Access Credentials means the credentials provided by Company that allow you and your users to access Software and Services for operational use. Access Credentials may mean a username, log-in, password, serial key, electronic code, or other means of verifying user identity and rights to access the Software.
Agreement means these TOU, the Business Associate Agreement, any amendment, and any other attachment or statement of work associated with Company’s Software and Services.
Clearinghouse means an entity that processes transactions pursuant to Clearinghouse Services.
Clearinghouse Services: the financial and/or administrative electronic data interchange (“EDI”) provided by Company, and if applicable, third-party services providers.
Confidential Information means information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing Party (“Confidential Information”). Your Confidential Information does not include any Customer Data that we de-identify in accordance with the Agreement. Our Confidential Information includes, but is not limited to, the terms and conditions of the Agreement, all trade secrets, software, source code, Database, Access Credentials, information about Software and Services/any non-user facing aspect of the Software and Services, object code, specifications, documentation, business plans, roadmaps, customer lists and customer-related information, financial information, proposals, budgets, the results of testing and benchmarking of the Software and Services, and any information related to the pre-market testing and development of any Software or Service. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can establish that such information (1) is or becomes generally known or available to the public through no fault of the receiving Party, (2) was lawfully in the receiving Party’s possession before receipt from the disclosing Party without a duty of confidentiality, (3) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis, or (4) has been independently developed by the receiving Party without reference to any Confidential Information of the other.
Customer Data means any data and information that you or your users provide, generate, transfer, or make available to us under the Agreement, whether printed, electronic, or in any other format. Customer Data shall not include any De-identified Data that we de-identify in accordance with the Agreement.
Customizations means custom programming, which includes but is not limited to customized configurations, displays, formats, and reports.
Data Center means an entity that houses servers which host any applicable Software and Services.
De-identified Data means PHI and Personally Identifiable Information (“PII”) that is stripped of its identifiable elements, in accordance with the Health Insurance Portability and Accountability Act (“HIPAA”) and its implementing regulations, so as to render the individual’s data de-identified.
Documentation means user guides, instructions, Company notes, manuals, online help files, knowledge base, and other materials made available by us which describe the use of the Software and Services.
Effective Date. The Effective Date is the earlier of your subscription to the Software and Services or your use of the Software and Services.
Healthcare Providers means, collectively, (1) any individual who bills for the delivery of healthcare services, whether under their own National Provider Identifier (“NPI”) or the NPI of an organization; (2) any individual who provides revenue-generating services, whether billed under that provider’s NPI or otherwise (3) users of the system participating in clinical, counseling, or therapeutic care of patients.
Intellectual Property means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which Company has created, acquired or otherwise has rights in, and may, in connection with the performance of services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
Personnel means a Party’s employees, agents, contractors, and subcontractors.
Protected Health Information or PHI has the meaning ascribed to such term at 45 CFR § 160.103. That is the section of the Code of Federal Regulations that implements many of HIPAA’s requirements. A copy can be found at the following link: https://www.govinfo.gov/content/pkg/CFR-2017-title45-vol1/pdf/CFR-2017-title45-vol1-sec160-103.pdf .or https://tinyurl.com/4b8ddpdy.
Protected Materials means Software and Services, Customizations, training materials, or Company Intellectual Property or Confidential Information.
Software and Services means Company-developed, licensed, or owned software in machine readable format, the associated database, the Documentation for any such product, and any associated Updates as described in its Documentation. Software includes any database and licensed third-party products. Software and Services includes any services defined as such in its corresponding Documentation or an applicable purchase schedule, statement of work, or order form or similar contract document.
Updates means major and minor releases, maintenance releases, corrections, other changes to the Software and Services. Updates exclude new products, modules, add-ons, or functionality for which we charge a separate fee.
Users means any individual to whom Access Credentials are issued.
