Terms & Conditions

STRATX IT SOLUTIONS – TERMS AND CONDITIONS & BUSINESS ASSOCIATE AGREEMENT

Subject to the terms and conditions contained herein, StratX IT Solutions, LLC (hereinafter “StratX”), having an address at 10 New King Street, Suite 215, White Plains, New York, 10604, agrees to sell to its Customer and its Customer (hereinafter the “Customer”), agrees to purchase, certain hardware and installation services set forth in Invoice (hereinafter the “Hardware”). All sales are made in accordance with and subject to the following terms and conditions:

TERMS AND CONDITIONS

1. DEPOSIT AND PAYMENT: Upon execution of this Agreement, Customer shall pay to StratX, as a deposit, good and sufficient funds in United States dollars in an amount equal to fifty percent (50%) (hereinafter the “Deposit”) of the Hardware purchase price (hereinafter “Hardware Purchase Price”). StratX shall not be obligated to deliver or install any Hardware unless it has received the Deposit. The Hardware Purchase Price, including the Deposit, shall be paid to StratX IT Solutions, LLC, 10 New King Street Suite 215 White Plains, NY, 10604 or at such other place that StratX may from time to time designate.

Upon receipt of the Deposit, StratX shall make arrangements for delivery of the Hardware, and there shall be no returns and no cancellation of the Agreement by the Customer. Payment of the remaining fifty percent (50%) of the Hardware Purchase Price shall be due upon the earlier of StratX’s receipt of the equipment or Customer’s initial receipt of the Hardware (hereinafter the “Due Date”) pursuant to an invoice provided by StratX to Customer. Hardware (including installation) may be delivered in multiple stages, and therefore any additional Hardware will only be delivered and installed upon receipt of the entire Hardware Purchase Price. Hardware shall be delivered to Customer at the location designated by the Customer. In the event that any portion of the Hardware Purchase Price is unpaid ten (10) days after the Due Date, the Customer shall pay interest at the rate of one and one-half percent (1 ½%) per month on all sums due on the Due Date.

Purchase Price Adjustments: In the event that StratX or the Customer change or adjust the Hardware to be delivered or installed under this Agreement for any reason, including, but not limited to, changes in specifications, quantities, shipping arrangements, or other conditions not foreseen at the time of executing this Agreement, StratX reserves the right to increase or adjust the Hardware Purchase Price at any time. All adjustments in the Hardware Purchase Price shall be made in writing to the Customer, and shall constitute a modification to the Hardware Purchase Price. These changes or adjustments shall not, however impact the payments for the Deposit and additional payments made pursuant to the delivery of the Hardware as noted above. As such, on the Due Date, the entire Hardware Purchase Price (which may be increased or adjusted) shall be paid in full.

The Hardware Purchase Price is exclusive of any excise, use or other taxes imposed by any federal, state, municipal, or other governmental authority, all of which taxes shall be paid by the Customer. In the event that the Customer claims any exemptions for taxes due or payable under this Agreement, then the Customer shall provide legal proof of such exemption prior to the delivery of any Hardware.

2. PRICE PROTECTION: The Hardware Purchase Price shall be guaranteed for a period of thirty (30) days after execution of this Agreement. Thereafter, all prices quoted or published by StratX are subject to change without notice.

3. DELIVERY AND INSTALLATION: The Customer accepts delivery of the Hardware upon the initial delivery of the Hardware. The Customer acknowledges that it has received, read, understands, and accepts any and all applicable Hardware warranties, Software End User Licenses, or any other terms and conditions related to the purchase and use of the Hardware.

4. TITLE AND RISK OF LOSS: Subject to Paragraph 5 hereunder, and to StratX’s right to stop delivery of the Hardware, title to and risk of loss for products shall pass to the Customer upon the initial delivery of the Hardware at the Customer’s location, whereupon, the Customer assumes all risk of loss or damage whether or not the Hardware has been installed.

5. SECURITY INTEREST: To secure the payment and performance by the Customer, the Customer hereby expressly grants to StratX a security interest in all products, goods, and services sold hereunder under the Uniform Commercial Code and any other applicable federal, state or local laws. The Customer acknowledges that this document or copies of this document may be filed as evidence of the security interest maintained by StratX. Customer further agrees to execute and deliver any documents needed to perfect, maintain, or otherwise evidence the security interest granted hereunder at any time thereafter.

6. WARRANTY: Subject to Paragraph 9, below, StratX is not the manufacturer or distributor of the Hardware, and offers no warranty of merchantability, or fitness for a particular purpose relative to the Hardware sold hereunder. Customer acknowledges that it is the Customer’s responsibility to obtain and maintain all applicable Warranties from the respective manufacturers or distributors of the Hardware. StratX shall take reasonable steps to ensure that the Customer is delivered appropriate documentation permitting the Customer to obtain such Warranties.The Customer understands and acknowledges that it may separately purchase a StratX Equipment and Software Service Agreement for all subsequent years in the form offered by StratX for an additional fee, and subject to the separate Terms and Conditions set forth in the StratX Equipment and Software Service Agreement.

THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, StratX DISCLAIMS ALL SUCH WARRANTIES.

7. SUITABILITY OF HARDWARE: Customer acknowledges that the Hardware installed hereunder may affect the suitability and operation of other hardware, data or software installed, operated or maintained by the Customer, and that it is the Customer’s sole responsibility to assure the compatibility of such existing systems with the Hardware. Customer acknowledges it has independently determined that the Hardware is compatible and suitable for its intended purpose, and that StratX has made no oral or written representation as to such suitability. Customer acknowledges that it has independently determined that the installation of the Hardware will not detrimentally affect any compatibility with software applications, data or existing hardware owned, installed or operated by the Customer. StratX shall not be responsible for the operation of any software licensed, owned, managed, or maintained by the Customer.

8. CUSTOMER’S OPERATIONAL RESPONSIBILITIES: Customer has sole responsibility for the use of the Hardware and any Software installed therein, including operating procedures, audit controls, accuracy and security of input and output data, data backup, restart and recovery routines, and other procedures necessary for Customer’s intended use of the Hardware. Customer will ensure that its personnel are educated and trained in the proper use and operation of Hardware and that such operation complies with applicable owner’s manuals or instructions. The Customer is solely responsible for any loss, damage or destruction of existing software or data caused by, or related to, the installation of the Hardware.

9. LIMITATION OF LIABILITY AND DAMAGES: In no event will StratX be liable for any special, indirect, incidental, punitive, or consequential damages, including, without limitation, lost profits, revenues, sales, insurance, savings, or any other damage relating to the Hardware (including installation), whether or not caused by or known to StratX. The Customer shall indemnify StratX and its members, directors, officers, employees, representatives and agents and defend and hold each of them harmless from and against all losses, damages, liabilities, claims, lawsuits, proceedings, costs and expenses, including without limitation, reasonable attorneys’ fees, in connection with all third party liability, lawsuits, investigations, claims or demands (collectively, the “Losses”) arising or occurring as a result of the Hardware. In the event that the Customer shall have any claims, including, but not limited to, claims for breach of contract, warranty, or strict liability under this Agreement against StratX, in contract, warranty, or tort, the sole extent of StratX’s liability shall be to reimburse the Customer for the Hardware Purchase Price.

10. NOTICE: Any claims that the delivery and installation of the Hardware did not conform to this Agreement shall be made in writing within ninety (90) days after Full Delivery of the Hardware. Any claims not made within ninety (90) days from Full Delivery are waived and released by the Customer.

11. DEFAULT: The Customer shall be in default under this Agreement if one or more of the following events shall occur: failure by the Customer to make any payment hereunder to StratX or to its assignees when due; breach by the Customer of any term, provision, or condition contained in this Agreement or in any other Agreement between the Customer and StratX; or if the Customer becomes bankrupt or insolvent during the term of this Agreement, or is unable to meet obligations as they become due (hereinafter “Default”). Upon Customer’s Default, StratX may terminate this Agreement upon five (5) days written notice thereof to the Customer. In such event, any Hardware in Customer’s possession shall be immediately returned to StratX. Termination shall not prejudice StratX’s rights to any amounts then due under the Agreement. Customer shall pay all costs of collection of any sums due hereunder, including reasonable attorneys’ fees. No delay or omission on the part of StratX in exercising any right hereunder shall operate as a waiver of such right, nor shall any delay, omission, or waiver on any one occasion be deemed to be a bar to, or waiver of the same or of any other right on any future occasion.

12. RESOLUTION: Any controversy or claim arising out of, or relating to this Agreement, or its breach up to five thousand ($5,000.00) dollars shall be settled in small claims court located in Westchester County. Any controversy or claim arising out of, or relating to this Agreement, or its breach in excess of five thousand ($5,000.00) dollars, shall be settled by arbitration in accordance with the then governing rules of the American Arbitration Association in Westchester County, New York. Unless otherwise agreed, the dispute shall be determined by one (1) arbitrator chosen by StratX. The decision of the arbitrator as to both liability and damages shall be final and binding upon StratX and Customer, subject to no right of appeal. The judgment so entered shall be enforceable in any court of competent jurisdiction. If StratX brings an arbitration against Customer in connection with the enforcement of this Agreement, Customer shall be responsible for all expenses, including but not limited to arbitration fees and attorneys’ fees.

13. ASSIGNMENT: The Customer shall not assign any of its rights pursuant to this Agreement without the written consent of StratX. StratX shall freely assign its rights under this Agreement without consent of the Customer.

14. SEVERABILITY: If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not, in any way, be affected or impaired thereby.

15. EXCLUSIVE AGREEMENT: This Agreement constitutes the complete and exclusive understanding of the parties, and all oral or written communications or prior agreements between the parties, are hereby merged and superseded by this Agreement, which may not be amended, changed, or modified without a fully executed writing signed by StratX and the Customer.

16. GOVERNING LAW and VENUE: Construction and enforcement of this Agreement shall be made under the laws of the State of New York. Venue of any disputed matter or claim shall be placed within the County of Westchester, State of New York.

