(a) AngelTrack LLC ("Supplier"), a Texas corporation, has developed and hosts a software product for managing all aspects of an Emergency Medical Services operation, and is in the business of making such products available, as an application service provider, for use by customers that access such products over the Internet.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, Supplier and the undersigned legal representative of the customer hereby agree as follows:
(a) "Affiliate" shall mean any entity which controls, is controlled by or is under common control with a Party, for so long as such control exists. For purposes of this definition, "control" means beneficial ownership of more than fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, the corresponding managing body).
(b) "Customer" shall mean a person or business that purchases the Product from Supplier in accordance with the terms of this Agreement for its own internal use only and not for distribution.
(c) "Documentation" shall mean Supplier's user manuals, other user documentation, and marketing documentation, provided by Supplier to Customer from time to time under this Agreement.
(d) "Server Instance" shall mean a computer connected to the internet with the Product installed on it, configured for use by a specific Customer, and monitored by Supplier.
(e) "License Fee" shall mean a sum of money adequate to purchase a Server License of a specific term of days, months, or years, as mutually agreed upon between Customer and Supplier.
(f) "Server License" shall mean a short computer code issued by Supplier for the purpose of activating, reactivating, or extending the active period of a Server Instance, usable only on a particular Server Instance, and accepted by that Server Instance when input into the Server Instance's user interface.
(g) "Product" shall mean the software functionality and services made available by Supplier as an application service provider through a browser interface over the Internet. For clarity, Product does not include any configuration, implementation, or similar professional services provided by third parties related to the services hosted by Supplier.
(h) "Sell," "Sale" and similar words shall mean to enter into an agreement with a Customer to provide the Product.
(i) "User Documentation" shall mean the Documentation which Supplier has determined may be distributed to Customers.
(j) "Customer Data" shall mean all data and all images accumulated within the Product during Customer's usage thereof, including patient medical and demographic data.
(k) "Cooldown Period" means the time period beginning on midnight of the day the last unconsumed Server License is consumed and ending when either a valid unconsumed Server License is installed onto the Server Instance or thirty (30) days elapses, whichever comes first. During the Cooldown Period, a Server Instance remains accessible subject to the limitations set forth in section 18.
(l) "Expired Server Instance" means a Server Instance that has no unconsumed Server License installed and is therefore in the Cooldown Period. An Expired Server Instance imposes certain limitations upon itself, as set forth in section 18.
(m) "Customer Portal" means the thus-named web site offered automatically by the Product via the internet for use by the Customer's customers.
(n) "Document Templates" means the built-in texts used by Product to construct the legal notices and disclaimers shown to Customer's employees and customers. The built-in texts can be modified at will to comply with company policy and with local regulations.
(o) "Certified Biller" means a person employed full-time in billing activities who is properly trained and accredited as either:
i) a Certified Ambulance Coder [CAC] by the National Academy of Ambulance Compliance [NAAC], or
ii) an equivalent accreditation issued by an EMS billing compliance organization whose area of oversight includes the EMS activities for which billing is to be conducted;
...and who has personally received the recommended Continuing Education training within the past year.
(p) "License Guidelines" means the thresholds and limits of employee count and call volume for each license level available in the Product. These thresholds and limits are published on Supplier's public-facing website and are subject to change at any time, for any reason, at Supplier's sole discretion, provided that thirty (30) days advance notice is given to any Customer who will be adversely affected by change.
(a) For purposes of this Agreement, whenever the context requires: the singular number will include the plural, and vice versa; the masculine gender will include the feminine and neuter genders; the feminine gender will include the masculine and neuter genders; and the neuter gender will include the masculine and feminine genders.
(b) Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including" and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to "Articles," "Schedules," "Sections" and "Exhibits" are intended to refer to Articles, Schedules, Sections and Exhibits to this Agreement.
(e) The headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the construction or interpretation of this Agreement.