2. Purpose and Scope
3. Financial & Payment Terms
3(a) Fees and Payment Terms. Fees and payment terms are specified in the Software and Services and must be agreed to prior to subscription and use of the Software and Services. You agree to be charged for all services as invoiced. Prior to and during the subscription and use of the Software and Services, and until final payment for those Software and Services, you must submit and maintain current and valid payment information. You shall maintain sufficient funds to make payment to us as invoiced. Unless otherwise specified, all payments are due upon receipt, and collected by automatic debit from the payment method that you have provided. All payments are non-refundable and must be made in US dollars. Prices and fees are subject to taxes, other government mandated fees or assessments, and delivery charges, as applicable. You will make payments by Automated Clearinghouse (“ACH”) or credit card. If your ACH or credit card payment fails for any reason, we will try to process it again immediately. We will attempt this three times in total, and you will incur a charge from us for each unsuccessful attempt. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Credit card payments may be subject to an additional merchant’s fee if stated. Unless expressly provided for otherwise, fees paid or payable for Software and Services are not contingent under any circumstances upon the performance of any other Services, and may not be withheld. Payment of fees are under no circumstances subject or conditioned by the delivery of future products or functionality by Company. Further, you shall reimburse us for each non-sufficient fund charge we incur for any payment made by you. All payments are nonrefundable, and any credit is offered is in our sole discretion.
3(b) Taxes. Unless expressly provided for otherwise, the prices listed for subscription do not include taxes. You agree to pay any taxes, other than those based on our net income, arising out of the Agreement. If you are tax-exempt, you agree to provide us a copy of your tax-exempt certificate prior to using the Software and Services. You agree to indemnify us from any liability or expense incurred as a result of our failure or delay in paying taxes due.
3(c) Pass Through Fees. You agree to pay for any increase in fees that are charged to us by third parties and if the increase is due to reasons outside of our control.
3(d) Term and Increases in Fees. The agreement between you and us is month-to-month. We reserve the right to increase our fees at any time by providing you with fifteen (15) days written notice.
3(e) Payment Disputes. You must indicate that you are disputing any fees or expenses, in writing, within five (5) business days of receipt of the invoice specifying such fees or expenses. Prior to taking any formal legal action or submitting a complaint or dispute with a third party, you agree to attempt to resolve any payment dispute with us directly through our then-current support hotline for a period of thirty (30) days.
3(f). Advance Payments. You may within the Software and Services or through an alternate payment agreement with us, elect to choose to make payments in advance of their due date or may choose to pay for multiple terms in advance. Unless otherwise expressly stated in a separate order form, purchase schedule, or subscription, you acknowledge and agree that: (1) all advance payments are nonrefundable, (2) that we make no guarantee or representation by acceptance of advance payments that the pricing for the Software and Services will remain the same from month-to-month, and (3) that we may change the Software and Services or pricing thereof from month-to-month despite any advance payments.
3(g) Minimums. You understand and agree that fees are based on the number of licenses purchased, and that the number of licenses purchased represents the minimum amount that you have committed to for the relevant term and cannot be decreased during such term. In the event your actual need exceeds the number of licenses for the Software and Services, then you must purchase additional licenses at Company’s then current rates.
4(a) Non-Disclosure. Each Party will protect the other Party’s Confidential Information from unauthorized dissemination and use the same degree of care that each Party uses to protect its own Confidential Information, but in no event less than a reasonable amount of care. Neither Party will use Confidential Information of the other Party for purposes other than those necessary to further the purposes of the Agreement or as otherwise authorized herein. Neither Party will disclose to third Parties Confidential Information without prior written consent of the other Party except as authorized herein.
4(b) Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party if it’s compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure.
4(c) Copyright Placement. Our placement of a copyright notice on any such portion of any Software and Services will not be construed to mean that such portion has been published and will not derogate from any claim that such portion contains proprietary and confidential information of ours.
4(d) Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damage.
4(e) System Monitoring. We, our affiliates, Data Centers, and Clearinghouses may monitor your usage, performance, and operation of the Software and Services using electronic, remote, and other means without notice to you.
4(f) Non-disparagement. You agree that you will not, either on your own account or directly or indirectly in conjunction with or on behalf of any other person or entity, disparage, defame, impugn, damage, or assail our reputation; nor shall you make any communication about us that would make the recipient likely to question the integrity, competence, good character, professionalism, or product quality.
