a. Term and Cancellation: The initial term (the “Initial Term”) of the Service Agreement (“Agreement”) for Internal Threat Assessment, External Threat Assessment, Email Threat Prevention, Network Security, Endpoint Security Agent, SIEM, PhishMe, Triage, Office 365, Cloud Backup, Software as a Service (SaaS), Infrastructure as a Service (IaaS), Mobile Device Management (MDM), Managed Network, Managed Endpoint, and/or Managed Security between One Source Communications, LLC (“One Source”) and the Customer receiving One Source services (“Customer”), to which these Terms and Conditions are attached shall be as set forth on such Agreement. Prior to the expiration of the Initial Term or any extension thereof, Customer and One Source may execute a renewal agreement, which will extend the term of the Agreement for such additional time as One Source and Customer may agree (a "Standard Renewal Term"). In the event that no renewal agreement is executed by Customer and One Source, upon the expiration of the Initial Term or any Standard Renewal Term, the Agreement shall automatically renew on the same terms and conditions (including, without limitation, the rates) for successive terms equal to the Initial Term (each successive term, an “Automatic Renewal Term”),unless either party notifies the other of its intention to terminate the Agreement by the end of the Initial Term, or any Standard Renewal Term or Automatic Renewal Term, as the case may be, such notice (the “Notice”) shall be in writing and provided to the other party at least thirty (30) days prior to expiration of the Initial Term, or the Standard Renewal Term or Automatic Renewal Term, as the case may be. In the event of such Notice, the Agreement shall terminate upon the expiration of the Initial Term, or Standard Renewal Term or Automatic Renewal Term, as the case may be. The Notice must be in the form of a letter, facsimile or e-mail. Customer shall notify One Source in writing if the Customer authorized contact person(s) identified in the Agreement is changed. One Source reserves the right to reject any Customer termination request received from any person other than an authorized Customer contact person.
b. Cancellation by Customer Prior to Installation: If Customer cancels or terminates an order within forty-five (45) days prior to the installation of services, One Source shall invoice Customer and Customer shall pay to One Source the following: (i) all standard installation charges; and (ii) all reasonable and actual costs incurred by One Source in connection with such order, including, without limitation, installation and other reasonable and actual costs incurred with third parties and/or service providers with respect to such cancelled service and labor costs for work performed by One Source employees with respect to such order.
c. Cancellation by Customer without Cause: The pricing for Internal Threat Assessment, External Threat Assessment, Email Threat Prevention, Network Security, Endpoint Security Agent, SIEM, PhishMe, Triage, Office 365, Cloud Backup, Software as a Service (SaaS), Infrastructure as a Service (IaaS), Mobile Device Management (MDM), Managed Network, Managed Endpoint, and/or Managed Security is based upon Customer’s commitment to obtain the services for the agreed upon term of the Agreement. If Customer terminates all or any part of the services obtained under the Agreement prior to the expiration of the Initial Term, or any Standard Renewal Term or Automatic Renewal Term then in effect, for any reason other than Cause (as set forth in the following Section (d)), then, in addition to One Source’s other rights and remedies available at law or in equity, Customer shall be liable for all invoices paid for by One Source on behalf of the Customer for services under the Agreement rendered through the effective termination date and transition period until all service provider and/or third party invoices are transferred back to the Customer at the Customer’s billing address. Additionally, Customer shall be liable to One Source for liquidated damages, and not as a penalty, in an amount equal to the product of 100% of the One Source monthly service fees under the Agreement multiplied by the number of months remaining in the Initial Term, Standard Renewal Term or Automatic Renewal Term, as applicable. One Source shall be entitled to the reasonable cost of collection of the foregoing amounts. In the event any legal action is initiated by one party to enforce its rights under the Agreement or these Terms and Conditions, the non-prevailing party shall be liable for the costs associated with such legal action including, without limitation, court costs and reasonable actual attorneys' fees incurred by the prevailing party.
