Full software as a service (SaaS) cloud-based solution for non-prescribing behavioral health users.
*One Time Setup Fee - $8,000 (50% with initial order confirmation / 50% due upon software activation)*
Small Practice Behavioral Health Non-Prescriber
Software as A Service Includes:
- 1 Behavioral Health Provider/User with Cloud Hosting (one user)
- 1 Behavioral Health Practice (one practice)
- 1 NextGen Enterprise E-Learning User (one user)
- 1 User for CPT codes (issued by the American Medical Association)
- 1 User for Microsoft Excel (used for report downloads into excel)
- Maintenance and Product Support (8:30 AM - 5:30 PM - all US Timezones)
Software as A Service Excludes:
- Any interface to include: Labs, Radiology, Health Information Exchange, and/or other third party applications
- Any clinical content/forms that currently doesn't exist within the NextGen Healthcare Knowledge Base Module (KBM)
This Master Software as a Service (SaaS) Agreement (the "Agreement"), dated as of the date of the Order Confirmation (the "Effective Date"), is between you, the legal entity/person on the Order Confirmation ("Customer"), located at legal address, city, state and zipcode on the Order Confirmation and Topaz Information Solutions, LLC, an Arizona limited liability company with offices located at 2700 N. Central Ave, 15th Floor, Phoenix Arizona ("Company") (Each a “party” collectively “parties”).
- Company, provides integrated electronic health record and practice management solutions for health care organizations.
- Company is an authorized vendor for NextGen Healthcare, which is an electronic health records and practice management platform.
- Customer, through its various Affiliates, provides primary medical and behavioral health services in the United States.
- Both Company and Customer desire to enter into this Agreement under the following terms and conditions.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control” means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than Fifty percent (50%) of the voting securities of a Person.
“Business Associate Agreement” means the Business Associate Agreement between Company and Customer and attached hereto as Exhibit E.
“Business Day” means Monday through Friday, except for federal or state holidays observed by Company and on which Company is generally closed for business.
“Business Hour” means the hours of 7:00 a.m. to 5:30 p.m., Arizona Time on Business Days.
“Customer Data” means any and all information, data, or other content, including any that are uploaded, transmitted or otherwise made available to or received by Company or on behalf of Customer (or its Affiliates) or any User for Processing by or through the Services, pursuant to this Agreement or any Service Order. For the avoidance of doubt, Customer Data includes all Individually Identifiable Health Information but does not include any Company Materials.
“Designated Location” means the address set forth for each properly licensed User.
“Documentation” means all generally available documentation relating to the Services or Service Software, including all user manuals or materials, in any form or media, that describe the Services or Service Software, or any other information provided to Customer by Company under this Agreement.
“Harmful Code” means any software, other technologies, or means, including but not limited to viruses, time bombs, Trojan horses, worms, traps or other mechanisms, the purpose or effect of which is to: (a) permit unauthorized access to, or to harm, erase, damage or disrupt in any manner, any (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use or operation of any data processed thereby; or (b) prevent any User, so long as Customer is not in breach of this Agreement, from accessing or using the Services or Company Systems as intended by this Agreement, and includes any malicious computer code.
“Healthcare Provider” means a Person who renders health care services directly to and makes clinical decisions regarding a patient, including but not limited to physicians, optometrists, physical therapists, nurse practitioners, physician assistants, social workers, case managers, therapists, and psychiatrists.
“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations, including: (a) the Administrative Simplification rules; (b) the Privacy Rules at 45 C.F.R. Part 160 and Part 164, subparts A and E; (c) the Security Rules at 45 C.F.R. Part 160 and Part 164, subparts A and C; and (d) the Breach Notification Rule 45 C.F.R. Part 160 and Part 164 subpart D.
“Individually Identifiable Health Information” is defined in Section 11.
“Intellectual Property Rights” means any and all rights comprising or relating to: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs) and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the United States.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any court or tribunal of competent jurisdiction.
“Loss” means any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder.
“Module Descriptions” means the Module Descriptions for the Services set forth in the Fees (Exhibit A) or the applicable Service Order (Exhibit A).
“NextGen” shall mean NextGen Healthcare Information Systems, Inc., a California corporation.
“NextGen Marks” means any and all trademarks, trade names, trade dress, service marks, service names, logos, symbols, and any and all other branding indicia that appear or may appear, at any time while the Agreement remains in force, as part of, on or otherwise in association with NextGen’s products or services, or with any publication or presentation promoting those products and services that identifies NextGen as their source or origin.
“Permitted Uses” means any use of the Services by Customer or any User for the benefit of Customer or any of its Affiliates in or for Customer's or its Affiliate's internal business operations in accordance with Section
3.2 and the applicable Service Order.
“Person” means an individual, corporation, partnership, joint venture, Limited Liability Company, governmental authority, unincorporated organization, trust, association or other entity.
“Process” means to perform any operation or set of operations on any data, information, material, or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. "Processing" and "Processed" have correlative meanings.
“Service Issue” means any failure of any Service to be Available or otherwise materially perform in accordance with this Agreement, the Documentation or the Module Descriptions. Service Issue shall not include errors caused by errors created by changes made by the Client to the Service Software or Modules.
"Service Level Failure" means a failure to perform the Support Services fully in compliance with the Support Service Level Requirements.
“Service Software” means the Company software application or applications specified in a Service Order, including but not limited to NextGen Billing and Clinical Software and the Third Party Software, and all new updates, revisions, improvements, and modifications of the foregoing, that Company provides remote access to and use of as part of the Services. For the avoidance of doubt, any modules not included in a Service Order, and any new stand-alone modules that add entirely new functionality which Company offers only for an additional fee to its customers generally, shall not be included as Service Software (Customer may add such additional modules and new modules, new versions or improvements at Company’s then current standard rates).
“Territory” means the United States of America.
“Third Party Software” means any software developed by any party other than NextGen or Company, the third party software set forth in any Appendix under the heading “Third-Party Software” (including, without limitation, Citrix Systems, Inc.) that is necessary or helpful for Customer to fully access and utilize the Service Software.
“Company Materials” means all devices, documents, data, know-how, processes, software and other inventions, works, technologies and materials, including any and all Service Software, Documentation, computer hardware, programs, reports and specifications, third party software and deliverables provided or used by Company in connection with performing the Services.
“Company Personnel” means all employees and agents of Company, all Subcontractors and all employees and agents of any Subcontractor, involved in the performance of Services.
“Users” means the Healthcare Providers, employees, and contractors performing services for Customer that require access to Services. Users shall not include any employees, contractors, or agents of any competitor of Company, providing healthcare IT solutions including but not limited electronic medical records. .