5. Reservation of Rights and Restrictions
(5)(a) Reservation of Rights. All rights not expressly granted in the Agreement are reserved by us and our licensors. You acknowledge that: (i) all Protected Materials are licensed and not sold; (ii) you acquire only the right to use the Protected Materials and we and our licensors shall retain sole and exclusive ownership of and all rights, title, and interest in the Protected Materials, (a) Intellectual Property embodied or associated with the Protected Materials, (b) deliverables and work product associated with the Protected Materials, and (c) all copies and derivative works thereof; and (iii) the Protected Materials, including the source and executable code, logic and structure, constitute valuable trade secrets of ours and our licensors. You agree to secure and protect the Protected Materials consistent with the maintenance of our and our licensors’ rights. You shall reimburse us for any and all expenses that we may incur (including interest, attorneys’ fees and other legal expenses) in connection with our efforts to enforce our rights against you with respect to the Protected Materials, or any of our Intellectual Property Rights in the event we prevail in such enforcement efforts.
(5)(b) Restrictions. You shall not: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Protected Materials; (ii) copy, decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Protected Materials, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Protected Materials to any user other than those who have licenses to access; (iv) write or develop any derivative works based upon the Protected Materials; (v) modify, adapt, translate or otherwise make any changes to the Protected Materials or any part thereof; (vi) use the Protected Materials to provide processing services to third Parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without our prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Protected Materials; (viii) otherwise use or copy the Protected Materials except as expressly permitted herein; or (ix) remove from any Protected Materials identification, patent, copyright, trademark or other notices or circumvent or disable any security devices functionality or features. For the avoidance of doubt, you may copy or reproduce Protected Materials for the limited purpose of creating internal training materials for your internal use in connection with your use of the Software and Services, provided that such materials are destroyed upon the termination of the Agreement. You shall ensure that all users of the Protected Materials comply with the terms and conditions of the Agreement, and shall promptly notify us of any actual or suspected violation. Further, you will cooperate with us with respect to investigation and enforcement of the Agreement.
6. Your Responsibilities.
6(a) Customer Equipment. You are responsible for obtaining, deploying, and maintaining all computer hardware, software, modems, routers, or other equipment necessary for your Users to access and use the Software and Services as described in the Documentation. If any hardware, equipment, or third-party software supplied by you impairs your system, your use of the Software and Services, or causes the Software and Services to fail, not to operate properly in connection with your system, we shall have no liability for such impairment, failure, or improper operation.
6(b) Users’ Compliance. You assume sole responsibility and liability for any Users’ compliance with the terms and conditions of the TOU and Agreement. You further assume sole responsibility and liability for results obtained from the use of Protected Materials and for conclusions drawn from such use. We shall have no liability for any claims, losses, or damages arising out of or in connection with your or any of your Users use of the Protected Materials, any third-party products, services, software, or websites that are accessed via links from within the Software and Services.
6(c) Healthcare Providers’ Responsibility. You acknowledge and agrees that we are not a Healthcare Provider. You further agree and acknowledge that we do not provide 24/7, synchronous, or emergency alerting. In the event that Software and Services, or any database or any report or information generated from the Software and Services is used in connection with any diagnosis or treatment, you accept all liability for such diagnosis or treatment. You agree that the sole and exclusive responsibility for any medical decisions or actions with respect to a patient’s medical care and for determining the accuracy, completeness, or appropriateness of any diagnostic, clinical, or medical information provided by the Software or the Services and any underlying database resides solely with you and the responsible Healthcare Provider. We assume no responsibility for how such information is used. The choice with respect to when and how to use the Software and Services and any database is your responsibility and the same is to be used at your discretion. You understand and agree that the responsibility for medical treatment rests with you. None of the databases, Software, or Services provided hereunder are intended in any way to suggest any procedures, medication, or physical findings for the patient or eliminate, replace, or substitute for, in whole or in part, your judgment and analysis of a patient’s condition. You are wholly responsible for obtaining all required patient consents or other authorizations necessary for your or any Users’ use of the Software and Services, including, without limitation, clinical data exchange or population health management services. You represent, warrant, and covenant that you shall comply with all relevant laws relating to the privacy and security of PHI and Personally Identifiable Information (“PII”).
