All terms and conditions for the products included within your Software License Agreement are listed below. Only those products terms and conditions for the products included in your package and/or listed within the Software License Agreement are considered to be a part of your agreement. All products listed herein are subject to the terms of the Software License Agreement and the terms of the addenda set forth herein. In the event of any conflict between the two, the terms of these addenda shall govern. eClinicalWorks reserves the right, at its sole discretion, to make changes to portions or all of the terms and conditions provided on this webpage. You are responsible for checking this webpage periodically for such changes. Your continued use of the applicable software and services means that you agree to any new or modified terms or conditions contained herein.
Table of Contents
Addendum for AI Products [Including AI Assistant using Large Language Model (LLM)/AI Assistant with Generative AI, AI Assistant for PRISMA, AI Assistant for Images, Sunoh.ai, ACG Module, and/or Clinical Intelligence for Population Health Records (CIPHR)].
This Addendum to the Software License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the Software License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to access and utilize one or more of the artificial intelligence products: AI Assistant using Large Language Model (LLM)/AI Assistant with Generative AI, AI Assistant for PRISMA, AI Assistant for Images, Sunoh.ai, ACG Module, and/or Clinical Intelligence for Population Health Records (CIPHR) (all collectively referred to as “AI Products”). |
| AI Assistant using Large Language Model (LLM)/AI Assistant with Generative AI enables Customer to interact with the eClinicalWorks Software using natural language AI Assistant and to translate content to and from other languages, and access virtual support using LLM within eClinicalWorks EMR and/or eClinicalWorks PM. | |
| AI Assistant for PRISMA enables Customer to interact with healow PRISMA using natural language AI Assistant. | AI Assistant for Images analyzes documents and extracts content from scanned documents, images and/or fax inbox documents to allow for document categorization and referral creation using cognitive AI service. |
| Sunoh.ai uses ambient listening during a patient visit and generates a draft of the conversation between Provider and patient. The Provider will then review and correct the details for completeness and accuracy. | |
| ACG Module integrates Johns-Hopkins Adjusted Clinical Groups (ACG) System analysis from administrative and pharmacy claims data into an eClinicalWorks dashboard and presents morbidity, cost, utilization, pharmacy adherence, and care coordination key performance indicators and predictive models for a risk-stratified member population. | |
| CIPHR is Clinical intelligence data analyzer that has the ability to create cohorts to enroll in care management programs. | |
| Terms Specific to AI Assistant for Images | Customer understands that certain AI Products include a feature that utilizes facial recognition to facilitate ease of identification of patients and users. Customer agrees to abide by all federal and state laws regarding the use of biometric data. In the event Customer utilizes the facial recognition technology, it is Customer’s responsibility to obtain consent from its patients prior to obtaining patients’ biometric data in order to use such data. Customer is responsible for marking patients or users as inactive such that biometric data can be purged as set forth in the relevant federal and state laws. |
| Terms Specific to Sunoh.ai | Customer understands that the use of certain AI Products synthesizes data from a recording that is completed during the encounter between the patient and the physician. Customer understands it is solely responsible for obtaining patient consent to record the conversation in each encounter in which AI Products are utilized. |
| Professional Medical Judgement | Customer understands and agrees that AI Products are intended to assist providers as a tool and is not a substitute or replacement for professional medical judgment, diagnosis, or treatment. Customer is responsible for reviewing the data suggested by AI Products and confirming the accuracy of such data at the time of its use. Customer understands and agrees that artificial intelligence tools and technologies, including AI Products, can make mistakes and do not always provide accurate or complete information. Anyone relying on information obtained from using AI Products does so at the Customer’s own risk. Customer understands and agrees that it is solely Customer’s responsibility to review the data and determine if the content is accurate, complete, and fit for the intended purpose. |
| Personal Information | Personal Information Personal Information which is accessed or used by eClinicalWorks in providing the AI Products will be subject to the terms found at https://request.eclinicalworks.com/privacy/privacy-policy.php. |