“User Data” means any and all anonymous, aggregated information reflecting the access or use of the Services by or on behalf of Customer or any User, including any end user profile-, visit-, session-, impression-, click through- or click stream- data and any statistical or other analysis, information or data based on or derived from any of the foregoing. For the avoidance of doubt, User Data does not include any Individually Identifiable Health Information or any Customer practice management data, EDI, co-pay, credit card data, or any other data that is specific to Customer and its operations.
Services. Throughout the Term and at all times in connection with its performance under this Agreement, Company shall, in accordance with this Agreement and each applicable Service Order, provide to Customer and its Users the following services ("Services"): (a) the hosting, management and operation of the Service Software and other services for remote electronic access and use by the Customer and its Users as described in written service orders specifically referencing this Agreement (each, a "Service Order"); (b) the Support Services as set forth in Section 6 and in the Service Order; and (c) such other services as may be specified in the applicable Service Order.
Service Orders. Service Orders will be effective only when signed by Customer and Company. Any modifications or changes to the Services under any executed Service Order will be effective only if a written change order ("Change Order") is signed by both Parties, provided, however, that for any Services provided on a limited basis (for example, on a per user, server, CPU or named-user basis), Customer may, increase the number of its licenses, subject to a corresponding forward-going adjustment of the Fees in accordance with the pricing set forth in Exhibit A or otherwise in an applicable Service Order.
Subcontracting. Company may not subcontract any Services, in whole or in part, without Customer's prior written consent, such consent not to be unreasonably withheld; provided that Customer understands and agrees that NextGen and its Affiliates may be providing Services under this Agreement, as well as the Service Software, or portions thereof and Customer hereby approves the use of NextGen and its Affiliates, Company’s data center and hosting vendor, and independent contractors, for such Services, Service Software or portions thereof. Upon request by Customer, Company will provide Customer a list of independent contractors providing Services under this Agreement.
Company Personnel. Company shall appoint: (i) a Company employee to serve as a primary contact with respect to the Services for receiving and processing of Support Requests and the Support Services (the "Client Services Manager") (ii) a Company employee to respond to Customer's inquiries regarding the security of the Company Systems ("Company Security Officer").
Customer Personnel. Customer shall appoint a Customer employee to serve as a primary contact with respect to the Services for requesting and processing of Support Request and administration of Support Services (“Customer Service Manager”). The Customer Service Manager shall be actively involved in the day-to-day operation in connection with the Service Software for the Customer and have decision making authority on behalf of the Customer with regard to the Services, and have passed the NextGen certification test.
License Grant, Permitted Uses and Restrictions.
License Grant. Company hereby grants to Customer and its Affiliates, exercisable by and through their Users, subject to the Fees in Section 8 and any applicable schedule, a nonexclusive, royalty-free, limited, revocable, nontransferable and without the right to sublicense, right and license throughout the Territory during the Term, to: (a) access and use the Services and Service Software as specified in the Modules Description, Documentation, in operation with other software, hardware, systems, networks and services for Customer's internal business purposes, Permitted Uses in Section 3.2, including for Processing Customer Data; (b) prepare, reproduce, print, download and use a reasonable number of copies of the Documentation as may be necessary for any the Permitted Uses of the Services; (c) access and use the Services for purposes of analysis, configuration, integration, testing, training and creating reports based upon Customer Data; and (d) display, reproduce and distribute internally to Users any Company Materials, solely to the extent necessary to access or use the Services in accordance with the terms and conditions of this Agreement.
Permitted Uses. Customer shall be permitted to use the Services as stated herein and in the Service Order. Company, in its sole discretion, may deny any Person access to the Services and the Service Software, on written notice to Customer, If Company believes that a Person’s use of the Services and Service Software would violate any provision of this Agreement, Company shall provide Customer with written notice specifying the violation or potential violation. Following receipt of such notice, Customer shall cure the violations set forth in the notice to Company’s reasonable satisfaction.. Customer may appeal access denial in writing within 30 days to Company.
License Restrictions. Customer shall not: (a) rent, lend, lease, trade, encumber, pledge, collateralize sell, sublicense, assign, or otherwise make the Service Software, Services, and Company Materials, available to any third party, except as expressly permitted by this Agreement or in any Service Order; (b) use or authorize the use of the Services or Documentation in any manner or for any purpose that is unlawful under applicable Law, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Service Software, (d) alter, modify, create modifications or derivative works of or customize the Service Software, Services, any product or service, or any related Company Materials, or place thereon or modify any branding indicia.
Excess Use. If Customer's use of the Services exceeds the volume of use permitted by the licenses then in effect under Section 3 and the applicable Service Order (including as to the number of uses, users, machines or locations), Customer shall pay Company the Fees for the excess use starting from the date of the excess usage.
Compliance with Law. Company and Customer shall comply with all applicable laws. In furtherance of the foregoing, the parties agree any fees paid pursuant to this Agreement represent the fair market value for the services provided by Company, have been negotiated in an arms-length transaction, and have not been determined in a manner that takes into account the volume or value of any referrals or other business otherwise generated between Company, any other healthcare entity, and/or Customer. The parties to this Agreement specifically intend to comply with all applicable laws, rules and regulation, including (i) the federal Anti-Kickback Statute (“AKS”) (42 USC 1320a-7b) and (ii) the Limitation on Certain Company Referrals, also referred to as the “Stark Law” (42 USC section 1395(nn)). Nothing contained in this Agreement shall be construed in any manner as an obligation or inducement for either party to purchase or refer or to recommend that any person or entity purchase or refer, any party to another party (or any entity affiliated with such other party). To the extent that the Services include access to an electronic health record and if Company offers to Customer any subsidy or deviation from fair market value for such capabilities, then Exhibit A shall reflect any subsidy or deviation from fair market value, and any such deviation shall be in compliance with the AKS safe harbor(s) and Stark exception(s) applicable to such transaction. In the event either party reasonably determines that any provision of this Agreement may be inconsistent with law, the parties shall negotiate in good faith to modify such provision, and if unable to do so, may terminate this Agreement upon written notice to the other. Company and Customer acknowledge that other agreements and relationships may exist between them, and by this reference such agreements and relationships are incorporated into this Agreement solely for purposes of regulatory compliance. Except as specifically provided in this Agreement, the provisions of such incorporated agreements shall not be deemed or construed to amend or modify the provisions of this Agreement.
Service Preparation, Testing and Acceptance.
Service Preparation. Upon the parties' execution of a Service Order, Company shall make the Services procured thereunder ready and available for Customer's and its Affiliates’ use in accordance with the Service Order and this Agreement and; Customer shall take all Customer responsible steps specified in the Documentation and any Service Order necessary to use the Services and to interface with the Service Software, including setting up network access, assist with obtaining required hardware (at Customer’s expense) and any other actions required by Customer and Company.