6(d) Payers, Billing, and Overpayment. You acknowledge and agree that you are solely responsible for refunding any overpayment from a federal, state, or commercial payer, and are also responsible for complying with any unclaimed property laws. Unless specified separately in a Purchase Schedule, statement of work, or other amendment to the Agreement, you shall be solely responsible for billing any claims with the appropriate payers. Further, unless specified separately in a Purchase Schedule, statement of work, or other amendment to the Agreement, you shall be solely responsible for submitting reports and other data to applicable payers and other entities that may request it, such as auditors.
6(e) All Software and Services must be accessed from within the United States. You agree and acknowledge that the Software and Services are designed for use only in the United States. In the event you access Software and Services outside of the United States, you do so at your own risk, and indemnify Company from any cause of action, whether in law, equity, or administrative that arises from such use. Accessing the Software from outside the United States gives us the right to terminate the Agreement.
(6)(f) Each individual, whether an employee, contractor, subcontractor, affiliate, partner, or otherwise, who accesses or uses any Software and Services on your behalf must have their own Access Credentials. Users may not share access credentials with any other individual.
7. Your Data.
7(a) Limited License. You hereby grant us a limited, non-exclusive, royalty-free, worldwide license to use, reproduce, aggregate, and modify Customer Data and to perform all acts as necessary for us to provide the Software and Services to you, subject to the limitations regarding PHI as set forth in the Business Associate Agreement. Such acts include, but are not limited to, improving our products, marketing to you, conducting analyses of our customers to identify product or services needs, or conducting research or engaging in public health activities. Such license shall also permit us to use or modify the Customer Data for the purposes of creating De-identified Data from PII and PHI contained in Customer Data. We intend to use De-identified, aggregated with the de-identified data of other customers, to enable us to provide our customers more targeted, accurate, and useful insights.
7(b) De-Identified Data. Ownership of and all rights associated with the De-identified Data, including without limitation, those associated with Intellectual Property, shall vest with us upon the de-identification of the data. We may use, crate, modify, aggregate, and disclose De-identified Data for any purpose not prohibited by law.
7(c) Customer Data. As between you and us, all right, title, and interest in the Customer Data belong to and are retained solely by you.
7(d) Feedback License. We own all right, title, and interest in and to any suggestion, enhancement, request, recommendation, or other feedback related to the Software and Services provided by you. Feedback shall not be considered your Confidential Information pursuant to the Agreement.
8. Representations and Warranties
8(a) Compliance Warranty. Each Party represents, warrants and covenants that such Party has conducted reasonable inquiry and based thereon is informed and believes that: (a) it has the full power and authority to enter into the Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; (b) its acceptance of and performance under the Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust; and (c) it complies with and will comply with any and all applicable local, state, and/or national laws or regulations applicable to such Party, including, without limitation, those related to PHI, Covered Entities, and Business Associates as each term is defined under HIPAA, and to any other laws or regulations regarding data privacy and transmission of personal data.
8(b) HIPAA. Each Party, to the extent applicable, will comply with laws and regulations applicable to the privacy and security of individually identifiable health information, including but not limited to state laws and regulations and the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and/or regulations promulgated thereunder (“HIPAA Regulations”). State law, HIPAA, HITECH, HIPAA Regulations and other federal laws and regulations are hereafter referred to collectively as “Privacy Laws”. You shall execute The Business Associate Agreement, following the instructions available at the following link: https://theranest.zendesk.com/hc/en-us/articles/360057160471-Sign-New-BAA or https://tinyurl.com/4spm46re prior to using the Software and/or Services in conjunction with any PHI. The BAA further describes the Parties’ obligations with respect to compliance with HIPAA, HITECH, and HIPAA Regulations.
8(c) Warranty. We warrant that, for the Term, the Software and Services will operate in all material respects in conformity with the functional specifications described in the Documentation. If the Software and Services do not perform or are not performed as warranted during the Term, we shall use commercially reasonable efforts to correct errors. You shall promptly notify us in writing of its claim. Provided that such claim is determined by us to be our responsibility, we shall, within 60 days of its receipt of Customer's written notice, (i) correct such error; (ii) provide you with a plan reasonably acceptable for correcting the error; or (iii) if neither (i) nor (ii) can be accomplished with commercially reasonable efforts from us, then we may, at our election, (i) offer a substantially similar replacement Software or reperformance of the Service, or (ii) terminate the Agreement. The preceding warranty cure shall constitute our entire liability and your exclusive remedy for cure of the warranty set forth herein.
