LAST UPDATED: February 7, 2022
1. DEFINITIONS. Capitalized terms not otherwise defined in the Agreement shall have the meanings below:
1.1. “Aggregated Statistics” means data and information related to any Services provided to Customer that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.2. “Agreement” means the Order Form(s) between Provider and a Customer for the use of any Services, and is inclusive of these Terms.
1.3. “Anonymized Data” means any aggregate information, analysis, rule, projection, statistic or similar summary or conclusion that Provider has obtained through processing or analysis of any Customer Data or PHI (but excluding the original PHI); provided that Anonymized Data shall be rendered anonymous in such a way that the data subject is no longer identifiable.
1.4. “Authorized Device” means each device of Customer’s patients that accesses or uses or is monitored by any Services under the rights granted to Customer pursuant to the Agreement. Supported Authorized Devices may be set forth from time to time in the Documentation.
1.5. “Customer Data” means (other than Aggregated Statistics, Anonymized Data, and De-identified Data) information, data, and other content, in any form or medium, including without limitation electronic medical records, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized Device through any Service.
1.6. “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Software provided by Provider to Customer either electronically or in hard copy form.
1.7. “Physiological Data” may include blood pressure, weight, pulse ox, heart rate, and any other data collected by an Authorized Device as supported by any Service from time to time, as set forth in the Documentation from time to time. Physiological Data collected by particular models of Authorized Devices may vary and may change from time to time.
1.8. “Protected Health Information” or “PHI” shall have the meaning set forth in HIPAA. All references herein to PHI shall be construed to include electronic PHI, or ePHI, as that term is defined by HIPAA.
1.9. “Provider IP” means the Software, the Documentation, and any and all intellectual property provided to Customer in connection with the foregoing or any other Service. For the avoidance of doubt, Provider IP includes Aggregated Statistics, Anonymized Data, and De-identified Data, and any information, data, or other content derived from Provider’s provision or Customer’s use of any Service, including without limitation the monitoring of Customer’s or Authorized Devices’ access to or use of the Software, but does not include Customer Data.
1.10. “Service” means any of the following or any combination thereof as may be set forth in the applicable Order Form: the Software; any services with respect to the integration of the Software with Customer’s systems including without limitation Customer’s EHR (“Integration Services”); monitoring services; or any other services that may be provided by Provider to Customer.
1.11. “Software” means Provider’s software currently known as Rhythm360 which interacts with Authorized Devices. The Software may be available in one or more modules, as follows:
1.11.1. The PM (Pacemaker Monitoring) module records data from implantable cardiac devices.
1.11.2. The RPM (Remote Physiological Monitoring) module records Physiological Data from off-the-shelf third-party wearable devices.
1.12. “Third-Party Products” means any third-party products, including Authorized Devices and any third-party products provided with or incorporated into any Service.
2. SOFTWARE LICENSE.
2.1. Provision of Access. Subject to and conditioned on Customer’s payment of fees and compliance with all other terms and conditions of the Agreement, if the applicable Order Form specifies that Provider licenses the Software to Customer, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15.12) right and license to access and use the Software during the Term, solely for use by Customer’s authorized personnel in accordance with the terms and conditions herein. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Software. Customer shall be entitled to create accounts for its Authorized Devices.
2.2. Documentation License. Subject to the terms and conditions contained in the Agreement, if the applicable Order Form specifies that Provider licenses the Documentation to Customer, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 15.12) right and license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Software as permitted under this Agreement. The licenses granted under Sections 2.1 and 2.2 are referred to herein collectively as the “License.”
2.3. Changes to Software. Provider reserves the right, in its sole discretion, to make any changes to the Software that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s Software or services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Software’s cost efficiency or performance; or (b) to comply with applicable law.
3. RESTRICTIONS AND RIGHTS GENERALLY.
3.1. Use Restrictions. Customer shall not use any Service for any purposes beyond the scope of the access granted in the Agreement. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; or (v) use any Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. If Customer becomes aware of any actual or threatened activity prohibited by this Section, Customer shall immediately: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Provider of any such actual or threatened activity.
3.2. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to any of the Provider IP.