(a) Activation. To activate Customer's access to and use of the Product, Customer must read and agree to these Product Use Terms, including all disclaimers and limitations of liability, and limitations on access to and use of the Product. The Product Use Terms shall govern all access to and use of the Product. All information provided by Customer to activate an account shall be accurate and complete.
(c) Changes to Product Use Terms. These Product Use Terms may be updated at any time by providing an updated copy of the Product Use Terms to Customer, which delivery may be by email or through the Product itself. Continued access to and use of the Product shall be subject to Customer's agreement to any such updated Product Use Terms. If Customer does not agree to the updated Product Use Terms, Customer shall notify Supplier and shall not access or use the Product further. For clarity, while updated Product Use Terms may be posted in the Product, any indication of agreement by the Customer to such Product Use Terms shall form a contract between Customer and Supplier.
(d) Change of License Size. Supplier shall have sole discretion in applying the License Guidelines in order to determine the product license required by Customer's employee headcount and call volume. In the event Supplier determines that a change of license level is necessary, any unconsumed licenses already purchased by Customer shall be immediately voided and applied pro rata towards the purchase of new licenses at the new license level. This pro rata license purchase shall follow either the price schedule that was in force at the time the unconsumed licenses were originally purchased by Customer, or the current price schedule, whichever is more favorable to Customer.
(a) All access to and use of the Product shall be solely for the Customer's own internal business operations and not for the benefit or business of any other party. Without limiting the foregoing, Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, link to, mirror, frame, provide a service bureau using, or otherwise commercially exploit or make available to any party (other than Customer's authorized employees) the Product or the output from the Product.
(b) An exception to (a) is granted for the good-faith use of the Customer Portal by Customer's customers.
(a) Customer shall not (and shall not allow any third party to) copy, modify, create derivative works of, reverse engineer, reverse assemble, disassemble or decompile the Product or any part thereof, or otherwise attempt to discover or obtain any source code or other code in human perceivable form.
(b) Customer (and all users under its account) shall use the Product solely in the manner described in the User Documentation, as the User Documentation is updated from time to time.
(c) Customer shall comply with all applicable local, state, federal, national, international and foreign laws, treaties, regulations, conventions, and standards of each applicable jurisdiction and community in connection with the use of the Product, including those related to privacy, electronic communications and anti-spam legislation. The Product shall not be accessed or used in a manner that is, or that aids or assists any purpose or activity that is, illegal; invades or infringes the privacy or other rights or expectations of any person; that may be considered offensive, abusive, inappropriate, threatening, harassing, libelous, slanderous, defamatory, intrusive, surreptitious, obscene or inconsistent with community standards; or that may otherwise damage Supplier's or Supplier's service providers' business, services, reputation, or good will. Supplier has the right to permanently destroy any Customer Data and any backups thereof that violates this section.
(d) Customer shall access and use the Product only through the internet browser interfaces that are expressly provided and described in the User Documentation.
(e) Customer shall not upload, store, post, reproduce, submit, distribute or transmit any information, software or other material or subject matter that is protected by copyright, trade secrets, or any other intellectual property or proprietary right (including rights of publicity and privacy) without first obtaining the authorization of the owner of such rights, including any rights , necessary for Supplier and its service providers to provide, and Customer to use, the Products with respect to such subject matter.
(f) Customer shall not indicate or imply that any communications or transmissions using the Product are endorsed by Supplier or Supplier's service providers.
(g) Customer shall not utilize Product for any purpose until Customer has reviewed and if necessary modified all Document Templates to ensure they comply with Customer's policies and with applicable laws and regulations.
(h) The office using AngelTrack's billing features, whether a division of the Customer's operation or a third-party billing agency retained by the Customer, shall have at least one Certified Biller on staff full time who maintains significant involvement in or oversight of the use of AngelTrack for billing purposes.