Installation and Implementation. Both parties agree to reasonably cooperate to create a mutually acceptable implementation plan and Company agrees to implement the Service Software in accordance with such plan. Unless the mutually agreed to implementation plan states otherwise, Customer and/or User agrees to allow Company to install or provision the Service Software within 72 hours of the Effective Date. Customers understand that the hours and timelines set forth in any such implementation plan are estimates and may be subject to change. In the event there is a need for such change, Company, shall notify Customer of such need as soon as the need for a change in estimated hours and timellines appears likely, and Company and Customer shall work together in good faith to develop new estimates of hours and timelines for the implementation. Unless stated otherwise, neither party shall unreasonably delay installation and/or implementation of the Service Software. If required, prior to the arrival of Company's personnel to commence installation of the Software (or prior to telephoning by Company personnel if Software installation is to be accomplished via telephone), Customer shall have the Designated Location and all other things related to installation in readiness for installation in accordance with Company’s written instructions, including but not limited to any hardware or third-party software supplied by Customer, and internet connections. In the event Customer fails to: (i) have the Designated Location and all other things related to installation of the Software in readiness for installation in accordance with Company’s written instructions at the time installation is scheduled to be performed and have not notified Company, in writing, of such failure at least two (2) business days prior to the scheduled Software Installation date and/or (ii) cancel any scheduled training session more than three (3) weeks before its scheduled occurrence, then Customer shall reimburse Company for any direct expenses caused by such failure and/or cancellation.
Customer Hardware and Software. Specifications for hardware and software which are required by Company for use with the Software and Services are hereby set forth (which may be revised from time to time):
- Workstations/Hardware. Customer will purchase and provide the necessary computer workstations for NextGen and all third-party applications. Company is not responsible to provide workstations and hardware necessary to use the NextGen application. This includes but is not limited to computer desktops, laptops, tablets, scanners, printers, and electronic signature pads. All workstation hardware must meet the minimum requirements set forth by NextGen.
- Software. Customer will be responsible to purchase any third-party software that is not included in this agreement. Company is not responsible to provide third party software not described in this agreement. This includes but is not limited to word processing, email exchange services, spreadsheet software, and project management and presentation software.
Testing and Acceptance.
When Company notifies Customer that the Services are ready for use in a production environment, Customer shall have no more than ten (10) days (or such longer period as may be stated in the applicable Service Order and/or approved project plan) (“Acceptance Period”) from receipt of the notice to test the Services to determine whether they comply in all material respects with the requirements of this Agreement, the Documentation and the Module Descriptions.
At completion of the Acceptance Period, or upon completion of Customer’s Testing, Customer shall notify Company of its acceptance ("Accept" or "Acceptance") or, if it has identified any noncompliance with the Module Descriptions, this Agreement or the Documentation, rejection ("Reject" or "Rejection") of the Services. If Customer Rejects the Services, Customer shall provide a written list of items that must be corrected. On receipt of Customer's notice, Company shall commence, at no additional cost or charge to Customer, all reasonable efforts to complete, as quickly as possible and in any event within thirty (30) days (or such other period as may be agreed upon by the Parties in writing) from receipt of Customer's notice, such necessary corrections, repairs and modifications to the Services to bring them into full compliance with the Module Descriptions, this Agreement and the Documentation.
Availability Requirement. Company shall make the Services Available, as measured over the course of each calendar month during the Term and any additional periods during which Company does or is required to perform any Services (each such calendar month, a "Service Period"), at least ninety-nine and 90/100 percent (99.9%) of the time during the calendar month excluding only the time the Services are not Available solely as a result of one or more Exceptions (the "Availability Requirement"). "Available" means the Services are available and operable for access and use by Customer and its Users over the Internet in material conformity with the Module Descriptions. "Availability" has a correlative meaning. In any calendar month in which Company does not meet or exceed the Availability Requirement,
Exceptions. No period of Service degradation or inoperability will be included in calculating Availability to the extent that such downtime or degradation is due to any of the following ("Exceptions"): (a) Customer's misuse of the Services; (b) failures of Customer's or its Users' internet or other network connectivity, or hardware; (c) internet or other network traffic problems other than problems arising in or from networks controlled by Company, its hosting providers or other contractors or service providers; (d) Customer's or any of its Users' failure to meet any minimum hardware or software requirements set forth in the Module Descriptions; or (e) Scheduled Downtime as set forth in Section 5.3.
Scheduled Downtime. Company will reasonably notify Customer at least seventy-two (72) hours in advance of all scheduled outages of the Services in whole or in part ("Scheduled Downtime").
Support and Maintenance Services. Company shall provide Service maintenance and support services (collectively, "Support Services") in accordance with this Section 6 and any applicable Service Order.
Support Service Responsibilities. Company shall: (a) correct Service Issues in accordance with the Support Service Level Requirements; (b) provide 24/7 on call telephone support for Critical Service Issues, and during the hours of 8:30 a.m. to 5:30 p.m. All US time zones on Business Days for Medium Service Issues and Low Service Issues; (c) provide Customer with online access to technical support bulletins, and other user support information and forums, to the extent Company makes such resources, at no charge, available to its other customers; and (d) respond to and Resolve Support Requests as specified in this Section 6. Company may update and access the Service Software and related Modules of Customer at any time to the extent necessary to fulfill its obligations under this Agreement.
Service Monitoring and Management. Company shall monitor and manage the Services to optimize Availability that meets or exceeds the Availability Requirement. Such monitoring and management shall include: (a) monitoring on a twenty-four (24) hour by seven (7) day basis all Service functions, servers, firewall and other components of Service security; (b) if Company receives written notice from Customer pursuant to the procedures set forth herein or in the applicable Service Order: (i) confirming (or disconfirming) the outage by a direct check of the associated facility or facilities; and (ii) working the problems causing and caused by the outage until they are Resolved as Critical Service Issues in accordance with the Support Request Classification.
Service Maintenance. Company shall maintain the Services to optimize Availability that meets or exceeds the Availability Requirement. Such maintenance services shall include providing to Customer and its Users: (a) bug fixes to the Services; and (b) all such services and repairs as are required to maintain the Services so that the Services operate properly in accordance with this Agreement, the Documentation and the Module Descriptions.
Support Service Level Requirements. Company shall use commercially reasonable efforts to correct Service Issues and respond to and Resolve Support Requests in accordance with the required times and other terms and conditions in Support Service Level Requirements, this Agreement and the applicable Service Order. Where applicable, Customer shall assist Company in resolving Service Issues.
Support Requests. Customer shall make its requests for Service Issue corrections in accordance with the descriptions in the chart below (each a "Support Request"), and Customer and Company will discuss the appropriate Service Issue classification. The Customer Service Manager shall notify Company of Support Requests by e-mail, telephone or such other means as the parties agree to in writing.