3.3. Suspension. Notwithstanding anything to the contrary in the Agreement, Provider may temporarily suspend Customer’s access to any portion or all of any Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the applicable Service to Customer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the applicable Service; or (iii) Customer has failed to pay any fees due within 15 days following Provider’s written notice to Customer thereof (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any patient may incur as a result of a Service Suspension.
3.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Software or any other Service. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
4. CUSTOMER RESPONSIBILITIES.
4.1. General. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of persons accessing or using any Service under or through Customer or any of its account credentials, and any act or omission by an such person that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer. Customer shall use reasonable efforts to make all of its authorized personnel aware of the terms of the Agreement as applicable to such person’s use of any Services, and shall cause its authorized personnel to comply with such provisions.
4.2. Third-Party Products. Third-Party Products, whether supplied by Provider, Customer, or Customer’s patients, are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not use or install any such Third-Party Products.
4.3. Cooperation and Access.
4.3.1. Customer shall assist and cooperate with Provider, including, without limitation, by providing access to relevant Customer personnel, systems (including without limitation documentation and access to all electronic health records systems (“EHR”)), and data (including without limitation Customer Data), as requested from time to time by Provider, to facilitate the provision of any Services under this Agreement.
4.3.2. Without limiting the generality of the foregoing, Customer shall grant Provider continuous access at all times during the Term to all insurance and personal information of Customer’s patients as necessary to verify insurance coverage and bill such insurers (“Insurance Information”), with respect to any Services for which Provider is entitled to seek reimbursement from such insurers in accordance with any Order Form. If Customer is unable to provide such continuous access to Provider, Customer shall provide Provider with reports of all Insurance Information as reasonably requested by Provider. Provider shall have no obligation to provide any Services with respect to any patient of Customer if Provider is entitled to seek reimbursement from an insurer with respect to such Services, until Provider has received sufficient Insurance Information as determined by Provider.
4.4. Updates or Changes. Customer shall immediately notify Provider of any material updates or changes to its systems (including without limitation Customer’s EHR) or data that might impact the provision of any Services under this Agreement, and Customer shall assist Provider in evaluating such potential impact. Customer shall be responsible for Provider’s reasonable costs and expenses incurred in connection with evaluating and responding to any such updates or changes. In no event will Provider be liable if any such update, change, or other incompatibility of Customer’s systems or data (other than any incompatibility caused by Provider after completion of successful Integration Services) causes Provider to be unable to provide any of the Services (an “Incompatibility Event”).
4.5. Customer Infrastructure. Customer is responsible for obtaining, maintaining, securing, and paying all costs arising out of or relating to Customer’s computer systems, networks, equipment, Internet connections, and EHR.
5. HOSTING, SLA & SUPPORT SERVICES. If the applicable Order Form specifies that Provider licenses the Software to Customer, the terms of this Section shall apply:
5.1. Hosting & Management. Provider shall be responsible for hosting and managing the Software.
5.2. Scheduled Downtime. In the event Provider determines that it is necessary to intentionally interrupt the Software or that there is a potential for the Software to be interrupted for the performance of system maintenance (collectively, “Scheduled Downtime”), Provider will use good-faith efforts to notify Customer of such Scheduled Downtime at least 24 hours in advance and will ensure Scheduled Downtime occurs during non-peak hours (midnight to 6 a.m. Central Time). In no event shall Scheduled Downtime constitute a failure of performance by Provider.
5.3. Outages. No credits shall be given in the event Customer’s or an Authorized Device’s access to Software is delayed, impaired or otherwise disrupted (collectively, an “Outage”). If such Outage, excluding Scheduled Downtime (as defined below), results in the monthly service level uptime falling below 95% for three consecutive months (collectively, “Uptime Commitment”), then Customer shall have the option to immediately terminate the Agreement. This is Customer’s sole remedy for Provider’s breach of the Uptime Commitment.
5.4. Software Support Service. Provider shall have personnel reasonably available (subject to wait and hold time) to provide technical support with respect to the Software from 8am to 5pm Central Time Monday through Friday, but not including any holidays as reasonably determined by Provider.
5.5. Support Time. No credits shall be given in the event that Provider is unable to materially provide the support described under Section 5.4 (“Support Obligation Failure”). In the event of a Support Obligation Failure, Customer may give written notice thereof to Provider, detailing the factual basis thereof. If Customer gives three such notices in any 6-month period, Customer shall have the option to immediately terminate the Agreement. This is Customer’s sole remedy for Support Obligation Failures.