(i) If Product is used for 911 service or for any emergency dispatching, the workstations regularly used by dispatchers to access the Product shall be provisioned with all of the following:
1) Uninterruptible Power Supply (UPS) devices powering the computers, monitors, and network switches and hubs
2) Wired ethernet connections, not WiFi, to the internet gateway device
3) Redundant internet connections from different internet service providers, or using different topologies if only one broadband internet service provider is available, and protected by UPS devices
4) Spare extension cord sufficient to reach the operating area of one or more backup generator(s) capable of simultaneously powering all dispatchers' computers including their monitors, network switches, and internet connections, and with at least twelve hours' fuel on hand
Customer shall not utilize Product for 911 service or for any emergency
dispatching until Customer's Medical Director or equivalent supervisor has
reviewed and approved the contents of the Product's built-in Emergency Medical
Dispatch (EMD) card deck for conformity with local and state regulations.
k) Customer shall not utilize Product for BLS/EMT or higher patient care or telemedicine until Customer's Medical Director or equivalent supervisor has reviewed and approved the contents of the Product's built-in medical protocol document for conformity with local and state regulations, or has disabled the Product's built-in medical protocol document by inputting the internet URL of Customer's current medical protocol document.
In the event
Supplier creates, receives, maintains, or otherwise is exposed to personally
identifiable or aggregate patient or other medical information defined as
Protected Health Information ("PHI") in the Health Insurance
Portability and Accountability Act of 1996 or its relevant regulations ("HIPAA")
and otherwise meets the definition of Business Associate as defined in the
HIPAA Privacy Standards (45 CFR Parts 160 and 164), Supplier shall:
(a) Recognize that
HITECH (the Health Information Technology for Economic and Clinical Health Act
of 2009) and the regulations thereunder (including 45 C.F.R. Sections 164.308,
164.310, 164.312, and 164.316), apply to a business associate of a covered
entity in the same manner that such sections apply to the covered entity;
(b) Not use or further
disclose the PHI, except as permitted by law;
(c) Not use or
further disclose the PHI in a manner that had Customer done so, would violate
the requirements of HIPAA;
(d) Use appropriate
safeguards (including implementing administrative, physical, and technical
safeguards for electronic PHI) to protect the confidentiality, integrity, and
availability of and to prevent the use or disclosure of the PHI other than as
provided for by this Agreement;
(e) Comply with each
applicable requirements of 45 C.F.R. Part 162 if Supplier conducts Standard
Transactions for or on behalf of the Covered Entity;
promptly to Customer any security incident or other use or disclosure of PHI
not provided for by this Agreement of which Supplier becomes aware;
(g) Ensure that any
subcontractors or agents who receive or are exposed to PHI (whether in
electronic or other format) are explained the Supplier obligations under this
paragraph and agree to the same restrictions and conditions;
(h) Make available PHI in
accordance with the individual's rights as required under the HIPAA
for PHI disclosures for up to the past six (6) years as requested by Covered
Entity, which shall include: (i) dates of disclosure, (ii) names of the
entities or persons who received the PHI, (iii) a brief description of the PHI
disclosed, and (iv) a brief statement of the purpose and basis of such
(j) Make its
internal practices, books, and records that relate to the use and disclosure of
PHI available to the U.S. Secretary of Health and Human Services for purposes
of determining Customer's compliance with HIPAA; and
(k) Incorporate any amendments or corrections to PHI when notified by Customer.
Customer shall provide and obtain all equipment, software, and accounts, including communications infrastructure, necessary to establish a connection to the Internet, and will further obtain access to the Internet and pay any service fees associated with such access, if any; will agree to use software produced by other third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by Supplier. Unless notified otherwise by Supplier or its service provider, Customer agrees to use software that supports the Secure Socket Layer protocol or other protocols accepted by Supplier and to follow logon procedures for Product that support such protocols.