8(d) Third-party Products. You acknowledge that certain portions of the Software and Services may contain third-party products and services (“Third Party Products”). We may add and/or substitute functionally equivalent products for any Third Party Products in the event of product unavailability, end-of-life, or changes to software requirements. We make no warranty with respect to any Third Party Products. Your sole remedy with respect to such Third Party Products shall be pursuant to the original licensor’s warranty, if any, to us, to the extent permitted by the original licensor. Third Party Products are made available on an “AS IS, AS AVAILABLE” BASIS.
9. Disclaimers and Limitation of Liability.
9(a) Warranty Disclaimer. THE WARRANTIES, IF ANY, SET FORTH IN THE AGREEMENT ARE IN LIEU OF ANY OTHER WARRANTY. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS TO THE ACCURACY OR USEFULNESS OF THE SOFTWARE AND SERVICES, PROFESSIONAL SERVICES, OR CLEARINGHOUSE SERVICES OR ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM, PAST PRACTICE, OR TRADE USE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND SERVICES, OR DATABASE, OR STORAGE OF DATA, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF OR ANY PROFESSIONAL SERVICES OR CLEARINGHOUSE SERVICES, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUSES OR OTHER HARMFUL CODE, ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM THE SOFTWARE AND SERVICES OR PROCESSING OF DATA (OR ANY SOFTWARE OR OTHER CONTENT CONTAINED IN OR PROVIDED THROUGH THE SOFTWARE AND SERVICES) ARE ACCURATE OR RELIABLE. FOR THE AVOIDANCE OF ANY DOUBT, WE FURTHER EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRSENTATIONS RELATED TO THE ELIGIBILITY FOR, TIMING, AND AMOUNT OF REIMBURSEMENT FROM ANY FEDERAL, STATE, OR COMMERCIAL PAYER THAT MAY RESULT FROM YOUR USE OF THE SOFTWARE AND SERVICES, PROFESSIONAL SERVICES, OR CLEARINGHOUSE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND IMPROVEMENTS TO THE PROTECTED MATERIALS AT ANY TIME AND WITHOUT NOTICE.
9(b) YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SERVICES, AND OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER TO ACHIEVE THE YOUR INTENDED RESULTS. YOU ACKNOWLEDGE THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND SOFTWARE AND SERVICES, AND CUSTOMER DATA, AND THAT NO FORM OF ENCRYPTION IS FOOLFULL PROOF. ACCORDINGLY, WE CANNOT AND DO NOT GUARANTEE THE PRIVACY, SECURITY, OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
9(c) Excluded Damages. IN NO EVENT WILL WE, OUR LICENSORS, CLEARINGHOUSES, DATA CENTERS, OR SUPPLIERS BE LIABLE TO YOU OR YOUR USERS OR ANY OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, WHETHER OR NOT WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9(d) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, OUR, OUR LICENSORS’, CLEARNINGHOUSES’, DATA CENTERS’, AND SUPPLIERS’ TOTAL LIABILITY (INLCUDING ATTORNEYS’ FEES AWARDED UNDER THE AGREEMENT) TO YOU FOR ANY CLAIM BY YOU OR ANY THIRD PARTIES UNDER THE AGREEMENT, WILL BE LIMITED TO THE FEES PAID TO US UNDER THIS AGREEMENT DURING THE ONE (1) MONTH PRIOR TO THE OCCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
9(e) Limitation of Action. No action (regardless of form) arising out of the Agreement between you and us may be commenced by you against us more than one (1) year after the cause of action arose.
9(f) Transaction Accuracy. If any information received from you and transmitted to a payer, pharmacy, or lab is not accurate as a result of a failure by us or any Clearinghouse or third-party services provider, then our sole obligation and liability shall be to use commercially reasonable efforts to re-perform the transaction. Neither us, any Clearinghouse, nor any third-party services provider shall be liable for any actual or alleged monetary loss resulting from the use or inability to use any Software and Services or Clearinghouse Services that facilitate transactions. Any claims under this section must be asserted in writing within thirty (30) days after the transmission of the transaction on which such claim is based. You agree to promptly provide us any documentation reasonably requested to support such a claim under this section.
