Last Updated: 01/29/24
This Master Services Agreement (“Agreement”) is entered into by and between Elder Technologies Inc. DBA Sage, a c-corporation, located at 33 W 17th Street, Floor 2, New York, NY 10011, (“Sage”), and the party that executed the Quotation and Statement of Work (“Partner”). Sage and Partner may be referred to individually as a “Party” or collectively as the “Parties.”
WHEREAS Sage has developed proprietary care monitoring system (including all data, devices, databases, cloud services and other systems associated therewith, the “System”) that can assist Partner in managing and responding to resident care needs as set forth in the applicable Quotation and Statement of Work (the “Service”);
WHEREAS Partner is a provider of post-acute or senior living services that wishes to implement Sage’s System and Services;
NOW THEREFORE, in consideration of mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.1 “Intellectual Property” means any and all common law or statutory rights anywhere in the world arising under or associated with: (i) patents, patent applications (including all divisions, continuations, continuations-in-part, reissues and reexaminations, and any extensions and counterparts of patents), statutory invention registrations, registered designs, and similar or equivalent rights in inventions; (ii) trademarks, service marks, trade dress, trade names, logos, and other designations or indicia of origin, and all registrations and applications relating to the foregoing; (iii) domain names, uniform resource locators, Internet Protocol addresses, social media handles, and other names, identifiers, and locators associated with Internet addresses, sites, and services; (iv) registered and unregistered copyrights and any other equivalent rights in works of authorship (whether or not registerable, including rights in software as a work of authorship) and any other related rights of authors, all registrations and applications to register the same, and all renewals, extensions, reversions and restorations thereof; (v) trade secrets and industrial secret rights, and rights in know-how, data and confidential or proprietary business or technical information, including formulations, formulae, technical, research, clinical and other data, in each case, that derives independent economic value, whether actual or potential, from not being known to other persons; and (vi) other similar or equivalent intellectual property or proprietary rights anywhere in the world.
2.1 Service. Sage shall provide the Service described in the applicable Quotation and Statement of Work (“SOW”).
2.2 Software and Hardware Technology. Sage will provide: (i) web based software application for all staff members and administrators at sites; (ii) analytics software for administrators and executives; and (iii) full functioning press hardware units that allow residents to press a button to request assistance.
2.3 Implementation and Training Services. Sage shall provide the Service described in the applicable Quotation and Statement of Work (“SOW”).
3.1 Cooperation with Sage. Partner shall not hinder or prevent Sage from performing its duties hereunder and shall execute or obtain all necessary documents and consents to permit Sage to provide the Service.
3.2 Medical Authority. Partner shall have sole authority, responsibility, supervision and control over the provision of all medical, nursing, and any other professional healthcare services provided hereunder.
3.3 Disclosure of Patient Information. Partner shall allow the System to access and process patient information as necessary for Sage to perform the Service.
3.4 Obtain Consent. Partner shall obtain and maintain any consents or authorizations necessary for Sage to provide the Services as contemplated in this Agreement.
3.5 Updates. Partner is solely responsible for keeping the System updated with accurate and current information regarding patients. Sage disclaims responsibility for any liability arising from or related to Partner’s failure to update the System, including any clinical procedures performed or outcomes effected.
4.1 Computer and Administrative Systems. Partner acknowledges and agrees that the System must first be installed, configured, and integrated with Partner’s existing information systems, as necessary, before it can be used in connection with the Service. Functionality of the System requires, as indicated by Sage in the applicable SOW, that certain computer systems, networks and/or devices require Internet access of a certain bandwidth and it is the sole responsibility of Partner to procure and maintain Internet access. Sage may install, configure and implement an alternative Internet-access solution if the Parties determine current bandwidth is not capable of supporting Sage’s Services. Sage has the right to integrate the System into Partner’s existing care solutions to perform the Service.
4.2 License. Sage hereby grants Partner during the term of each SOW a non-assignable, non-transferable, non-sublicensable, non-exclusive, limited, revocable license to access, use, and operate the Service. This license is for the sole purpose of enabling Partner to use the Service as provided by Sage in the manner permitted under this Agreement.