Customer hereby grants, and shall grant, to Supplier (and its service providers) the non-exclusive right and license to copy, record, transmit, maintain, store, display, view, print, adapt, and otherwise use all Customer Data, and to engage in such other activities, to the extent necessary to provide and operate the Product for the benefit of Customer (including disclosure and distribution of Customer Data as specified by Customer to Supplier's contractors and service providers). Without limiting the foregoing, Customer agrees that Supplier, and its contractors and service providers, are authorized to intercept and store communications and transmissions and Customer Data, and that changes to such communications and transmission may occur in order to conform and adapt the Customer Data to the technical requirements of connection networks or devices used in or by the Product. Supplier and its services providers do not provide or obtain, or purport to provide or obtain, any such rights.
Supplier and its service providers have the right, from time to time in their sole discretion, without incurring any liability to Customer (except for credits or refunds that Supplier may be required to pay as expressly set forth in these Product Use Terms) to modify the design of, specifications for, or operation of, or suspend or terminate the availability of, the Product. Without limiting the foregoing, Supplier and its service providers shall have no obligation to continue the availability of the Product. SUPPLIER AND ITS SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS A RESULT OF ANY SUCH MODIFICATION, SUSPENSION, OR TERMINATION.
SUPPLIER SHALL HAVE NO RESPONSIBILITY OR LIABILITY ARISING OUT OF OR RELATING TO ANY PRODUCTS OR SERVICES, OTHER THAN THE PRODUCT PROVIDED BY SUPPLIER AS AN APPLICATION SERVICE PROVIDER.
Customer understands that all communications, transmissions, and submissions to, through, and from the Product are transmitted through networks, equipment and facilities that are not owned or controlled by Supplier and its service providers and that such communications, transmissions, and submissions may be accessed or intercepted by unauthorized parties. Supplier intends to take such measures as it considers reasonably appropriate; for purposes of maintaining the security of only its own facilities used to provide the Product. Provided that Supplier takes such measures, SUPPLIER SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY COMMUNICATIONS, TRANSMISSIONS, OR SUBMISSIONS WHICH ARE ALTERED, INTERCEPTED, ACCESSED OR STORED WITHOUT AUTHORIZATION OR ANY OTHER BREACHES OF SECURITY. None of Supplier and its services providers shall be required to authenticate the identity of any user. Customer shall notify Supplier immediately of any unauthorized use of the Product; loss or theft of any user name or password; or any other security failure of which Customer is aware.
Product may become unavailable and inaccessible at any time without notice,
both for reasons controlled by Supplier and its services providers and for
reasons not controlled or determined by Supplier or its service providers. The
Product also has regular maintenance intervals during which time it may be
unavailable, as set forth on Supplier's website. In the event of planned
unavailability outside of a regular maintenance interval, Supplier will attempt
in good faith to provide Customer with at least 7 days' notice of the
unavailability. Planned outages may also be announced via email sent to
Customer's IT contact as provided to Supplier. Subject to the foregoing,
SUPPLIER AND ITS SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS
A RESULT OF ANY UNAVAILABILITY OF, INACCESSIBILITY TO, OR INABILITY TO USE, THE
PRODUCT, WHETHER OR NOT THE UNAVAILABILITY, INACCESSIBILITY, OR INABILITY TO
USE, IS WITHIN THEIR CONTROL, EXCEPT FOR CREDITS OR REFUNDS PROVIDED BY SUPPLIER
UNDER THESE PRODUCT USE TERMS AND SUPPLIER'S SUPPORT OBLIGATIONS UNDER THESE
PRODUCT USE TERMS.
agrees to read and implement the "Disaster Preparedness" guide
included within Product's online help so as to ensure continuity of service
during an outage.
c) Customer agrees to periodically review and test the disaster preparedness measures so taken, to ensure they are sufficient for maintaining continuity of service through an outage of twenty-four (24) hours. IN THE EVENT CUSTOMER CANNOT ENSURE CONTINUITY OF SERVICE THROUGH AN OUTAGE OF TWENTY-FOUR (24) HOURS, CUSTOMER SHALL CEASE ALL USE OF PRODUCT AS SOON AS POSSIBLE OR WITHIN SEVENTY-TWO (72) HOURS, WHICHEVER COMES FIRST.