6.1. Customer shall pay Provider the fees, if any, as set forth in the Agreement. If Customer fails to make any payments when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s access to any portion or all of the Software until such amounts are paid in full.
6.2. All fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
6.3. Except as may otherwise be set forth in an Order Form, Provider shall be entitled to increase all fees under an Order Form by up to five percent (5%) per calendar year, without notice, beginning as of January 1 of the first whole calendar year during which the Order Form is in effect.
7. TERM AND TERMINATION
7.1. Term. The term of the License and these Terms (the “Term”) shall be as set forth in and coterminous with the applicable Order Form.
7.2. Effect of Termination.
7.2.1. Upon expiration or termination of the Term:
18.104.22.168. The Services and the License shall terminate, and Customer shall immediately discontinue use of the Provider IP;
22.214.171.124. Provider may disable all Customer access to the Services and other Provider IP;
126.96.36.199. Without limiting Customer’s obligations under Section 8, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed.
7.2.2. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Customer to any refund.
7.2.3. Expiration or termination of the Term is without prejudice to any other right or remedy of the parties and shall not release either party from any liability (a) which at the time of termination, has already accrued to the other party, (b) which may accrue in respect of any act or omission prior to termination, or (c) from any obligation which is intended to survive termination.
7.3. Delivery of Data. If Customer requests its data within sixty (60) days of expiration or termination of the Term, Provider will provide Customer access to Customer Data for a commercially reasonable fee. Provider is under no obligation to retain Customer Data more than sixty (60) days after expiration or termination of the Term. None of the Services replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
7.4. Survival of Terms. Unless otherwise stated, all of the parties’ respective obligations, representations and warranties under these Terms which are not, by the express terms of these Terms, fully to be performed during the Term, shall survive the termination or expiration of the Agreement.
8.1. Confidential Information. “Confidential Information” refers to the following items: (a) any document marked “Confidential”; (b) any information orally designated as “Confidential” at the time of disclosure, provided the disclosing party confirms such designation in writing within five (5) business days; (c) all elements (including Provider IP) of any Software or other Service furnished to Customer hereunder and any Documentation, whether or not designated confidential; and (d) any other nonpublic, sensitive information which reasonably should be understood to be a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is rightfully in the other party’s possession at the time of disclosure; (ii) is independently developed without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of a party’s improper action or inaction; (iv) is approved for release in writing by the disclosing party; (v) is required to be disclosed by law; or (vi) PHI, which shall be governed by the Business Associate Agreement rather than this Section.
8.2. Nondisclosure. Neither party shall use the other party’s Confidential Information for any purpose other than to fulfill the terms of the Agreement (the “Purpose”). Each party: (a) shall ensure that its employees or contractors are bound by confidentiality obligations no less restrictive than those contained herein and (b) shall not disclose the other party’s Confidential Information to any other third party without prior written consent from the disclosing party. Without limiting the generality of the foregoing, the receiving party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. A receiving party shall promptly notify the disclosing party of any misuse or misappropriation of the other party’s Confidential Information of which it is aware. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order at the other party’s sole cost and expense; or (ii) to establish a party’s rights under the Agreement, including to make required court filings.
8.3. Injunction. Customer agrees that breach of Section 8.2 would cause Provider irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Provider will be entitled to injunctive relief against such breach or threatened breach, without Provider proving actual damage or posting a bond or other security.
9. CUSTOMER DATA & PRIVACY
9.1. Ownership of Data & Reports. Customer covenants that Customer will only supply, and authorize any applicable third parties to supply, PHI that Customer has the right to supply for the purposes set forth in the Agreement. Provider does not claim any ownership right in PHI, although Provider will have the right to utilize the PHI as permitted by the Business Associate Agreement between the parties and the Agreement. Customer hereby grants Provider a nonexclusive royalty free license to use PHI to create de-identified data in accordance with 45 CFR § 164.514(a)-(c) (“De-identified Data”) for any and all legally permissible purposes.