9(g) Transaction Services Limitations. Neither us nor any third party services provider will have any (i) responsibility for determining the accuracy of any transaction, (ii) responsibility for settling disagreements or disputes between a payer, pharmacy, lab, and/or Customer, or (iii) any liability for the acts or omissions of a payer, pharmacy, lab, or you.
9(h) Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED OUR SOFTWARE AND SERVICES AND ENTERED INTO THE AGREEMENT TO WHICH IT IS A PARTY IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. YOU ACKNOWLEDGE AND AGREE THAT WE WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE AND SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
10(a) Indemnification by Customer. You shall indemnify and hold harmless Company and its officers, directors, employees and agents (“Company Indemnified Parties”), from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) (“Losses”), arising, directly or indirectly, out of or relating to any claim, action or proceeding (a “Claim”) brought by a third party based on (i) the improper use or operation of the Software and Services (and any third party software provided to Customer pursuant to the Agreement), by you or your users, including, without limitation, any non-authorized use of your user logins, provided, however, that you shall have no indemnification obligation for any claim for which the proximate cause was our gross negligence or willful misconduct; (ii) a breach of the Agreement by you or any of your Users, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of Customer Data or any other content or data introduced to the Software and Services by any User; (iv) violation of any applicable law, rule or regulation by you or any of your Users, (v) the diagnosis and/or treatment of any of your patients or clients; and/or (vi) your negligent acts or willful misconduct, or that of your personnel. You will pay all Losses (whether by settlement or award after a final non-appealable judicial judgment) incurred by the Company Indemnified Parties from any such Claim.
10(b) Indemnification by Company. Subject to limitations of liability as set forth in Section 9, we agree to defend you and your officers, directors, employees and agents (a “Customer Indemnified Party”) from and against any Claims brought by a third party resulting from or arising out of (i) the unauthorized disclosure by us of PHI in breach of the Business Associate Agreement; and (ii) a successful claim that the Software and Services infringes or misappropriates the patent, trade secret, trademark, copyright or other Intellectual Property Rights of any third party (an “Infringement Claim”). We will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Claim.
11(b) Cancellation & Renewal. The Agreement shall automatically renew for subsequent terms in accordance with the subscription that you selected, unless you cancel or modify it’s the subscription in advance of its termination through your subscription page. Failure to cancel through the subscription page will result in additional terms being billed until you appropriately cancel the subscription. All such payments are nonrefundable.
11(c) Nonpayment. If you fail to make timely payments of any fees, (1) you shall be in material breach of the Agreement, (2) we shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then-current term of the applicable Software and Services are immediately due and owing, and (3) you shall be responsible to pay any collection expenses, including reasonable attorneys’ fees, incurred by us.
11(d) Suspension of Services. We will be entitled to suspend any or all services immediately in the event you are in breach of the Agreement.
11(e) Material Breach & Cure Period. Either Party may terminate the Agreement following a material breach by the other Party which is not cured during the Cure Period. The non-breaching Party shall notify the breaching Party of the breach in writing and the breaching Party shall have thirty (30) days (the “Cure Period”) to cure the breach or to provide the nonbreaching Party with a plan reasonably acceptable to the nonbreaching Party for curing the breach following receipt of the notification. If the breaching Party fails to cure the breach within the Cure Period or according to a plan reasonably acceptable to the nonbreaching Party, then the non-breaching Party may terminate the Agreement upon written notice to the breaching Party. In the event we, in our sole discretion, determine that you are in breach of your obligations under Section 8(a) or are otherwise using the Software and Services in a manner that violates any applicable law or regulation, we may immediately suspend the Software and Services upon written notice to you.
11(f) Bankruptcy. We may terminate the Agreement if, with respect to you, there is a filing of a voluntary or involuntary petition in bankruptcy if such petition is not dismissed within thirty (30) days of such filing or upon the appointment of a receiver or trustee to take possession of all, or substantially all, of your assets, if such appointment is not terminated withing thirty (30) days.