d. Cancellation by Customer with Cause: In the event One Source fails to substantially cure any default or failure of performance within thirty (30) days after One Source’s receipt of Customer’s written notice describing with reasonable specificity of such alleged default or failure of performance, Customer may terminate Internal Threat Assessment, External Threat Assessment, Email Threat Prevention, Network Security, Endpoint Security Agent, SIEM, PhishMe, Triage, Office 365, Cloud Backup, Software as a Service (SaaS), Infrastructure as a Service (IaaS), Mobile Device Management (MDM), Managed Network, Managed Endpoint, and/or Managed Security for Cause by giving One Source a sixty (60) day written notice of termination. However, One Source's obligation to perform services is limited to actions which are reasonably in the control of One Source. The purpose for the sixty (60) day notice is to allow sufficient time for One Source to work with Customer to transfer the management of services back to Customer and to process the change of addresses on all invoices managed by One Source back to the Customer. Customer will be responsible for payment in full to One Source for all service provider and/or third party invoices paid by One Source during the transition period on Customer’s behalf until all service providers and/or third party invoices are transferred back to the Customer at the Customer’s billing address. One Source reserves the right to reject any Customer termination request received from any person other than an authorized Customer contact person.
e. Cancellation by One Source: One Source may terminate the Agreement at any time without cause and for One Source's convenience by providing Customer sixty (60) days' prior written notice of such termination. Additionally, upon the longer of (i) such notice as is required by the governing, regulatory body or (ii) thirty (30) days after Customer’s receipt of One Source’s written notice, One Source may refuse, terminate, discontinue or limit the use of service (either temporarily or permanently) to Customer or withhold the provision of ordered or contracted service, without liability of One Source to Customer, (a) if any balance owed by Customer to One Source is past due, (b) if Customer exceeds its pre-established credit limit and does not cure within the applicable notice period after receipt of such notice, which such notice may be by mail, fax or email, (c) when necessitated by conditions beyond One Source’s reasonable control, (d) for violation by Customer of any of the provisions contained in the Agreement or these Terms and Conditions (e) for violation by Customer of any law, rule, regulation or policy of any governing authority having jurisdiction over the service; or (f) by reason of any order or decision of a court, public service commission or federal regulatory body or other governing authority prohibiting One Source from furnishing the service. In addition, One Source may immediately and without notice terminate and/or block services without incurring liability to Customer for the following reasons: (i) fraud committed by Customer or a User of Customer’s Service; (ii) if Customer refuses to furnish information or furnishes false information essential for billing by One Source or for One Source’s determination of Customer’s credit worthiness; (iii) Customer indicates that Customer will not reasonably comply with a reasonable request from One Source for security for the payment of services; (iv) or Customer’s usage exceeds parameters based on historical usage by Customer. Customer’s service may be subject to suspension and/or disconnect if full payment has not been received from Customer within thirty (30) days following the statement date. If service is suspended by One Source and later restored, restoration of service will be subject to applicable reconnection fees, and Customer agrees to pay such fees. If service is disconnected by One Source and later re-installed, re-installation of service will be subject to all applicable installation charges, and Customer agrees to pay such charges if Customer was responsible for such re-installation having to be performed. In the event One Source permanently terminates service to Customer under this Section (e), the Agreement and these Terms and Conditions shall terminate. If such termination is a result of (a), (b), (d) or (e) or (i) through (iv) of this Section (e), Customer shall be liable for all liquidated damages set forth in Section (c) of these Terms and Conditions for all of the services terminated under this Section (e).
f. Final Invoice: Upon termination of the Agreement, One Source shall forward a final invoice to Customer, and such invoice will include, without limitation, all unpaid charges (including, without limitation, recurring charges) incurred and or paid on behalf of the Customer by One Source, including all applicable liquidated damages up to the effective date services are completely transferred back to the Customer.