4.3 Intellectual Property. Except as provided herein, Partner acknowledges: (i) all right, title and interest in and to the System, including without limitation all rights of reproduction, modification, distribution and display, and all Intellectual Property, and other proprietary rights and interests are exclusive to Sage; (ii) the Service uses and/or embodies Sage Intellectual Property and that Sage holds sole title to and ownership of such Sage Intellectual Property; and (iii) nothing herein shall be construed as transferring any Sage Intellectual Property rights to partner. Notwithstanding any provision to the contrary set forth herein, nothing in this Agreement shall be construed to, and Partner shall take no steps that would, impair, qualify, diminish, limit, transfer, license, assign or otherwise modify, in whole or in part, Sage’s rights in the Sage Intellectual Property.
4.4 Restrictions on Use. Partner shall not, directly or indirectly: (a) sell, resell, lease, assign, transfer, or distribute the System in any way; (b) alter, modify, translate, or create derivative works based on the System; (c) disassemble, decompile, or reverse engineer the System or any aspect of the System, otherwise attempt to derive or construct source code or other trade secrets from the System; or (d) permit or assist any third-party to do any of the foregoing.
5.1 Confidential Information. Neither Party may disclose: (a) any proprietary, trade secret, or other confidential information of the other Party; or (b) proprietary or confidential information of third parties that have disclosed such information to a Party hereto in the course business, including, without limitation, third-party systems, source and object code, data models, and related system manuals and documentation ((a) and (b) collectively, “Confidential Information”) without prior express written authorization and shall not use Confidential Information in any way to the other Party’s detriment. Each Party shall keep Confidential Information strictly confidential and ensure that its employees, contractors, affiliates, and advisors with access to Confidential Information comply with these non disclosure obligations. Notwithstanding the foregoing, each Party may disclose Confidential Information to employees, agents, contractors, and professional who have a need to know such Confidential Information in order to fulfill obligations under this Agreement and who are notified of the confidentiality provisions hereof and have agreed in writing or are otherwise bound to keep it confidential in accordance with this Section 5. The receiving Party shall ensure that the disclosing party’s Confidential Information is used only to exercise rights and fulfill obligations under this Agreement, and is kept confidential. Confidential Information does not include information which (i) is known to the receiving party at the time of disclosure to the receiving party by the disclosing party as evidenced by written records of the receiving party, (ii) has become publicly known and made generally available through no wrongful act or failure to act by the receiving party, (iii) has been rightfully received by the receiving party from a third party who is authorized to make such disclosure, or (iv) has been independently developed by the receiving party without the use of the Confidential Information.
5.2 Return of Materials. Upon the termination of this Agreement, or upon the disclosing party’s earlier request, the receiving party shall delete Confidential Information that the receiving party may have in the receiving party’s possession or control.
5.3 Protected Health Information. Any and all disclosure of protected health information (“PHI”) shall be made in accordance with all applicable state and federal law, including HIPAA and the HITECH Act and any and all implemented regulations including but not limited to HIPAA’s Omnibus Rule. Each Party shall fully comply with the terms and conditions of the executed Business Associate Agreement (“BAA”) between the Parties.
5.4 Data Security. Sage represents and warrants that it has implemented, and shall maintain throughout the Term, administrative, physical, and technical safeguards in an effort to protect the confidentiality, integrity and availability of Partner’s Confidential Information, in accordance with these terms and conditions.
5.5 Requested and Required Disclosures. If a Party is legally compelled by a court or other government authority to disclose the Confidential Information of the other Party, the receiving Party, where permitted by law, shall (a) provide the disclosing Party with prompt written notice as soon as reasonably possible; (b) unless legally prohibited, provide a copy of the disclosure request relevant to the disclosing Party’s Confidential Information, and if legally prohibited, provide a description of the Confidential Information requested; (c) reasonably cooperate with the disclosing Party’s efforts to challenge the disclosure; (d) use all reasonable efforts to obtain, to the greatest extent practicable, an order or other reliable assurance that confidential treatment shall be accorded to such Confidential Information if the Party is ultimately compelled to disclose; and (e) furnish only Confidential Information a receiving Party is legally compelled to disclose according to the advice of its legal counsel.