11(g) Exclusion. We may terminate the Agreement if you are excluded from participation in Medicare.
11(h) Legal Conflicts with the Agreement. We may terminate this Agreement if in the reasonable opinion of our legal counsel, termination is required to avoid a violation of law if the Agreement were to continue under the existing terms without the Parties mutually agreeing to modify its terms.
11(i) Effect of Termination. Unless otherwise stated below, upon expiration or termination of the Agreement for any reason, (a) the license(s) shall terminate and you shall not use or access, directly or indirectly, the Software and Services; (b) our obligation to perform support services shall cease; and (c) all fees and other amounts owed to us will be immediately due and payable by you. If you have made any copies of our property or materials, including without limitation the Software and Services, you shall either destroy or return them, along with a signed certificate that all such copies have been either destroyed or returned, respectively, and that you have not retained any copy or any part of the Software and Services or Protected Materials has been retained by you in any form.
11(j) Data Export. Upon termination of the Agreement, you shall bear the full responsibility for the migration of your data to new Software and Services. We, at our option, may provide data exports and any other assistance related to the migration of your data at our then current rates.
12(a) Non-solicitation and Noncompete. You acknowledge and agree that our employees and contractors are a valuable asset to us, that we expended significant resources in recruiting and training such employees and contractors, and that such employees and contractors are and would be difficult for us to replace. Accordingly, you agree that, for the term of the Agreement and for a period of twelve (12) months thereafter, that you will not offer to retain any such employee or contractor, whether as an employee, independent contractor or otherwise. In the event you breach the prohibition against solicitation, the parties agree that it would be difficult to determine the amount of actual damages that would result from such breach. The parties further agree that in the event you breach the provisions of this section, you shall pay us liquidated damages equal to one hundred (100) percent of such employee or contractor’s annualized compensation, which is the parties’ good faith estimate of the amount of damages from such breach. Additionally, during the Term of the Agreement and for two (2) years thereafter, you are prohibited from directly or indirectly creating, operating, or managing a service, program, legal entity, or business model that in any way competes with our business model or operations. A breach of this Section 12 will be considered a material breach of the Agreement and will allow for termination for cause and subsequent legal action.
12(b) Subcontractors. We may use affiliates or subcontractors to perform our obligations hereunder.
12(c) Notices. Any notices, requests, consents, demands or other communications required or permitted under the Agreement will be in writing and deemed to have been duly given, with respect to you, when emailed to the contact information and email addresses that you have provided in your contact information, and with respect to us, when delivered to:
2 20th St N Suite 500
Birmingham, AL 35203
Attention: Chief Legal Officer
With copy by email to: email@example.com
12(d) Amendment. We may, with thirty (30) days’ notice, and at our sole discretion, modify this Agreement. Your continued use of our Software and Services constitutes your acceptance of the modified Agreement.
12(e) Waiver; Severability. The failure of any Party to insist in any one or more instances upon performance of any term of the Agreement will not be construed as a waiver of future performance of the term, and the Party’s obligations with respect to such term will continue in full force and effect. The provisions of the Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of this entire Agreement in that jurisdiction.
12(f) Assignment. Neither Party may assign or transfer the Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld; provided, however, that we may assign or transfer the Agreement, without your consent, to any of our affiliates, subsidiaries, entities controlled by or under common control with us, or in the event of a merger, change of control or sale of substantially all of our assets. The Agreement will bind the Parties and their respective successors and assigns and will inure to the benefit of the Parties and their respective permitted successors and assigns.
12(g) Force Majeure. If any Party is unable to perform any of its obligations under the Agreement (other than payment obligations) because of any cause beyond the reasonable control of and not the fault of the Party invoking this section, including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, pandemic, destruction of production facilities, riot, insurrection or material unavailability, and if the non-performing Party has been unable to avoid or overcome its effects through the exercise of commercially reasonable efforts, such non-performing Party will give prompt notice to the other Party, and its performance will be excused, and the time for its performance will be extended for the period of delay or inability to perform due to such occurrences.
12(h) Relationship of the Parties. The sole relationship between the Parties is that of independent contractors. The Agreement will not create a joint venture, partnership, agency, employment or other relationship between the Parties. Nothing in the Agreement will be construed to create any rights or obligations except among the Parties; and no person or entity will be regarded as a third party beneficiary of the Agreement, except as otherwise provided in the Agreement.