9.2. Use of Customer Data. Except as provided by the Agreement, unless it receives Customer’s prior written consent, Provider: (a) shall not access, process, or otherwise use Customer Data; and (b) shall not intentionally grant any third-party access to Customer Data, including without limitation Provider’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement or authorized participants. Notwithstanding the foregoing, Provider may use and disclose Customer Data to fulfill its obligations under the Agreement or as required by applicable law or by proper legal or governmental authority, and Customer shall promptly provide any and all patient demographic data requested by Provider for such purposes. Provider shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s sole cost and expense.
9.3. Anonymized Data. Notwithstanding any provision herein, to the maximum extent permitted by applicable law, Provider may, without restriction, use, reproduce, license, or otherwise exploit Aggregated Statistics, Anonymized Data, and De-identified Data; provided that such Aggregated Statistics, Anonymized Data, and De-identified Data does not contain and is not PHI.
9.4. Risk of Exposure. Customer recognizes and agrees that use of the Services involves risks of unauthorized disclosure and that Customer assumes such risks. Provider makes no representations regarding the reliability, performance or security of any network or provider.
10. PHI ACCURACY & COMPLETENESS; RESPONSIBILITY FOR MEDICAL CARE.
10.1. Provider gives no representations or guarantees about the accuracy or completeness of Customer Data (including PHI) entered, uploaded or disclosed to Provider by Customer or any Authorized Device.
10.2. Customer is solely responsible for any decisions or actions taken involving patient care or patient care management, whether those decisions or actions were made or taken using information received through Provider and/or the Services. Customer agrees and acknowledges that the Software and other Services may not always work as intended or without error, and that it is the sole responsibility of Customer to administer appropriate patient care. Customer understands and agrees that under no circumstances will Provider be responsible or liable, in whole or in part, for any decision, action, or omission with respect to the care of any patient of Customer
11. INTELLECTUAL PROPERTY; FEEDBACK.
11.1. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers or manufacturers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
11.2. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within any Aggregated Statistics, Anonymized Data, and De-identified Data.
11.3. Feedback. If Customer or any of its employees or contractors or subcontractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
12. DISCLAIMER OF WARRANTIES.
12.1. THE PROVIDER IP, AUTHORIZED DEVICES, AND ANY SERVICES PROVIDED BY PROVIDER ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT ANY SERVICES PROVIDED BY PROVIDER OR THE PROVIDER IP OR AUTHORIZED DEVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S (INCLUDING PATIENTS’) 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 HARMFUL CODE, OR ERROR FREE.
12.2. Provider cannot and does not guarantee or provide any warranty that any applicable Services will be compatible with any particular Customer systems, including EHR. As such, Provider cannot and does not make any warranty with respect to the results of any Integration Services.
12.3. Provider may, at its option, provide troubleshooting support for Authorized Devices, but Customer agrees that it shall look solely to the warranty, if any, provided by the manufacturer of the Authorized Device.
13.1.1. Provider shall indemnify, defend, and hold harmless Customer and its affiliates and their respective directors, officers, shareholders, employees, representatives, agents, successors and permitted assigns, from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software, or any use of the Software in accordance with the Agreement, infringes or misappropriates such third party’s United States patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
13.1.2. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Software. If Provider determines that neither alternative is reasonably available, Provider may terminate the Agreement, in their entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
13.1.3. This Section 13.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Software not made by Provider; or (C) Customer Data; or (D) Third-Party Products.
13.2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its affiliates and their respective directors, officers, shareholders, employees, representatives, agents, successors and permitted assigns, from and against any Losses based on, arising out of, relating to, or resulting from any Third-Party Claim that (A) alleges harm or loss of any kind whatsoever (including personal injury up to and including death) that arises, directly or indirectly, from Customer’s or any patient’s use of information received from Provider and/or the Services, (B) the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party’s intellectual property, privacy rights, or any other rights, (C) relates to actions of Provider taken at the direction of Customer; or (D) is based on or relates to Customer’s (i) negligence, willful misconduct, or failure to comply with applicable laws, regulations, contractual obligations, and the like; (ii) use of any Services in a manner not authorized by the Agreement; (iii) use of any Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Software not made by Provider. Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement in writing, and further provided that Provider will have the right, at its option, to defend itself (at Provider’s cost and expense) against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