g. One Source Contact Information for Cancellation: Customer shall use the following addresses for cancellation and/or disconnect requests only:
By email: please email request to: Service@OSTCM.com; or By US Mail, please mail request to:
One Source Communication
Attention: Customer Success
PO Box 1607
Greenville, N.C. 27835
Such request shall include all of the following that apply: (1) an itemized list of the service(s) that Customer wishes to disconnect; (2) reason that services are being disconnected and (3) exact date that the services requested need to be disconnected. h. One Source Equipment: If pursuant to the Agreement, One Source provided equipment owned by One Source for use by Customer ("One Source Equipment"), Customer hereby acknowledges and agrees that (i) except as otherwise specifically provided herein, One Source retains all right, title and interest in and to the One Source Equipment; (ii) the One Source Equipment may not be removed from its service location (as identified on the Agreement) without One Source’s prior written consent; (iii) Customer shall at all times keep the One Source Equipment free and clear from all claims, liens, encumbrances of other persons or entities; (iv) Customer shall not make any modifications, alterations or additions to the One Source Equipment; and (v) One Source or its designee may inspect the One Source Equipment at all reasonable times and Customer shall provide One Source access to the One Source Equipment for such inspection. Customer assumes all risk of loss or damage to the One Source Equipment from the date of delivery and at all times during the Term and any Automatic Renewal Term or Standard Renewal Term of the Agreement. At all times during the Term and any Automatic Renewal Term or Standard Renewal Term, Customer shall maintain property insurance insuring the One Source Equipment for full replacement value against loss, theft, damage and destruction and naming One Source as sole loss payee. Upon the request of One Source, Customer shall provide adequate evidence of such insurance to One Source. Customer shall notify One Source of any material damage or loss to the One Source Equipment and One Source shall promptly repair, at Customer's expense, any damage to the One Source Equipment, unless in One Source’s opinion such One Source Equipment has suffered irreparable damage or destruction or has otherwise been irretrievably lost or stolen (“Casualty Loss”). If any One Source Equipment has suffered a Casualty Loss, then One Source will replace the One Source Equipment with equipment of substantially similar type, feature, functionality and configuration, and Customer shall pay One Source within ten (10) days of demand the cost of such new equipment, which shall then be One Source Equipment. Any insurance proceeds received by One Source with respect to such Casualty Loss from the policy purchased by Customer shall be applied to the payment due from Customer to One Source for such replacement equipment. Upon the termination of the Agreement, Customer shall return the One Source Equipment to One Source. If Customer fails to deliver the One Source Equipment within seven (7) days following the termination of the Agreement, at One Source's option, One Source may (x) enter Customer's premises during normal business hours and remove the One Source Equipment, or (y) invoice Customer for the replacement value of the One Source Equipment and Customer shall pay such amount within seven (7) days of receipt of such invoice.
i. Service Fee Structure: During the Initial Term, or any Standard Renewal Term or Automatic Renewal Term, One Source reserves the right to implement rate adjustments to our Internal Threat Assessment, External Threat Assessment, Email Threat Prevention, Network Security, Endpoint Security Agent, SIEM, PhishMe, Triage, Office 365, Cloud Backup, Software as a Service (SaaS), Infrastructure as a Service (IaaS), Mobile Device Management (MDM), Managed Network, Managed Endpoint, and/or Managed Security with thirty (30) days' prior written notice, based on changes in administrative costs, carrier or vendor costs and/or economic conditions. Additionally, in the event that the number of individual licenses or subscriptions for third-party software, which is being provided to Customer as part of the services, increases by ten percent (10%) or more during the Initial Term, or any Standard Renewal Term or Automatic Renewal Term, One Source reserves the right to increase its fees to recover the additional costs of such licenses or subscriptions by giving Customer thirty (30) days' prior written notice of such increase.
j. Billing: Unless Customer is a party to a Communications Lifecycle Management , Mobility Management Services, Managed IT Services, and/or Managed Security Services Agreement with One Source ("CLM, MMS, ITS, and MSS Agreement"), Customer shall be invoiced monthly, quarterly, annually, or one-time for the services under the Agreement based upon the interval selected during the online checkout. Payment of Customer’s balance will automatically be charged to the credit card or bank information on file at the time the invoice is generated. If payment is not made within fifteen (15) days following the Customer’s One Source Invoice date, the Customer will incur a one and one-half percent (1.5%) finance charge; and, if payment for Customer’s balance due to One Source is not received within twenty-five (25) days following the Customer’s One Source Invoice date, the Customer will incur a late payment charge of five percent (5%) of the unpaid balance. Customer’s services will be subject to suspension and/or disconnection if Customer’s balance due to One Source is not received within thirty (30) days of the One Source Invoice date. In the event that a disruption occurs, Customer will be assessed a reconnection fee equal to the One Source service fee associated with the location(s) and/or device(s). If Customer is a party to a CLM,MMS, ITS, and/or MSS Agreement with One Source, invoices with respect to services under this Agreement shall be delivered to Customer at the same time as invoices are delivered with respect to the CLM, MMS, ITS, and/or MSS Agreement, and the terms for payment of the invoice with respect to services under this Agreement shall be the same as provided in such CLM, MMS, ITS, and/or MSS Agreement. If the customer elects to auto renew, the customer agrees to have their credit card or bank information on file automatically drafted on the day of the renewal. If the customer does not wish to auto renew, written notification must be provided within 30 days of renewal.
k. Dispute invoice charges: Any dispute concerning fees charged by One Source must be in writing delivered by Customer to One Source within sixty (60) days following receipt of the invoice containing the disputed charge. If One Source concludes charges were in error, a credit for the amount owed to Customer will be given on the next invoice.