Customer agrees that approval of this agreement also includes the approval of the below Business Associate Agreement, and replaces all terms and condition of any priori agreements in place at the time of purchase.

STRATX IT SOLUTIONS LLC BUSINESS ASSOCIATE AGREEMENT

This agreement (“Agreement”) is made and entered into today by and between you the Customer (“Covered Entity”) and StratX IT Solutions, LLC, (“StratX”), whose business address is 10 New King Street, White Plains, NY 10604.

WHEREAS, StratX is a professional computer and contract IT system provider who has contracted with the Covered Entity to install and maintain computer systems under separate software or hardware services agreements; and

WHEREAS, under Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104 191, (“HIPAA” as amended), direct the Department of Health and Human Services to develop standards to protect the security, confidentiality and integrity of health information; and

WHEREAS, the American Recovery and Reinvestment Act of 2009 (Pub. L. 111 5), pursuant to Title XIII of Division A and Title IV of Division B, called the “Health Information Technology for Economic and Clinical Health” (“HITECH”) Act, provides modifications to the HIPAA Security and Privacy Rule; and

WHEREAS, StratX and the Covered Entity hereby wish to enter into or have entered into an arrangement whereby StratX will provide certain computer system services to Covered Entity, with an agreement evidencing such arrangement as to any protected health information (“PHI”) that may be incidentally involved in the performance of the services provided by StratX,

NOW THEREFORE IT IS HEREIN AGREED, as follows:

1.0 Definitions.

1.1 Catch-all definition: The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

1.2 Specific definitions:

(a) Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean StratX.
(b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Covered Entity set forth above.
(c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

2.0 Obligations and Activities of STRATX.

2.1 StratX agrees to use commercially reasonable efforts to:

(a) Not use or disclose PHI other than as permitted or required by the Agreement or as required by law;
(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by the Agreement;
(c) Implement administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of the individual PHI, as required by law;
(d) Report to Covered Entity any use or disclosure of PHI not provided for by the Agreement of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware;
(e) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of StratX agree to the same restrictions, conditions, and requirements that apply to StratX with respect to such information;
(f) Make available PHI in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
(g) Make any amendment(s) to PHI in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;
(h) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
(i) To the extent StratX is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
(j) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

2.2 Permitted Uses and Disclosures by StratX. Except as otherwise limited by this Agreement, StratX shall be permitted to use and disclosure such PHI or other data as may, from time to time be necessary to perform the contracted for computer and electronic data services provided by StratX in the normal course of its responsibilities, including for the proper management and administration of StratX, respond to legal process or subpoena as required by law; or to provide Data Aggregation services to Covered Entity, as permitted by 45 C.F.R. 164.504(e)(2)(i)(B); to make uses and disclosures and requests for PHI consistent with Covered Entity’s minimum necessary policies and procedures; provided however that StratX may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity.

3.0 Term and Termination.

3.1 Term. The Term of this Agreement shall be effective as of the Effective Date of this Agreement, and shall terminate on the date Covered Entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.

3.2 Termination for Cause. StratX authorizes termination of this Agreement by Covered Entity, if Covered Entity determines StratX has violated a material term of the Agreement, and StratX has not cured the breach or ended the violation within the time specified by Covered Entity.

3.3. Obligations of StratX Upon Termination. Upon termination of this Agreement for any reason, STRATX shall return to Covered Entity or, if agreed to by Covered Entity, destroy all protected health information received from Covered Entity, or created, maintained, or received by STRATX on behalf of Covered Entity, that STRATX still maintains in any form. STRATX shall retain no copies of the protected health information. Upon termination of this Agreement for any reason, StratX, with respect to protected health information received from Covered Entity, or created, maintained, or received by StratX on behalf of Covered Entity, shall:

(a) Retain only that protected health information which is necessary for StratX to continue its proper management and administration or to carry out its legal responsibilities;

(b) Return to Covered Entity or, if agreed to by Covered Entity, destroy the remaining protected health information that StratX still maintains in any form;

(c) Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as STRATX retains the protected health information; (d) Not use or disclose the PHI retained by STRATX other than for the purposes for which such protected health information was retained and subject to the same conditions set out above, which applied prior to termination; and

(e) Return to Covered Entity or, if agreed to by Covered Entity, destroy the protected health information retained by STRATX when it is no longer needed by STRATX for its proper management and administration or to carry out its legal responsibilities.

3.4 Survival. The obligations of StratX under this Section shall survive the termination of this Agreement.

4.0 Indemnification. Covered Entity will indemnify, hold harmless and defend STRATX from and against any and all claims, losses, liabilities, costs and other expenses incurred as a result of, or arising directly or indirectly out of or in connection with:

(i) any misrepresentation, breach of warranty or non-fulfillment of any undertaking on the part of the Covered Entity; and

(ii) any claims, demands, awards, judgments, actions and proceedings made by any person or organization arising out of or in any way connected with the Covered Entity’s liability for unauthorized disclosure of PHI.

5.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one original Agreement. Facsimile signatures shall be accepted and enforceable in lieu of original signatures.