(a) PROVIDED THAT SUPPLIER HAS TAKEN REASONABLE PRECAUTIONS TO BACKUP THE CUSTOMER DATA, SUPPLIER SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY LOSS OF DATA OR INFORMATION. IF SUPPLIER FAILS TO TAKE SUCH PRECAUTIONS, SUPPLIER'S TOTAL AGGREGATE LIABILITY FOR LOSS OF DATA SHALL NOT EXCEED THE AVERAGE ANNUAL AMOUNTS PAID TO SUPPLIER BY CUSTOMER FOR THE STORAGE OF CUSTOMER'S DATA USING THE PRODUCT.
(b) A WEEKLY BACKUP OF THE CUSTOMER DATA SHALL CONSTITUTE REASONABLE PRECAUTIONS.
(c) Customer acknowledges and agrees that the data export facilities within the Product, and described within the Product's online documentation, are fully sufficient for the task of downloading and archiving all Customer Data from the Product to the Customer's private custody.
(d) Customer acknowledges and agrees that all Customer Data stored within the Product will be permanently destroyed at the end of the Cooldown Period. Customer acknowledges and agrees that the time interval of the Cooldown Period is fully sufficient for the task of downloading and archiving all Customer Data from the Product to the Customer's private custody.
(e) The Product indicates to Customer that the Cooldown Period has started by displaying a blinking red ticket icon no less than 90 pixels by 90 pixels in size on its home page. Customer acknowledges and agrees that this indication is obvious and sufficient.
The Product may provide, or third parties may provide through the Product, links to other Internet sites or resources. Because Supplier has no control over such sites and resources, Customer acknowledges and agrees that Supplier shall not be held responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such other sites or resources.
(a) Suggestions. Customer acknowledges that Supplier does not wish to receive any information or technology related to the Product. Accordingly, except as otherwise agreed by Supplier in writing prior to disclosure of the information or technology to Supplier, Supplier has the non-exclusive, perpetual, non-terminable, paid-up, royalty free, worldwide right and license, with the right to grant and authorize sublicenses, to incorporate all such information and technology into products and services and to make, have made, use, sell, offer to sell, import, reproduce, distribute, transmit, publicly display and perform, and otherwise exploit such products, services and derivatives thereof.
(b) Trademarks. Supplier, the Supplier logo, and other Supplier trademarks, trade names, service marks and logos are marks of Supplier (the "Supplier Marks"), and Customer shall not use or display the Supplier Marks or any marks or logos confusingly similar thereto.
i. Exception is granted for the Customer to display on Customer's public website a 250x120 pixel image of Supplier's "winged A" logo as long as Customer's Server Instance remains active.
(c) Proprietary Rights Notices. Customer shall not (and shall not allow any third party to) remove, alter or obscure any patent, copyright, trade secret, trademark, or other intellectual property or proprietary rights notices (including restricted rights notices) of Supplier on the Product.
(d) No Rights or Licenses. No rights or licenses are granted to Customer in these Product Use Terms. All rights, title, and interest in and to all technology and intellectual property concerning the Product are and shall be solely owned by Supplier.
EXCEPT FOR ANY SUPPORT OBLIGATIONS OF SUPPLIER, ALL PRODUCTS ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, AND SUPPLIER AND ITS SERVICE PROVIDERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUPPLIER DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT, OR THE WEB SITE OR FACILITIES USED TO PROVIDE THE PRODUCT OR WEB SITE, WILL BE ERROR FREE, SECURE, OR UNINTERRUPTED. NO DOCUMENTATION SHALL BE BINDING UPON, OR CONSTITUTE A REPRESENTATION OR WARRANTY BY, SUPPLIER.
(a) All Product activations shall have a term of at least (1) month, and no more than two (2) years, except to the extent that Supplier has approved a shorter or longer term in writing.