l. Minimum Billing Requirement: Customer must maintain and will be billed minimum monthly fees for Internal Threat Assessment, External Threat Assessment, Email Threat Prevention, Network Security, Endpoint Security Agent, SIEM, PhishMe, Triage, Office 365, Cloud Backup, Software as a Service (SaaS), Infrastructure as a Service (IaaS), Mobile Device Management (MDM), Managed Network, Managed Endpoint, and/or Managed Security that are no less than eighty percent (80%) of the original Total Monthly Fee indicated on Customer’s executed Agreement, regardless of whether Customer's active locations and/or mobile devices decreases.
m. Notices: Unless otherwise specified, all notices and other documentation required or permitted to be given pursuant to the Agreement shall be in writing and shall be (i) delivered personally; (ii) deposited in the United States mail, registered or certified and postage prepaid with return receipt requested; or (iii) deposited with a reputable overnight courier service which provides a date stamped receipt; addressed to the applicable party at the address set forth in the Agreement or to such other address as hereafter may be furnished to the other parties in writing pursuant to this Section. All notices so given shall be deemed effective and received upon the earlier of (i) actual receipt; (ii) receipt and refusal; and (iii) attempted delivery and return by the carrier after five (5) or more days if written notice of attempted delivery was left at the address.
n. Modification: Neither the Agreement, nor these Terms and Conditions, may be amended or modified, except by written agreement executed by both parties. Notwithstanding the previous sentence, One Source retains the right to modify any part of the Terms and Conditions prior to the beginning of any Standard Renewal Term or Automatic Renewal term, provided that Customer has been given written notice of such modification at least forty (40) days prior to the commencement of such Standard Renewal Term or Automatic Renewal Term. In the event Customer objects to any revisions, modifications, or changes to these Terms and Conditions, Customer shall have the right to terminate the Agreement, without penalty or liability, by giving Company written notice of such election at least thirty (30) days prior to the end of the then current Initial Term, Standard Renewal Term, or Automatic Renewal Term, as applicable.
o. Governing Law: Notwithstanding any principles of conflicts of laws, the laws of the State of North Carolina and applicable United States federal laws shall govern and control the performance, enforcement, and interpretation of this Agreement.
p. Venue and Jurisdiction: Customer agrees that the federal and state courts located in the County of Pitt in the State of North Carolina shall have exclusive jurisdiction and venue over the performance, enforcement, and interpretation of the Agreement and these terms and Conditions, and any claims, suits, or other disputes initiated or pursued by a party relating to or arising from the Agreement or these Terms and Conditions. Customer agrees to submit to, and hereby submits to, the personal jurisdiction of the federal and state courts located in the County of Pitt in the State of North Carolina in connection with the matters stated in this Section (p).
q. Force Majeure: If either party hereto is delayed or hindered in or prevented for reasons other than its negligence or willful misconduct from the performance of any act, or compliance with a covenant or obligation, required under the Agreement or these terms and Conditions, by reason of Act of God, fire, storm, strike, lock-out, labor trouble, unexpected inability to procure material, applicable laws (except those in effect prior to the date of the Agreement), riot, insurrection, war or any other reason of a like nature which is beyond the reasonable control of the party delayed in performing the acts or required to comply with a covenant or obligation required hereunder (“Force Majeure condition”), then performance thereof or compliance therewith shall be extended for a reasonable period, but not longer than necessary to enable the delayed party to overcome such Force Majeure condition. Each party agrees to cooperate with the other to advise the other of any Force Majeure condition and to use its best efforts to mitigate the effects of such condition upon the other party. This Section (q) shall not apply to any obligations under the Agreement or these Terms and Conditions (i) to pay money owed or (ii) regarding confidentiality or proprietary rights.
r. Severability: If any of the terms, covenants, conditions, or agreements of the Agreement or these Terms and Conditions for any reason shall be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other terms, covenants, conditions, and agreements of the Agreement or these Terms and Conditions, and any terms, covenants, conditions, and agreements hereof thereafter shall be construed as if such invalid, illegal, or unenforceable terms, covenants, conditions, or agreements never were contained in the Agreement or these Terms and Conditions.