Description: Any Service Issue
Comprising or Causing any of the
Following Events or Effects:
Issue affecting entire system or single
critical production function;
- Data integrity at risk; or
- Widespread access interruptions.
Service is operating with minor issues
that can be addressed with a work around.
Request for assistance, information, or
services that are routine in nature.
Response and Resolution Time Service Levels. Response and Resolution times will be measured from the time Company receives a written Support Request until the respective times Company has (i) responded to, in the case of response time and (ii) Resolved such Support Request, in the case of Resolution time. "Resolve" (including "Resolved", "Resolution" and correlative capitalized terms) means that, as to any Service Issue, Company has provided Customer the corresponding Service Issue correction and Customer has confirmed such correction and its acceptance thereof. Company shall respond to and Resolve Service Issues within the following times based on the severity of the Service Issue:
SLA Resolution Time Critical
Two (2) Business
One (1) Business Day unless agreed
on by both parties for an extended
One (1) Business
Commercially reasonable period not to
exceed ten (10 Days) unless agreed by
both parties for an extended resolution
Two (2) Business
Commercially reasonable period not to
exceed 15 (15Days) unless agreed by
both parties for an extended resolution
Escalation. With respect to any Critical Service Issue Support Request, until such Support Request is Resolved, Company shall escalate that Support Request within two (2) Business Hours of the receipt of such Support Request by the appropriate Company support personnel identified to Customer in writing.
Term and Termination.
Term. The initial term of this Agreement commences as of the Effective Date and will continue for one (1) year unless and until terminated as provided under this Agreement (the "Initial Term").
Renewal. Unless this Agreement is terminated earlier pursuant to its provisions, this Agreement shall automatically renew for additional one (1) year period (each a "Renewal Term"), unless a party provides written notice to the other party of its intent not to renew sixty (60) days prior to the end the then pending term (the Initial Term together with any Renewal Terms, collectively, the "Term").
Cancellation/Termination. Either party may terminate this Agreement and/or any Service Order at any time upon one hundred and twenty (120) days prior written notice. The Fees for any Renewal Term shall be at Company’s then current standard rates, unless otherwise agreed to by the parties in writing at least sixty (60) days prior to the end of the then current term, but such fees shall not be more than three percent (3%) higher than the fees in effect immediately prior to the start of the Renewal Term. In the event a party terminates this Agreement in accordance with this Section, within fifteen (15) days of the termination date Company shall refund to Customer any charges paid by Customer in advance for Service periods after the termination date
Termination for Cause. In addition to any right of termination set forth elsewhere in this Agreement:
- Either party may terminate this Agreement or any Service Order, by written notice to the other party effective as of the date specified in such notice, if the other party materially breaches this Agreement or such Service Order and such breach: (i) cannot be cured; or (ii) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof; and Company may, by written notice to Customer, terminate this Agreement if Customer fails to pay any undisputed amount due Company within fifteen (15) days after Company gives Customer notice of delinquency;
- Each party may terminate any and all of this Agreement or any Service Order, effective immediately, by written notice to the other party if the other party: (i) admits in writing its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) Business Days or is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; (v) has or is made subject to the appointment of a receiver, trustee, custodian or similar agent by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (vi) undergoes a unapproved change of control, or (vii) another agreement between Customer and Company is terminated.
Effect of Termination; Data Retention. Unless otherwise agreed by the Parties, the expiration or termination of this Agreement will not terminate any Service Order then in effect and not otherwise terminated, and the terms and conditions of this Agreement will continue with respect to any such Service Order until its expiration or termination. In addition, unless otherwise expressly provided in this Agreement or the applicable Service Order:
- Upon and after the termination or expiration of this Agreement or one or more Service Orders in accordance with this Agreement:
- Subject to the continuing rights, licenses and obligations of either party under this Agreement or any Service Order, all licenses granted hereunder will immediately terminate and the respective parties shall cease all use of, in the case of Customer, the expired or terminated Services and related Company Materials, and, in the case of Company, the Customer Data;
- Customer shall pay to Company all undisputed charges and amounts due and payable to Company, if any, for Services performed prior to the termination or expiration of any applicable Service Order or Service Orders;
- Company will, as part of the fees set forth in the applicable Service Order, keep a full data backup of Customer Data (with view only/single user access); however, Company shall, at Customer's option and upon its written request: (A) within one-hundred eighty (180) days of termination return in a commercially or destroy and erase from all systems it directly or indirectly uses or controls, all originals and copies of Customer's Confidential Information, and (B) provide a written statement to Customer certifying that it has complied with the requirements of this Section.
- Without limiting the generality of this Section, upon the termination or expiration of this Agreement and all Service Orders hereunder, the Receiving Party shall, at the Disclosing Party's written request: (i) promptly return or destroy and erase from all systems it directly or indirectly uses or controls, all originals and copies of all documents and materials in any form or medium that contain, reflect, incorporate or are based on the Disclosing Party's Confidential Information and; and (ii) provide a written statement to the Disclosing Party certifying that it has complied with the requirements of this Section.
- Notwithstanding any provisions of this Agreement or any Service Order to the contrary:
- The Receiving Party shall not be required to, or, in the case of Company, to cause its Subcontractors hereunder, to return, destroy or erase any Disclosing Party Confidential Information to the extent that any applicable Law prevents it from doing so, in which case the Receiving Party shall retain, in its then current state, all such Confidential Information then within its right of control or possession in accordance with the confidentiality, security and other requirements of this Agreement and perform its obligations under this Section as soon as such Law no longer prevents it from doing so; and
- Upon Customer's termination of this Agreement or any Service Order for breach pursuant to this Section, Customer shall have the right and option to continue to access and use the Services under each applicable Service Order for a period not to exceed thirty (30) days from the effective date of such termination pursuant to the terms and conditions of this Agreement and each applicable Service Order hereunder and for the applicable Fees set forth in each such Service Order.
Survival. The rights, obligations and conditions set forth in this Section and the Definitions set forth in the Agreeement, Effect of Termination; Data Retention), Ownership, Confidentiality,
Individually Identifiable Health Information. Indemnification, Limitations of Liability General Provisions and any right, obligation or condition that, by its express terms or nature and context is intended to survive the termination or expiration of this Agreement, shall survive any such termination or expiration.
Fees and Expenses.
Fees. Subject to the terms and conditions of this Agreement and the applicable Service Order, including the provisions of this Section, Customer shall pay the agreed fees in the applicable Service Order, which shall be determined and invoiced by Company in accordance with the rates, pricing and discounts set forth in the Service Order.
Reimbursable Expenses. Customer shall reimburse Company for direct, documented, out-of-pocket expenses ("Reimbursable Expenses") incurred by Company in performing the Services, as agreed in the Service Order.