5.6 Survival of Obligations. Each Party’s obligations under this Section 5 shall survive any termination or expiration of this Agreement for the greater of three (3) years or for such period as a Party’s Confidential Information is maintained.
5.7 Data Ownership. The Parties recognize that Sage must collect data from the Sage hardware and software (“Underlying Data”) to provide the Services. The Parties agree such Underlying Data is critical to the functioning and improvement of the Sage Services and Sage shall be permitted to maintain and use a de-identified copy of the underlying data for purposes of improving the System and Services. Sage will not commercialize nor share de-identified data with third parties, other than to improve the System of Services.
6.1 Authorization and Absence of Violations. Each Party represents and warrants that it has full power and authority to enter into, fulfill its obligations under, duly execute and deliver this Agreement; and that the Agreement (a) is a legal, valid, and binding obligation, (b) does not conflict with or constitute a default by either Party under any agreement or instrument to which it is subject, or (c) to either Party’s knowledge as of the Effective Date, violate any applicable statute, rule, regulation, order, judgment, injunction, award, or decree.
6.2 Compliance with Applicable Law. Each Party represents and warrants that it is in compliance with and shall be in compliance with all applicable federal, state, and local laws, statutes, ordinances, rules and regulations, including, as applicable, the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (collectively, “HIPAA”) (collectively, the “Law”). Both Parties may, upon notice to the other, alter, modify, or suspend the System or any use or functionality thereof or the provision of the Service if it is reasonably determined that such action may be necessary to comply with any applicable Law.
6.3 Medical Advice Disclaimer. Sage does not provide any services, to include the Service, that must be undertaken by a licensed medical or healthcare provider. Any medical- or health-related information provided to patients in connection with the Service is intended to be general in nature and should not be used as a substitute for professional advice or a visit with a health-care professional.
6.4 No Federal Exclusion. That Parties warrant that none of the Parties nor any of their owners, officers, directors, employees, or principals (collectively “Principals”), is an “Ineligible Person”. An “Ineligible Person” is an individual or entity who: (a) is currently excluded, disbarred, suspended, or otherwise ineligible to participate in federal or state health care programs or in federal or state procurement or nonprocurement programs. This includes persons who are on the List of Excluded Individuals or Entities of the Inspector General, List of Parties excluded from Federal Programs by the General Services Administration or the Medicaid Sanction List; or (b) Has been convicted of a criminal offense related to the provision of health care items or services within the rules and regulations of 42 USC §1320a-7(a), but has not yet been excluded, debarred, suspended, or otherwise declared ineligible. The Parties agree to report immediately to Sage if either the Party or any of its Principals becomes an “Ineligible Person” during the term of this Agreement
6.5 Warranty Disclaimer. Sage makes no representations or warranties that the Services will be uninterrupted, error-free, or will prevent falls or injuries in Partner’s patients. Sage is not responsible for any injury or harm that results from inaccurate or incomplete data entered into its applications by Partner, its staff, administrators, or any other individual.
7.1 Term. The term of this Agreement shall commence on the contract execution date (“Effective Date”) and shall continue for a period of one (1) year from the Effective Date. The Agreement shall automatically renew for successive one-year periods unless terminated as set forth herein (such period the “Term”). Initial installation period is 45 days from the agreed-upon launch date (“Go-Live").
7.2 Termination Without Cause. Partner may terminate this Agreement upon sixty (60) days prior written notice to Sage.
7.3 Immediate Termination. This Agreement may be terminated immediately by a Party in the event the other Party commits a material breach of this Agreement that is uncured for ninety (90) days following written notice from the terminating Party.
7.4 Effect of Termination of Expiration. Upon the termination or expiration of this Agreement and/or any individual SOW, Partner shall pay any unpaid fees covering the remainder of the SOW Term on each applicable SOW. In no event shall any termination or expiration relieve the Partner of the obligation to pay any fees payable to Sage for the period prior to the Effective Date of termination or expiration. Upon termination or expiration of this Agreement, all rights and licenses granted to Partner to use the Service shall cease and terminate immediately.