s. Limitation of Liability: Customer and One Source hereby mutually agree that the services provided pursuant to the Agreement involve risks of liability which cannot be adequately compensated for by the payments Customer will make under the Agreement, and without this limitation of liability, One Source would not be willing to enter into the Agreement. Therefore, notwithstanding any other provision to the contrary in the Agreement or these terms and Conditions and to the fullest extent permitted by law, in no event shall the total cumulative aggregate liability of One Source and its officers, directors, managers, members, employees, agents and representatives to Customer resulting from, arising out of or in connection with the performance or nonperformance of any or all services or other obligations under the Agreement, exceed the fees paid by Customer to One Source for its services with respect to the Agreement within the one (1) year period ending on the date of Customer's first notice to One Source of Customer's claim for damages with respect to the Agreement, regardless of the legal theory under which such liability is imposed.
t. Waiver of Consequential Damages: Notwithstanding any other provision to the contrary in the Agreement or these terms and Conditions, and to the fullest extent permitted by law, One Source shall not be liable, whether based on contract, tort, negligence, strict liability, warranty, indemnity, error and omission or any other cause whatsoever, for any consequential, special, incidental, indirect, punitive or exemplary damages, or damages arising from or in connection with loss of use, loss of revenue or profit (actual or anticipated), loss by reason of shutdown or non-operation, cost of capital, loss by reason of failure to terminate communications services in a timely manner (whether or not One Source is responsible for such termination), or customer claims, and Customer hereby releases One Source from any such liability.
u. Indemnification: Customer hereby agrees to defend, indemnify and hold harmless One Source, its officers, directors, managers, members, employees, agents, and representatives, from and against any and all third party claims arising out of or based upon the services provided with respect to the Agreement.
v. Non-hire/Non-solicitation: Customer acknowledges that One Source is involved in a highly strategic and competitive business. Customer further acknowledges that Customer would gain substantial benefit and that One Source would be deprived of such benefit, if Customer were to directly hire any personnel employed by One Source. Therefore, except as otherwise provided by law, Customer shall not, without the prior written consent of One Source, solicit the employment of or hire any One Source personnel during the Initial Term, or any Standard Renewal Term(s) or Automatic Renewal Term(s), of the Agreement and for a period of one (1) year following termination of the Agreement. Customer agrees that One Source's damages resulting from breach by Customer of this Section would be impracticable to determine and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event Customer violates this provision, Customer shall immediately pay One Source an amount equal to sixty percent (60%) of the relevant employee’s total annual compensation from One Source for the year ending on the date such employee terminates his or her employment with One Source, as liquidated damages, and One Source shall have the option to terminate this Agreement without further notice or liability to Customer. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs Service Provider would incur to identify, recruit, hire and train suitable replacements for such personnel.
w. Cessation of Authority: Upon cancellation or termination of the Agreement for any reason, any authority granted to One Source to act as its authorized agent and communications representative shall cease.
x. Survival of Terms: The provisions of the Agreement and these Terms and Conditions which by their nature are intended to survive the termination, cancellation, completion, or expiration of the Agreement, including, but not limited to, indemnities and any expressed limitations of or releases from liability, shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion, or expiration.
y. Warranty: One Source provides no warranty with respect to the services provided under the Agreement, except that One Source’s sole liability to Customer for any non-conforming services shall be to re-perform the non-conforming services, written notice of which must be promptly given by Customer to One Source. The warranty set forth in this Section is exclusive, and in lieu of any and all other warranties relating to the services, whether statutory, express or implied, and One Source disclaims any such other warranties, including but not limited to any and all warranties of merchantability and/or fitness for a particular purpose and any and all warranties arising from course of dealing and/or usage of trade. Any other statements of fact or descriptions expressed in the Agreement shall not be deemed to constitute a warranty of the services or any part thereof. One Source’s re-performance of non-conforming services shall constitute complete fulfillment of, and Customer’s exclusive remedy for, all the liabilities or responsibilities of One Source to Customer for non-conforming services, whether the claims of Customer are based on delay, contract, tort, negligence, strict liability, warranty, indemnity, error and omission or any other cause whatsoever.