Taxes. All Fees and amounts set forth this Agreement or any Service Order are exclusive of taxes. Customer shall be solely responsible for all sales, service, value-added, use, and any other taxes, charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer to Company other than any taxes imposed on, or with respect to, Company's income, which taxes are set forth on the applicable invoice.
Invoices. Company shall invoice Customer for all Fees and Reimbursable Expenses monthly in arrears in electronic format, via such delivery means and to such address as are set forth in the applicable Service Order or otherwise specified by Customer in writing from time to time. If more than one Service Order is in effect, Company shall provide an aggregate invoice for all amounts invoiced, together with separate invoices for each Service Order. Customer shall notify Company of any disputes with any invoices within thirty (30) days of receipt, and all invoices will be deemed accepted after thirty (30) days of receipt by Customer with the exception of the respective invoice(s) in dispute as defined above. The parties shall use their best efforts to resolve the dispute within ten (10) days following Customer’s notification.
Payment Terms. Customer shall pay all undisputed amounts due hereunder within fifteen (15) days after Customer's receipt of Company's invoice therefor. Failure to pay any undisputed amounts due as provided in this Agreement shall be a material breach. All payments hereunder shall be in US dollars and made, at Company's option, by check, ACH payment, debit/credit card or wire transfer. Payments shall be made to the address or account specified in this Agreement or such other address or account as is specified by Company in writing from time to time, provided that Company shall give Customer at least thirty (30) days' prior notice of any account, address or other change in payment instructions.
Delinquent Payment Fees, Collection Costs. If Customer fails to pay any undisputed Fees within fifteen (15) days of the invoice date then the delinquent amount will accrue interest at the rate of 1.0% per month until the unpaid Fees and interest is paid. Customer shall be responsible for any attorney fees and legal costs incurred in collecting the delinquent Fees and interest.
Ownership of Customer Data. Customer may provide Customer Data to Company in connection with this Agreement. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject only to the limited license granted per this Agreement.
Limited License to Use Customer Data. Subject to the terms and conditions of this Agreement, Customer and each of its Affiliates licensed hereunder hereby grants Company a limited, royalty-free, fully-paid up, non- exclusive, transferable and sublicensable license to Process the Customer Data in the United States strictly as instructed by Customer or an User and solely as necessary to provide the Services for Customer's and such Affiliates' benefit as provided in this Agreement for so long as Customer or any User uploads or stores such Customer Data for Processing by or on behalf of the Company on the Company Systems. In addition, Customer and each of its Affiliates hereby grants to Company, an unlimited royalty-free, perpetual, irrevocable license to the User Data in aggregate that has been deidentified with no Individually Identifiable Health Information (“Deidentified Data”) to use, analyze, combine with third party customer data and otherwise use the Deidentified Data in the internal business of Company.
Ownership of Company Materials and User Data. As between Customer and Company, Company is and will remain the sole and exclusive owner of all right, title and interest in and to the Company Materials and User Data, including all Intellectual Property Rights relating thereto, subject only to the license granted to Customer in this Agreement. For the avoidance of doubt, Customer hereby agrees that any modification to the Service Software (including improvements and derivative works) (“Customer Created Materials”) are owned by Company and Customer hereby assigns all interest, right and title in and to such Customer Created Materials, including all Intellectual Property Rights. If Customer engages any third party to create any such Customer Created Materials, Customer shall obtain an agreement with such third party assigning all rights to Customer and providing that such Customer Created Materials are “works made for hire”, and such Customer Created Materials shall be assigned to Company consistent with this Section. All rights, title and interest in and to each and every modification or derivative work of the Software, Services, Company Materials or any associated user materials, training materials or promotional materials that Customer creates or cause to be created, including but not limited to any and all printed or electronic documents, materials, products, deliverables and information, including but not limited to, reports, designs, programs, functionality, test, testing, methodologies, scripts, test cases, templates, specifications, documentation, manuals, visual aids, software programs, promotional or marketing materials and any other materials (collectively “Works”) shall, in each case, vest in Company and shall be deemed to a “work made for hire”. To the extent that any title to any Work may not by operation of law vest in the Company or any such Work may be considered a “work made for hire”, Customer and Users hereby agree to assign, and do hereby irrevocable assign , all rights, title and interest therein to Company. All such Works shall belong solely and exclusively to Company (to which Company may assign to their providers) having the right to obtain and hold in its own name, copyrights, trademarks, patents, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Customer and User agree to give Company and any person or entity designated by Company, reasonable assistance as required to perfect rights, title and interest in and to each and every such Work. In addition Customer and User agrees to not claim advertise, promote your services or otherwise represent, directly or by implication, in any form or at any time that Customer is the “author”, inventor or owner of any such Work.
No Implied Rights. Except for the limited license expressly provided in this Agreement, nothing contained in this Agreement shall be construed as granting Customer or any third party any right, title, or interest in or to any Company Materials, whether by implication, estoppel or otherwise.
User IDS and Passwords. Each User is responsible for maintaining the confidentiality of any password and username needed to access the Services and the Service Software, and for restricting access to the hardware used to access the Services and the Service Software, and are responsible for all activities and access that occurs under such User’s password or username. If a User or a Customer suspects that any unauthorized party may be using a password or account of a User, or suspects any other breach of security, Customer will immediately contact Company. Usernames and passwords are the property of Company, and Company may change the username and password in its discretion. An employee, contractor, agent or any other Person associated with Customer, including Users, shall not use anyone else’s username, password, or account at any time without the express permission or Company. Company cannot and will not be liable for any loss or damage arising from failure to comply with these obligations, under this Section and any breach of this Section shall be considered a material breach of this Agreement.
If Customer or User is in breach, Company may in its reasonable discretion IMMEDIATELY suspend access to such User, group of Users, and/or Customer and all its Users. If it is determined there is a breach , Company shall provide written notice to Customer specifying the breach. Following receipt of such notice, Customer shall cure the breach within five (5) days of receipt of such notice to Company’s reasonable satisfaction.
Confidential Information. "Confidential Information" means any information that is marked as "confidential" or "proprietary" by the disclosing party ("Disclosing Party"), or is information that a Person would reasonably conclude is confidential. Confidential Information includes trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing, regardless of whether such information was intentionally or unintentionally disclosed by the Disclosing Party or otherwise obtained (including by visual inspection) by the other party or any of its Representatives ("Receiving Party"). All derivative works of any Confidential Information, in whole or in part, and prepared by any Person, shall themselves constitute the Confidential Information of the Disclosing Party on whose Confidential Information they are based. Without limiting the foregoing, (a) all Customer Data (including, for purposes of this Section, all Individually Identifiable Health Information is and will remain the Confidential Information of Customer and (b) the Service Software, Module Descriptions, user manuals, Service Software interface and screen shots, and Documentation are and will remain the Confidential Information of Company. For the avoidance of doubt, “Confidential Information” shall be deemed to include any information that meets the definition of Protected Health Information under HIPPA.