(b) During the Cooldown Period the following limitations shall ensue and shall remain in force until such time as a valid unconsumed Server License is installed onto the Server Instance or else the Cooldown Period elapses and the Server Instance and all Customer Data and all backups thereof is permanently deleted:
i. No new dispatch record may be created by any means, including creation from scratch, creation by duplication of a prior dispatch record, and automatic creation by the "recurring dispatch" mechanism.
(c) In the event of any breach of the Product Use Terms, or any unauthorized access or use to the Product, or any failure to pay, Customer's Server Instance shall terminate WITHOUT a Cooldown Period and all Customer Data and all backups thereof shall be permanently destroyed thirty (30) days after notice of such breach, access, or use, unless Customer has cured the breach, or unauthorized access or use, within such thirty (30) day period.
(d) Supplier has the right to immediately suspend and terminate the Customer's Server Instance WITHOUT a Cooldown Period if there are any claims or actions are brought against Supplier by Customer or its affiliates or if any use of the Product is causing harm to Supplier, the Product, or others; if Supplier has not been paid for the Product; or if Supplier is prohibited or enjoined from providing the Product. SUPPLIER SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY SUCH SUSPENSION OR TERMINATION, subject to any refunds or credits that Supplier may be required to pay as set forth in these Product Use Terms.
(e) Supplier shall permanently destroy all Customer Data and all backups thereof at the end of the Cooldown Period; provided that if Customer did not have thirty (30) days' notice of the expiration of all Server Licenses, and if Supplier has been paid all undisputed amounts due to Supplier, Supplier will give Customer access to its account during such thirty (30) day period in accordance with the use terms described above as necessary to provide the Customer with an opportunity to retrieve lawful Customer Data.
i) The visible warning of impending Server License expiration given within the Product shall suffice as adequate notice for the purposes of this section.
(f) In the event of any termination or expiration of these Product Use Terms, sections 4, 5, 6, 7, 9, 10, 11, 12, 15, 16, 20, 21, and 22 of these Product Use Terms shall survive.
Except to the extent otherwise specified by Supplier, any dispute or claim related to or arising out of Customer's access or use of the Product, or the interpretation, making, performance, breach or termination of these Product Use Terms that involves Supplier or its affiliate shall be finally settled by arbitration in accordance with the then current rules of arbitration of the American Arbitration Association (the "Rules") by three (3) arbitrators, one selected by each party and the third selected in accordance with such rules. Such arbitration shall be held in Harris County, Texas, USA and the proceedings and all pleadings, filings, written evidence, decisions and other relevant documents shall be in English. Any written evidence in a language other than English shall be submitted with an English translation. Any final decision issued in the arbitration shall be binding and conclusive upon the parties and may be entered as a final judgment by any court of competent jurisdiction. Notwithstanding the foregoing, the parties to the arbitration may apply to any court of competent jurisdiction for temporary or permanent injunctive relief without breach of this section. Each party shall bear its own costs in connection with the foregoing arbitration.
EXCEPT TO THE EXTENT OTHERWISE AUTHORIZED BY SUPPLIER, ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT INVOLVE SUPPLIER OR ITS AFFILIATE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, USA, WITHOUT REGARD TO CONFLICTS OF LAWS OF TEXAS OR ANY OTHER JURISDICTION.
Customer shall indemnify and hold harmless each of Supplier and its affiliates and the directors, officers, employees, customers, licensors, and contractors of Supplier and such affiliates and the successors and assigns of any of the foregoing (the "Supplier Indemnitees"), from and against any and all liabilities, damages, settlements, claims, actions, suits, proceedings, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other expenses of litigation) incurred by any Supplier Indemnitee based upon a claim of a third party to the extent resulting from: (a) a breach by Customer of these Product Use Terms; (b) the negligence, or illegal or willful misconduct, of Customer; (c) any Customer Data; or (f) otherwise arising out of Customer's use of the Product. Customer's obligations under this section shall not apply if the claim is caused by the Product alone in the absence of any access, use or other exploitation by Customer and in the absence of all Customer Data.