12(i) Survival. Any term of the Agreement that contemplates performance after termination will survive expiration or termination and continue until fully satisfied.
12(j) System Availability. You understand that as part of scheduled maintenance and other planned downtime events, as well as certain events outside of our direct control resulting in unplanned downtime events, your access to the Software and Services, hosted by either us or you, may be partially or completely restricted.
12(k) Versioning. We shall only support the most recent version of its Software.
12(l) Anti-Kickback Statute. The Parties to the Agreement certify that this Agreement and any payments made, or items or services provided hereunder were determined in a manner that does not take into account the volume or value of referrals or business generated between the Parties. The Parties agree that this Agreement and their relationship is intended to comply with 42 U.S.C. Section 1320a-7b, commonly referred to as the Anti-Kickback Statute.
12(m) Injunctive Relief. The Parties agree that, in the event of any breach of any of the covenants and agreements set forth in the Agreement, the non-breaching Party would encounter extreme difficulty in attempting to prove the actual amount of damages suffered by it as a result of such breach and would not have adequate remedy at law in such event. The Parties therefore agree that, in addition to any other remedy available at law or in equity, in the event of such breach, the non-breaching Party shall be entitled to seek and receive specific performance and temporary, preliminary and permanent injunctive relief from violation of any of said covenants and agreements from any court of competent jurisdiction without necessity of proving the amount of any actual damage resulting from such breach and without the necessity to post a bond or other security.
12(n) Headings and Drafting. The headings in the Agreement shall not be used to construe or interpret the Agreement. This Agreement shall not be construed in favor of or against a Party based on the author of the document.
12(o) Prior Agreements. If, prior to the Effective Date, you purchased or licensed from us, or any of our predecessors or affiliates, software, services or other products pursuant to any license agreement(s) or similar contract(s) (such agreement(s) being the “Prior Agreement”): (i) All Prior Agreements are hereby terminated as of the Effective Date and are of no further effect and this Agreement governs the entirety of the Parties’ relationship at all times, provided that obligations for payments not yet made and obligations of confidentiality shall survive termination of the Prior Agreement.
12(p) Publicity. Neither Party will issue any press release or other voluntary public communication regarding this Agreement, or the relationship described by this Agreement without giving the other Party an opportunity to review and comment upon such communication and obtaining the written consent of the other Party. Notwithstanding the foregoing sentence, during the term of this Agreement, we may identify you publicly as our customer in press releases, on its website, or otherwise, and you may identify us publicly as a vendor of yours in press releases, on its website, or otherwise, provided that such identification does not reveal any terms of this Agreement beyond the basic nature of the services provided and does not mischaracterize the relationship.
12(q) Export. You shall comply fully with all relevant export laws and regulations of the United States to ensure that the Protected Materials are not exported, directly or indirectly, in violation of United States law.
12(r) Entire Agreement. The TOU, including all applicable attachments and amendments, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
12(s) No Third-party Beneficiaries. The Agreement is for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a Party, any customer of a Party, or any employee of a customer of a Party.
12(t) Waiver of Jury Trial. Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to the Agreement.
12(u) Class Action Waiver. The Parties agree that any litigation arising out of or relating to the Agreement may only be maintained on an individual basis, and any right to pursue any claims arising out of or relating to this Agreement may not consolidate more than one Party’s individual claims or be raised on behalf of a class of Parties.
12(v) Governing Law and Venue; Attorney’s Fees. The Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, without giving effect to its principles of conflict of laws. Any dispute shall be litigated in the appropriate complex business litigation division of the state or federal courts located in or encompassing, as the case may be, Birmingham, Alabama, to whose exclusive jurisdiction the Parties hereby consent. In any court action governed by this section, the prevailing party will be entitled to its costs and reasonable attorney’s fees, in addition to any other relief to which that party may be entitled.
12 (w) AMA Supplemental License Terms. If the Software and Services provided hereunder incorporate Current Procedural Terminology (CPT) content, you agree to the terms set forth in the AMA Supplemental License Terms Attachment available at . . .