8.1 Fees. Please see proposal for pricing information.
8.2 Additional Fees. Any additional features beyond those listed in the SOW will incur an additional fee that will be set by Sage.
8.3 Holdover Charges. If Partner exceeds the maximum data usage amount as set forth in the Quotation and Statement of Work, Partner agrees to pay any holdover charges. Such holdover charges will be priced at a premium. Holdover charges will be billed to Partner if exceed more than 1 hour per calendar month.
8.4 Invoices must be paid by ACH. The fees will be auto-charged via ACH monthly as of the last business day of each month. If Partner does not pay by ACH and chooses to pay by another method, a 5% surcharge will be applied to the total amount due on the invoice at the time of payment. If Partner does not pay by ACH, Partner will have 30 calendar days from the date the invoice was issued to pay the fees.
8.5 Common Areas. A maximum of 20 common areas will be included in the fees covered by Sage. Partner must pay for any installations in common areas beyond the 20 common areas. Installation for any common areas subject to this provision with be agreed upon by the parties.
8.6 Phones. The maximum number of phones for which Sage will cover the cost is the maximum number of care staff on shift plus 1 additional phone (“Covered Phones”). Associated data fees will be included in the software fee for the Covered Phones. For additional phones, Partner must pay an additional $300 per phone plus associated data charges for each phone.
8.7 Reclaiming Devices. Sage will reclaim the devices if Partner decides not to continue after the initial 45-day period for the first set of installed communities (“Trial Period”) as outlined in the supporting SOW. After the Trial Period ends, Partner has option to discontinue using the Services, but if Partner continues to use the Services after the Trial Period, Partner will owe the Fees for the trial period and any period thereafter pursuant to the terms of the SOW.
9.1 By Partner. Partner shall indemnify, defend, and hold harmless Sage and its officers, directors, trustees, shareholders, members, managers, employees, and agents from and against any and all liabilities, losses, damages, causes of action, or expenses (including, without limitation, reasonable attorneys’ fees and legal costs) (collectively, “Expenses”) to the extent arising out of or related to this Agreement or the Service performed hereunder, which are in any manner directly or indirectly caused, occasioned, contributed to, or claimed to be due, in whole or in part, to any actual or alleged: (a) injury, including falls, sustained by a patient in the care, custody or facility of partner or its affiliates, employees or contractors of Partner, (b) Partner’s performance of medical or other healthcare services; (c) breach of this Agreement by Partner or its affiliates; (d) intellectual property infringement arising from (i) the combination, operation, or use of the System with products, services, information, materials technologies or business methods or processes not authorized by Sage; (ii) use of the System to analyze and/or audit any third-party system, and (iii) Partner’s use of the System not substantially in accordance with specifications from Sage; or (e) grossly negligent, wrongful, or willful acts or omissions of partner and its officers, directors, trustees, shareholders, members, managers, employees, and agents; provided that Partner shall not have any obligation to indemnify for liabilities, losses, damages, causes of action, or expenses to the extent liabilities are caused by Sage’s breach of this Agreement or Sage’s wrongful or willful acts or omissions.
9.2 By Sage. Sage shall indemnify, defend, and hold harmless Partner and its officers, directors, trustees, shareholders, members, managers, employees, and agents from and against any Expenses to the extent arising out of or related to this Agreement or the Service performed hereunder, which are in any manner directly or indirectly caused, occasioned, contributed to, or claimed to be due, in whole or in part, to any actual or alleged: (a) Sage’s breach of this Agreement or (b) the wrongful or willful acts or omissions of sage and its officers, directors, and employees. The obligations set forth in this Section, shall constitute sage’s entire liability.
9.3 Limitations on Liability. IN THIS LIMITATIONS OF LIABILITY SECTION, “LIABILITY” MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT, OR OTHERWISE.TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES WHICH MAY BE PROVIDED BY SAGE. IN NO EVENT SHALL SAGE’S LIABILITY HEREUNDER OR IN CONNECTION HEREWITH, EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT UNDER THE SPECIFIC QUOTATION AND STATEMENT OF WORK IN CONNECTION WITH WHICH THE LIABILITY IS CLAIMED TO HAVE ARISEN. ALL CLAIMS, OTHER THAN CLAIMS FOR PAYMENT OF AMOUNTS OWED OR BREACHES OF CONFIDENTIALITY TERMS OR THE TERMS LICENSING OR OTHERWISE PROTECTING SAGE’S INTELLECTUAL PROPERTY, SHALL BE MADE WITHIN SIX (6) MONTHS FOLLOWING THE DATE ON WHICH THE CLAIMING PARTY HAD REASONABLE NOTICE OF THE CLAIM.