Exclusions. Confidential Information does not include any information or material that the Receiving Party can demonstrate by documentary records: (a) is or becomes generally known other than through a breach of this Agreement or another confidentiality or non-disclosure agreement, obligation or duty, or other wrongful act, of or on behalf of the Receiving Party or any of its Representatives; (b) was already rightfully known to the Receiving Party, without restriction on use or disclosure, prior to being directly or indirectly disclosed by or on behalf of the Disclosing Party, or obtained by or on behalf of the Receiving Party; (c) has been or hereafter is rightfully received by or on behalf of the Receiving Party from a third party without restriction on use or disclosure and without breach of any agreement or obligation or duty of confidentiality to the Disclosing Party or any other Person; or (d) was or is independently developed by the Receiving Party without access or reference to or use of any Confidential Information of the Disclosing Party.
Confidentiality and Use. Each Receiving Party recognizes and agrees that the Confidential Information of the Disclosing Party is critical to the Disclosing Party's business and that neither party would enter into this Agreement without assurance that such information and its value will be protected as provided in this Agreement. The Receiving Party shall use, and ensure that its Representatives use, reasonable care that is at least as protective as the efforts it uses with respect to its own confidential information to safeguard the Disclosing Party's Confidential Information from use or disclosure other than as permitted under this Agreement. Without limiting the foregoing, the Receiving Party shall maintain in effect and enforce rules and policies to protect against access to or use or disclosure of Confidential Information other than in accordance with this Agreement. As a condition to being provided with such Confidential Information, the Receiving Party agrees that it will: Customer understands and agrees that Company has no control over third party software and as such Company is unable to warrant the confidentiality of Confidential Information communicated to Company using third party software and networks.
- Not use or permit the use of the Disclosing Party's Confidential Information other than as necessary to exercise its rights or perform its obligations under this Agreement;
- Maintain the Disclosing Party's Confidential Information in strict confidence, not disclose or make available the Disclosing Party's Confidential Information to any Person without the Disclosing Party's prior written consent, provided, however, that the Receiving Party may disclose the Confidential Information to its Representatives who: (i) have a "need to know" for purposes of this Agreement; (ii) have been informed in writing of the confidential nature of the Confidential Information and the limitations, procedures and obligations that apply to Confidential Information under this Section; and (iii) are themselves bound by written nondisclosure agreements, provided, further, that the Receiving Party shall be responsible for ensuring its Representatives' compliance with, and shall be liable for any breach by its Representatives, of this Section.
Compelled Disclosures. If the Receiving Party becomes compelled by applicable Law to disclose any Confidential Information, the Receiving Party shall, to the extent permissible by applicable Law:
- Prior to disclosing Confidential Information pursuant thereto, notify the Disclosing Party in writing of such required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights under this Section;
- At the Disclosing Party's expense, use reasonable efforts not to release such Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest such compelled disclosure or any further disclosure or use of Confidential Information that may result therefrom;
- Cooperate with and provide assistance to the Disclosing Party in connection with any measures taken by the Disclosing Party as described in the Agreement and, if a protective order or other remedy is not obtained or the Disclosing Party waives compliance with this Section, use reasonable efforts, at the Disclosing Party's expense, to obtain assurance that the Confidential Information will be accorded confidential treatment; and disclose only the portion of Confidential Information that it is legally required to produce to the minimum extent required by applicable Law.
- No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party's obligations hereunder with respect to the Confidential Information so disclosed.
Return or Destruction of Confidential Information. Within thirty (30) days after Disclosing Party’s written request at any time and subject to any contrary obligations under applicable Law, the Receiving Party shall at the Disclosing Party’s direction return or destroy and erase from all systems it directly or indirectly uses or controls (a) all originals and copies of all documents and materials in any form or medium that contain, reflect, incorporate or are based on the Confidential Information, in whole or in part, or (b) solely such specific data, databases or other collections or articles of Confidential Information as the Disclosing party may request, and provide a written statement to Disclosing Party certifying that it has complied with the requirements of this Section.
Individually Identifiable Health Information.
Definition and Permitted Use.
For purposes of this Agreement, "Individually Identifiable Health Information" means any information that the Customer provides or the Company Personnel collects, receives or obtains, from or on behalf of Customer or its Users that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual's name, address, social security number, etc., and any other information relating to an identified or identifiable individual. Individually Identifiable Health Information includes such information of or pertaining to Customer's personnel, directors, officers, agents, suppliers, contractors, investors or customers and all "nonpublic Individually Identifiable Health Information," as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), and "protected health information" as defined under the Health and Insurance Portability and Accountability Act of 1996.
Company shall not cause or permit any Individually Identifiable Health Information to be processed in any manner or for any purpose other than the performance of the Services in compliance with the restrictions set forth in this Agreement and all applicable Laws.
Ownership and Treatment of Individually Identifiable Health Information. As between Customer and Company, Customer is and shall remain the sole and exclusive owner of all right, title and interest in and to Individually Identifiable Health Information. Company shall promptly notify Customer in writing when Company becomes aware of any unauthorized access, use or other act respecting Individually Identifiable Health Information as described in the Business Association Agreement.
Data Backup, Data Security and Disaster Recovery. Company shall maintain or cause to be maintained disaster avoidance procedures designed to safeguard the Customer Data and Customer's other Confidential Information, Company's Processing capability and the availability of the Services, in each case throughout the Term and at all times in connection with its actual or required performance of the Services hereunder.
Data Backup. Company shall conduct or have conducted daily backups of Customer Data and store such backup Customer Data in a commercially reasonable location and manner within the United States. On written notice from Customer, Company shall provide Customer with a copy of the backed-up Customer Data in such machine readable format that Company is using.
Company and its subcontractors, providers, and hosting facilities shall maintain security procedures in accordance with industry standards designed to: (a) ensure the security and integrity of any information supplied by Customer; (b) protect against threats or hazards to the security or integrity of such information; and (c) prevent unauthorized access to such information. If Company or its subcontractors, providers or hosting facilities believe there has been a breach of its security and/or disclosure of any such information to any third-party, Company shall immediately notify Customer and provide notice to the individuals and government authorities as required by applicable laws and bear all costs of remediation and mitigation required related to the breach. In the event of a security breach, Company shall conduct an investigation of the breach, use best efforts and take necessary actions to prevent, contain and mitigate the impact of the breach, and promptly provide notice to Customer and Customer’s employees, customers, or third-parties (if they have been affected) following discovery of the breach.
