Ticket” as used herein, shall only include tickets submitted via the 1upHealth Support Portal. The Response Times set forth below do not apply to any other support requests submitted in alternative format.
For any Severity 1 ticket, 1upHealth shall use commercially reasonable efforts to provide an effective workaround or resolution within twenty four (24) hours after 1upHealth’s receipt of the ticket, so long as the incident is not the result of a third-party and/or circumstances that are not within 1upHealth’s sole discretion and control and Customer has provided 1upHealth with access to all of the necessary information and support reasonably required by 1upHealth to provide an effective workaround.
Service Level Agreement:
1upHealth shall provide 99% access to and use of the 1upHealth Services, as applicable, twenty-four (24) hours per day, seven (7) days per week, excluding solely Scheduled Maintenance (each such availability percentage, as measured each calendar month, the “Availability Level”).
Any maintenance required by 1upHealth in support of the Services must occur during weekend hours, or on weekdays between 1:00 to 5:00 AM Eastern Time (“Scheduled Maintenance”). Under exceptional circumstances, 1upHealth may be required to perform emergency maintenance, during which time the Services may be unavailable to Customers outside of the time frames set forth above (“Service Outage”). 1upHealth will use reasonable efforts to notify Customer as promptly as possible of any actual or anticipated
Service Outage, but in no event less than twenty-four (24) hours after a Service Outage has begun. Customer will provide access to its designated contacts to assist 1upHealth with correcting any Service Outage problems in a timely manner. 1upHealth will also provide updates to Customer until the Service Outage has been corrected. All notices provided by 1upHealth hereunder shall be delivered via the 1upHealth Support Portal
For the avoidance of all doubt, in addition to Scheduled Maintenance and Service Outages, the foregoing Service Level is not applicable to outages caused by external circumstances beyond the control of 1upHealth such as weather, acts of terror (“Force Majeure Event”) or any third-party systems; any outages due to the misuse of the Services by Customer, including, but not limited to use of the Services not on the most current version; and any outages caused by Customer’s equipment, hardware, or internet connections or third-party systems.
For each month during which 1upHealth fails to meet the Availability Level, 1upHealth will credit Customer as follows:
| Availability Level | Service Level Credit (as a percentage of monthly Services Fees) |
|---|---|
|
96.0 – 98.9% |
1% |
|
94.0 – 95.9% |
5% |
|
92.0 – 93.9% |
10% |
|
90.0 – 91.9% |
15% |
|
89.9% or lower |
20% |
Accrued Service Level Credits will be paid as a credit to Customer’s subsequent renewal. Notwithstanding anything set forth herein to the contrary, Customer’s right to receive Service Level Credit(s) will be Customer’s exclusive remedy for 1upHealth’s failure to meet the Availability Levels. Remedies will not accrue if Customer is not current in its payment obligations either when the unavailability occurs or when the credit would otherwise be issued. To receive Service Level Credits, Customer must submit a written request, within sixty (60) days after the end of the calendar month in which the Services were unavailable, or Customer’s right to receive such Service Level Credits with respect to such unavailability will be waived.