13.3. Sole Remedy. THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. LIMITATION OF LIABILITY; ASSUMPTION OF RISK.
14.1. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR ANY SERVICES PROVIDED BY PROVIDER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION, INCLUDING WITHOUT LIMITATION ADVERSE EFFECTS ON CUSTOMER’S MEDICAL LICENSING; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, DUPLICATION, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR DATA TRANSMISSION FAILURES, INCLUDING WITHOUT LIMITATION THOSE ARISING FROM ANY UNAVAILIBITY OF OR UPDATES OR CHANGES TO CUSTOMER’S EHR; OR (e) ANY INCOMPATIBILITY EVENT; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, OR (g) PERSONAL BODILY INJURY, UP TO AND INCLUDING DEATH, OF ANY PATIENT CAUSED DIRECTLY OR INDIRECTLY BY CUSTOMER’S OR ANY PATIENT’S USE OF THE SOFTWARE OR ANY AUTHORIZED DEVICE OR ANY OTHER SERVICE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14.2. Any liability incurred as a result of patient treatments or interactions which include the use of any Service is entirely borne by the Customer and not by Provider. Provider is not responsible for any mishandling, misuse, or unauthorized reproduction of any data extracted from any Service. Furthermore, Provider is not responsible for any type of data breach or release of any personal or confidential information obtained through the use of any Service except as required by applicable law. Provider makes no representations and shall bear no responsibility for any interpretation or communication of any data extracted from any Service. Customer is solely responsible for any and all professional malpractice claims or similar causes of action, and expressly releases Provider from any liability with respect to any such claim. Customer’s use of any Services represents Customer’s agreement to these provisions.
14.3. Customer understands and assumes the risks associated with the use of the Services. Customer acknowledges that Customer has entered into the Agreement freely and at Customer’s own risk. Customer understands that there is an inherent risk of using and relying on the data and/or any interpretations of data Provider or its agents or subcontractors may provide as part of the Services. Customer expressly assumes all risks of using the Services. Customer further assumes any and all risks associated with interpretation of the data and the effects such reliance has on the services Customer renders to its patients.
15.1. Independent Contractors. The parties are independent contractors. Nothing contained in this Agreement is intended to or shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.2. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.3. Marketing. Customer hereby grants Provider a license to include Customer’s name and primary logo in any customer list or press release to identify Customer as a customer of Provider or user of the Services.
15.4. Entire Agreement. The Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter thereof and hereof and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
15.5. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
15.6. Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, epidemic or pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
15.7. Amendment. Provider may revise and update these Terms from time to time in its sole discretion. In such event, Provider will give notice of such revision or update by emailing you, posting a notice on the Software, or by any other method reasonably determined by Provider. Your continued use of any Services after any such revision or update will constitute your agreement to such revision or update, unless you object thereto within thirty (30) days of the date of notice of such revision or update, in which case the previous version of these Terms shall control your continued use of the Services for the remainder of the then-current Term. If the Term of your Agreement automatically renews, the new version of these Terms shall control your continued use of the Services following auto-renewal of the Term, even if you have timely objected to the new Terms in writing. If you do not wish to be controlled by the new Terms, your sole remedy is to discontinue your use of the Services by cancelling the automatic renewal of your Term in accordance with your Agreement.
15.8. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.9. Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.10. Governing Law. The Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.
15.11. Arbitration. Any dispute, controversy or claim arising out of, relating to, or in connection with any Services or the Agreement or any breach, termination or validity thereof (each, a “Dispute”), shall be resolved exclusively by final and binding arbitration to be held with ADR Services, Inc. (“ADR”) in Los Angeles County, California, in accordance with ADR’s Arbitration Rules in effect at such time (the “Rules”), before a single neutral arbitrator chosen by the written consent of the parties, or, if such parties are unable to agree within thirty (30) days after the demand for arbitration is filed and served, a single neutral arbitrator shall be chosen in accordance with the Rules. Any dispute regarding arbitrability of any issue arising out of or in connection with this Agreement shall be determined by the arbitrator, which determination shall be conclusive. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.12. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Provider's prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
15.13. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software or any Customer Data outside the United States.
15.14. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Section 3.1, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
[end of Terms]