Disaster Recovery/Business Continuity. Throughout the Term and at all times in connection with its actual or required performance of the Services hereunder, Company shall maintain a Business Continuity and Disaster Recovery Plan for the Services (the "Plan"), and implement such Plan in the event of any unplanned interruption of the Services. Company shall review, and update the Plan using commercially reasonable industry practices as guidance. All updates to the Plan shall be subject to the requirements of this Section13.2.
General Indemnification. Each party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other party and each of the other party's Affiliates, and each of the foregoing Persons' respective officers, directors, employees, agents, contractors, successors and assigns, (each of the foregoing Persons, an "Indemnitee") from and against all Losses arising out of or resulting from any third party claim, suit, action or proceeding (each, an "Action") to the extent that such Action does result from:
- The Indemnifying Party's breach of this Agreement; or
- Negligence or willful misconduct in connection with the performance or nonperformance of any Services or other activity to be performed by or on behalf of, the Indemnifying Party under this Agreement, in the case of each of clause (a) and clause (b), except to the extent, if any, that a final judgment or other final determination in such Action from which no appeal is permitted or taken determines that such Losses were caused by the Indemnities’ gross negligence or willful misconduct, or material breach of this Agreement and provided that, to the extent that any Action or Losses described in this Section 14.1 results from a claim that any of the Services does or infringe, misappropriate or otherwise violate any Intellectual Property Rights of a third party, Company's obligations with respect to such Action and Losses, if any, shall be subject to the terms and conditions of Section 14.2(a) through Section 14.2(e) and Section 14.3; or
- The Indemnifying Party’s failure to comply with all applicable laws.
Infringement Indemnification by Company. Company shall indemnify, defend and hold Customer Indemnities, harmless from all Losses arising out from any Action to the extent that such Action does result from a claim that any of the Services, or Customer's or any User's use thereof, does infringe, misappropriate or otherwise violate any Intellectual Property Right or other right of a third party, in the Territory, provided however, that Company shall have no liability or obligation to the extent that the Action or Loss arises out of or results from any:
- Alteration or modification of the Services or Service Software by or on behalf of Customer or any User, without Company's written authorization (each, a "Customer Modification"), provided that no infringement misappropriation or other violation of third party rights would have occurred without such Customer Modification and provided further that any alteration or modification made by or for Company at Customer's request shall not be excluded from Company's indemnification obligations hereunder unless the Services, as altered or modified in accordance with the Customer's specifications, would not have violated such third party rights but for the manner in which the alteration or modification was implemented by or for Company;
- Use of the Services by Customer or an User pursuant to this Agreement in combination with any apparatus, hardware, software or service not provided or approved by or on behalf of Company, if no violation of third party rights would have occurred without such combination;
- Access to or use of the Services that are expressly prohibited by this Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement or the applicable Service Order;
- Material breach of this Agreement by Customer or material noncompliance herewith by any User; or
- Violation of any applicable law by Customer or any of its Users.
If Company receives any written notice alleging that the Services violates a third party's rights, Company shall notify Customer of such fact in writing, and take all commercially reasonable actions necessary to ensure Customer's continued right to access and use such Services.
Subject to the exclusions set forth in clauses in the Agreement, if any of the Services or any component or feature thereof is ruled to infringe or otherwise violate the rights of any third party by any court of competent jurisdiction, Company shall, at Company's sole cost and expense: (i) procure for Customer the right to continue to access and use the Services to the full extent contemplated by this Agreement and the Module Descriptions; or (ii) modify or replace all components, features and operations of the Services that infringe (" Infringing Features") to make the Services non-infringing while providing substantially equal functionality, which modified and replacement services shall constitute Services and be subject to the terms and conditions of this Agreement.
If neither of the remedies set forth in the Agreement is reasonably available with respect to the Infringing Features then Company may direct Customer to cease any use of any materials that have been enjoined or finally adjudicated as infringing, provided that Company shall refund to Customer any prepaid Fees, pro rata for the remainder of the Term, for Services that have not been provided.
Indemnification by Customer. Customer shall indemnify, defend and hold Company and its Affiliates and each of Company's and its Affiliates' respective officers, directors, employees, agents, successors and assigns (each, a "Company Indemnitee") harmless from and against all Losses incurred by any of them arising out of or resulting from any Action that results from:
- Any claim that any Customer Data is unlawful, infringes or otherwise violates any Intellectual Property Rights or other rights of any third party, provided however, (1) that Customer shall have no liability or obligation with respect to any Action or Loss to the extent that such Action or Loss arises out of or results due to the gross negligence or willful misconduct of Company or from any unauthorized access to or use, disclosure or other Processing of Customer Data, including Individually Identifiable Health Information, by or on behalf of Company, or through or enabled by the Company Systems, whether authorized by Company, due to a security breach, and (2) Section 14.4(a)(1) shall not apply to any negligence of Customer or any User, including failure to secure usernames or passwords; or
- Any use of the Services or Service Software by Customer or any User that is beyond the scope of the Agreement or any authorization given by Company to Customer or such User.
Indemnification Procedure. The party seeking indemnification shall promptly notify the Indemnifying Party in writing of any Action for which it seeks indemnification pursuant to this Section and cooperate with the Indemnifying Party at the Indemnifying Party's sole cost and expense. The Indemnifying Party shall immediately take control of the defense of such Action. The Indemnifying Party shall not settle any Action on any terms that adversely affects the rights of any Indemnitee without the other party's prior written consent, which shall not be unreasonably withheld or delayed. Any Indemnitee may participate in the proceedings at its own cost and expense with counsel of its own choosing. A party's failure to perform any obligations under this Section will not relieve the Indemnifying Party of its obligations under Section 14 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.
Limitations of Liability.
EXCLUSION OF INDIRECT DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 15.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY CLAIMS ASSERTING OR BASED ON THE USE, INABILITY TO USE, LOSS, INTERRUPTION OR DELAY OF THE SERVICES, LOSS OF USE OF FACILITY OR EQUIPMENTLOST BUSINESS, REVENUES OR PROFITS, LOSS OF GOODWILL, FAILURE TO ACHIEVE COST SAVINGS, FAILURE OR INCREASED COST OF OPERATIONS, LOSS, DAMAGE OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SERVICE FAILURE, MALFUNCTION, DOWNTIME, SHUTDOWN, SERVICE INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION OR BREACHES IN SYSTEM SECURITY,OR (B) FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, IN THE CASE OF EACH OF CLAUSE (A) AND CLAUSE (B), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 15.3, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED ONE AND A HALFTIMES THE AGGREGATE FEES AND REIMBURSABLE EXPENSES UNDER THIS AGREEMENT (INCLUDING AMOUNTS ALREADY PAID AND AMOUNTS THAT HAVE ACCRUED BUT NOT YET BEEN PAID) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Exceptions. The exclusions and limitations in shall not apply to:
- Losses arising out of or relating to a party's failure to comply with its obligations under Sections: Ownership, Confidentiality, Individually Identifiable Health Information), Data Backup, Data Security and Disaster Recovery or a party's indemnification obligations under Indemnification;
- Losses arising out of or relating to a party's gross negligence or any willful misconduct or intentional wrongful acts;
- Losses arising from or relating to the Customer’s or its User’s unauthorized use of the Services, including use of the Services beyond the scope of rights granted in this Agreement; or
- Losses arising from or relating to a party's violation of Law.