z. Confidentiality: “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (i) identified as confidential at the time of disclosure by the disclosing party (“Discloser”); or (ii) disclosed under circumstances that would indicate to a reasonable person that the information should be treated as confidential by the party receiving such information (“Recipient”). Each party agrees that it shall: (i) take reasonable measures to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own confidential information of a like nature; (ii) limit disclosure to those persons within Recipient’s organization with a need to know and who have previously agreed in writing, prior to receipt of Confidential Information either as a condition of their employment or in order to obtain the Confidential Information, to obligations similar to the provisions hereof; and (iii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and/or which are provided to the party hereunder. Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of this Agreement. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information. The parties agree that the foregoing shall not apply to any information that Recipient can evidence: (i) is or becomes publicly known and made generally available through no improper action or inaction of Recipient; (ii) was already in its possession or known by it prior to disclosure by Discloser to Recipient; (iii) is independently developed by Recipient without use of or reference to any Confidential Information; or (iv) was rightfully disclosed to it by, or obtained from, a third party. Recipient may make disclosures required by law or court order provided that Recipient: (a) uses diligent efforts to limit disclosure and to obtain, if possible, confidential treatment or a protective order; (b) has given prompt advance notice to Discloser of such required disclosure; and (c) has allowed Discloser to participate in the proceedings. Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof. Within thirty (30) days after the termination of this Agreement, or after any request for return of Confidential Information, each party will return to the other party or destroy all of such other party’s Confidential Information, at such other party’s discretion, and, upon request, provide such other party with an officer’s certificate attesting to such return and/or destruction, as appropriate. Notwithstanding the foregoing, each party may retain additional copies of, or computer records or files containing, the Confidential Information of the other party that have been created by that party’s electronic archiving and back-up procedures, to the extent created and retained in a manner consistent with the Receiving Party's standard procedures.
aa. Privacy: If One Source receives personal data from Customer, to the extent required by applicable data protection laws, One Source agrees that it will: (i) maintain such personal data controlled by Customer when authorized by the Customer and in compliance with this Agreement and will not use or process the personal data for purposes other than those permitted by the Customer; and (ii) adopt and maintain commercially reasonable security measures in maintaining Customer’s personal data. In the event of an incident of unauthorized access to and acquisition of unencrypted and unredacted records or data containing personal information maintained by One Source and belonging to or controlled by Customer where illegal use of the personal information has occurred or is reasonably likely to occur or that creates a material risk of harm to an individual (a "Security Breach"), One Source's sole responsibility shall be to promptly notify Customer of such Security Breach when One Source is made aware of such Security Breach. One Source shall not be responsible, and Customer hereby waives any all claims against One Source, whether based on contract, tort, negligence, strict liability, warranty, indemnity, error and omission or any other cause whatsoever, for losses, damages or costs arising out of any such data Security Breach of Customer's data.
bb. HIPAA, HITECH, and Business Associate Agreement: Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, known as "the Administrative Simplification provisions," direct the Department of Health and Human Services to develop standards to protect the security, confidentiality, and integrity of health information. Pursuant to the Administrative Simplification provisions, the Secretary of Health and Human Services has issued regulations modifying 45 CFR Parts 160 and 164 (the "HIPAA Security and Privacy Rule"). The Health Information Technology for Economic and Clinical Health Act ("HITECH Act"), Title XIII of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5 ("ARRA"), modified the HIPAA Security and Privacy Rule (hereinafter, all references to the "HIPAA Security and Privacy Rule" are deemed to include all amendments thereto contained in the HITECH Act and any applicable regulations). If in the course of providing the services under this Agreement, One Source is expected to receive, maintain, transmit or otherwise have access to Protected Health Information and/or Electronic Protected Health Information of Customer, Customer agrees that it will immediately notify One Source of such occurrence and enter into a separate Business Associate Agreement with One Source which is compliant with the HIPAA Security and Privacy Rule. cc. Third-Party Software and Services: In the course of providing the services under this Agreement, it is possible that One Source may use or contract for the benefit of Customer certain third-party software programs and services (such as "FireEye") which will be subject to separate agreements and/or terms and conditions of the vendors of such software programs and services. Customer hereby expressly authorizes One Source to share Customer data as necessary with One Source's agents, vendors, or service providers who perform functions on One Source's behalf for the benefit of Customer. By receiving the use of such third-party software programs and services, Customer shall be subject to all agreements by which such software programs and/or services were procured and all terms and conditions of their use. Further, Customer agrees that One Source shall not be responsible for the quality of such third-party software or services, and Customer hereby waives any and all claims which Customer may have against One Source with respect to such third-party software or services, and shall be limited to claims against the vendors of such third-party software or services, subject to the agreements by which such software programs and/or services were procured and all terms and conditions of their use. Except for the express warranties set forth herein, all products, subscriptions, materials, deliverables and services provided by such third-party vendors or One Source are provided on an “as is” basis without any warranty whatsoever. One Source and its vendors expressly disclaim, to the maximum extent permissible under applicable law, all warranties, express, implied and statutory, including without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, noninfringement, or arising from course of performance, dealing, usage or trade. One Source and its vendors also make no warranty regarding noninterruption of use or freedom from bugs, and makes no warranty that products, materials, deliverables, services or subscriptions will be error-free.