10.1 Inconsistent Terms. To the extent that any term in a SOW is inconsistent with a term in this Agreement, then the term in the SOW shall govern with respect to the Service covered by that SOW.
10.2 Severability If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future Law in effect during the Term of this Agreement, the remainder of this Agreement shall nevertheless continue in full force and effect to a reasonable extent.
10.3 Governing Law. This Agreement shall be governed by the substantive laws of the State of New York without regard to any conflicts of law provisions.
10.4 Assignment; Delegation. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and authorized successors and assigns. Neither Party may assign any of its rights or delegate any of its duties hereunder, except in the event of merger, acquisition, or sale of all or substantially all of the Party’s assets, without the prior written consent of the other Party, which shall not be unreasonably withheld.
10.5 Force Majeure. Except for payment obligations, neither Party will be liable to the other Party for a failure to perform its obligations under this Agreement as a result of actions beyond its reasonable control that cannot be mitigated through the exercise of due care.
10.6 Notice. Notice permitted or required by this Agreement must be provided in writing and delivered via email or certified mail to the designated account representative or another senior management member of the receiving Party as set forth in the Quotation and Statement of Work.
10.7 Entire Agreement. This Agreement and any executed SOW constitute the entire Agreement between the Parties with respect to the Service and supersedes any prior or contemporaneous agreements, promises, or understandings, whether written or oral, relating to the matters covered hereunder. Any modification of the terms and conditions of this Agreement or any executed SOW must be in writing and signed by an authorized representative for each party. Failure of either Party to insist in any instance upon strict performance by the other Party of any term or condition of this Agreement or executed SOW shall not be construed to be a permanent waiver of such or any other term or condition of this Agreement or such SOW. If any provision of this Agreement is declared invalid, in whole or in part, by an authorized tribunal, then for purposes of such proceeding, such provision (or part thereof) shall be amended so as to become enforceable consistent with its original intent, or if such amendment is not possible, then it shall be stricken and deemed omitted; in either case, the remaining provisions of this Agreement shall remain in full force and effect. Headings used in the Agreement are for reference purposes only and shall not be deemed a part of the Agreement.
10.8 Counterparts. This Agreement may be executed in any number of counterparts, which may be delivered by facsimile or other electronic transmission, in PDF format, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
10.9 Policies, Procedures, and Credentialing. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Although no Sage employee or agent shall be deemed an employee of partner, sage shall inform all sage employees and agents that may enter partner’s premises or have remote access to partner’s information technology system(s) that they must comply with partner’s policies, rules, and regulations, including, but not limited to, policies regarding patient confidentiality and the provisions of HIPAA.
By signing this Agreement, Partner grants Sage the irrevocable right and permission to use photographs, quotes, and testimonials obtained during the course of our business relationship for the purposes of marketing, advertising, and promoting Sage’s products or services.
Partner agrees that Sage may use these photographs, quotes, and testimonials in various media formats, including but not limited to print materials, website content, social media platforms, and other promotional materials.
Partner acknowledges that Sage may edit, modify, or enhance the photographs and quotes as deemed necessary for promotional purposes, without seeking further consent from the Partner.
Partner understands and agrees that Sage shall have the right to use the Client's name, likeness, and any accompanying quotes or testimonials in connection with the photographs, solely for the purposes stated above.
Partner further acknowledges that they will not receive any compensation, financial or otherwise, for the use of these photographs, quotes, and testimonials.
Partner represents that they have the legal authority to grant these rights and permissions and that the use of the photographs, quotes, and testimonials will not infringe upon the rights of any third party.
This clause shall survive the termination or expiration of this Agreement.
Signed by: Raj Mehra, CEO