- Losses of Company due to Customer’s failing to pay any undisputed Fees incurred hereunder.
Representations and Warranties.
Mutual Representations and Warranties. Each party represents and warrants to the other party that it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering.
Additional Company Warranties. Company represents, warrants and covenants to Customer that:
- The Service Software and Services will not contain any defects and shall function properly in all material respects and conform to and perform in accordance with the Module Descriptions, the Documentation and all requirements of this Agreement;
- The Company Systems and Services are and Company will make commercially reasonable efforts to ensure the Company Systems and Services (including the Service Software) remain free of Harmful Code; and
- It will perform all Services in a timely, professional and workmanlike manner with a level of care, skill, practice and judgment consistent with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience and qualifications, and will devote adequate resources to meet Company's obligations under this Agreement;
- That Company has the right to sublicense the NextGen Software and to license the Service Software, including any Company software to Customer, and otherwise provide Customer with full access to and use the Service Software;
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF.
Force Majeure Events. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term hereof, when and to the extent such failure or delay is caused by: acts of God, flood, fire or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, any passage of law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority national or regional shortage of adequate power or telecommunications or transportation facilities (each of the foregoing, a "Force Majeure Event"), in each case provided that: (a) such event is outside the reasonable control of the affected party; (b) the affected party gives prompt written notice to the other party, stating the period of time the occurrence is expected to continue; (c) the affected party uses diligent efforts to end the effects of such Force Majeure Event.
Further Assurances. Each party shall, upon the reasonable request, and at the other party’s expense, promptly execute documents and perform acts necessary to give full effect to the terms of this Agreement.
Relationship of the Parties. The parties will act as independent contractors, and this Agreement does not constitute either party as the agent or partner of the other party.
Public Announcements. Company may not use the Customer’s name and logo on the Company’s website and marketing materials or list Customer’s name in press releases to represent the Customer is a customer of Company without Customer’s prior written consent.
Notices. All legal notices, pursuant to this Agreement shall be in writing and addressed to the parties in accordance with this Agreement.
Notices sent in accordance with this Section 18.4 shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) or (d) upon receipt, if by certified or registered mail, return receipt requested, postage prepaid. Routine business communications may be sent by email.
Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Entire Agreement. This Agreement, including all Service Orders and other Schedules and Exhibits, constitutes the entire agreement of the parties to this Agreement with respect to its subject matter, and supersedes all prior and contemporaneous agreements, both written and oral. In the event of any conflict between the terms of this Agreement and those of any Service Order, Schedule, Exhibit or other document, the Service Order shall have precedence followed by the Exhibits and Schedules to this Agreement as of the Effective Date. Except as expressly identified in Section 18.6 or a Service Order, no browse-wrap, shrink-wrap, click-wrap or other non-negotiated terms and conditions provided with any of the Services, Documentation or other Company Materials hereunder will constitute a part or amendment of this Agreement or is binding on Customer or any User for any purpose.
Neither party shall assign, or delegate obligations, under this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld; provided that a party may assign or otherwise transfer this Agreement in its entirety:
to any of its Affiliates, provided that all such rights, obligations and performance hereunder shall revert to the original party automatically and immediately if such affiliated entity ceases to be an Affiliate of such party, and provided further that each party shall remain responsible for all acts and omissions of its Affiliate in the performance of this Agreement; or
in connection with any merger, consolidation or reorganization, or a sale of all or substantially all of its business or assets relating to this Agreement to an unaffiliated third party of good financial standing, so long as such third party is not a competitor of the non-assigning party.
Any purported assignment, delegation or transfer in violation of this Section 18.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns and nothing herein, express or implied, is intended to confer on any other Person any legal or equitable right.
Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by an authorized officer of the party charged with such waiver, and any such waiver shall be strictly limited to the terms of such writing. No failure or delay in exercising, any right under this Agreement shall operate or be construed as a waiver.
Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. If a provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.
Governing Law; Submission to Jurisdiction.
This Agreement and all related documents, and all matters arising out of this Agreement, are governed by the laws of the State of Arizona, United States of America without regard to the conflict of laws and provisions to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. The Uniform Computer Information Transactions Act does not have any application to this Agreement.
Any legal action arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in the City of Phoenix and County of Maricopa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action.
Waiver of Jury Trial. Each party waives any right it may have to a trial by jury in respect of any legal action arising out of to this Agreement.
Equitable Relief. Each party to this Agreement agrees that (a) a breach or threatened breach by such party of any of its obligations under this Agreement/Section 5 (Service Availability), Section 6 (Support and Maintenance Services), Section 9 (Ownership), Section 10 (Confidentiality), Section 11 (Individually Identifiable Health Information), or Section 13 (Data Backup and Disaster Recovery) would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one agreement and will become binding upon the parties as of the Effective Date when all the signatories have signed a counterpart of this Agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Non-Solicitation. For a period of six (6) months from the expiration or termination of this Agreement and any applicable Service Orders, Customer and Company agree to not directly solicit the employment of any personnel or agent of the other party who has been directly involved with the delivery of Services under this Agreement or any Service Order. Direct solicitation will not include general solicitations by the parties that are not directed at particular individuals. If this Section 18.15 is breached, the breaching party shall pay to the other party as liquidated damages, an amount equal to two (2) times the annualized salary based on the average monthly salary received by such individual during the last six (6) months in which such individual was employed by the non-breaching party.
Succession and Assignment. This agreement will be binding on, and will inure to the benefit of, the Parties and their respective successors and assigns. Any attempt to assign or transfer such rights in contravention of the foregoing shall be ineffective and may constitute a material breach of this Agreement.
Additional Provision. Company represents and warrants to Customer, and Customer represents and warrants to Company, that neither party nor their respective employees or agents have been placed on the sanctions list issued by the office of Inspector General of the Department of Health and Human Services pursuant to the provisions of 42 U.S.C § 1320a(7), have been excluded from government contracts by the General Services Administration or have been convicted of a felony or any crime relating to healthcare. Company and Customer will provide one another immediate written notice of any such placement on the sanctions list, exclusion or conviction.
Software activated 72 hours after order confirmation is received and initial payment (first month and 50% of initial setup fee) is received by Company.