| Protected Health Information | Protected Health Information (PHI) may be exchanged pursuant to this Addendum. Customer shall obtain all necessary authorizations and consents of patients, providers, regulators, and any other person or entity necessary for Customer’s use of the AI Products. In the event that eClinicalWorks and Customer do not have a Business Associate Agreement in place that would apply to the software and services provided under this Addendum, the use and disclosure of PHI shall be subject to and in accordance with the terms of eClinicalWorks Business Associate Addendum, located at https://www.eclinicalworks.com/baa/. |
| eClinicalWorks’ Use of Data | eClinicalWorks’ Use of Data Customer understands and agrees that eClinicalWorks may use data generated by Customer for troubleshooting, machine learning, and product improvement. Customer is responsible for obtaining all patient consents necessary in order to allow eClinicalWorks to provide services to Customer. |
| Termination of Customer Use of AI Products | Either party may terminate their use of the AI Products at any time without cause by providing written notice. |
| Disclaimer | THE USE OF AI PRODUCTS IS NOT SUBJECT TO ANY WARRANTIES OR INDEMNIFICATION PROVIDED BY ECLINICALWORKS IN THE SOFTWARE LICENSE AGREEMENT. AI PRODUCTS ARE PROVIDED “AS IS” AND ECLINICALWORKS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS TO CUSTOMER REGARDING THE USE OF AI PRODUCTS, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF AI PRODUCTS, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. |
| Indemnification | eClinicalWorks and its affiliates harmless from any and all liabilities, damages, losses, or expenses (including reasonable attorneys fees) incurred by or imposed upon eClinicalWorks in connection with any claims, suits, actions, demands or judgments resulting from or arising out of the use of AI Products, including any claims alleging that the content Customer creates infringes the intellectual property rights of another party. |
| Limitation of Liability | ECLINICALWORKS SHALL HAVE NO LIABILITY FOR ANY DAMAGES OR LOSSES ARISING FROM THE USE OF AI PRODUCTS, INCLUDING ANY ERRORS, DEFECTS, OR OTHER ISSUES. |
Addendum for Wiley Practice Planners Datasets
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | John Wiley & Sons is the company providing Wiley Practice Planners Datasets accessible within the Behavioral Health Module. Customer hereby agrees to the John Wiley & Sons’ terms in Exhibit A. |
| Functionality | Customer desires to add the Wiley Practice Planners Datasets. Access to Behavioral Health Module is required for providers to have access to Wiley Practice Planners Datasets. |
| Payment | Payment $10 per provider per month for Wiley Practice Planners Datasets.. |
| Applicable Laws | Customer understands that it is Customer’s sole responsibility to ensure their own compliance with federal, state and local laws. eClinicalWorks is not responsible for ensuring Customer abides by any applicable law while using the Behavioral Health Module and Wiley Practice Planners Datasets. |
| Indemnification | Customer agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with the services provided by the processing partner described in this Addendum. |
| Warranties | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. | Cancellation | To cancel this Addendum, Customer must contact eClinicalWorks via a Support Case logged on the Customer Care Portal. Cancellation may take up to 60 days. |
Exhibit A
John Wiley & Sons Terms and Conditions
1. The Wiley Practice Planners Datasets are designed to provide accurate and authoritative information in regard to the subject matter covered. They are licensed with the understanding that the publisher is not engaged in rendering professional services. If legal, accounting, medical, psychological, or other expert assistance is required, the services of a competent professional person should be sought. THE PRACTICE PLANNER DATASETS AND ALL INFORMATION THEREIN ARE PROVIDED ``AS IS” AND EXPRESS AND IMPLIED WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR QUALITY, ACCURACY, COMPLETENESS AND/OR SUITABILITY ARE DISCLAIMED.
2. From Wiley Practice Planners, Used by permission of John Wiley & Sons, Inc. John Wiley & Sons are the sole proprietor and publisher of the Practice Planners.
Addendum for Carequality Interoperability Framework
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to connect to the Carequality Interoperability Framework. |
| Fees and Payment | Customer acknowledges that eClinicalWorks reserves the right to charge a maintenance fee at any point after January 1, 2022.Customer will receive a notification 60 days prior to any charges. |
| Carequality Consent | Customer consents to inclusion in the Carequality Interoperability Framework. This Addendum is subject to Customer's meeting the requirements of and being accepted by that framework. Customer further consents to eClinicalWork's taking any and all actions, and to provide any and all information requested of eClinicalWorks, necessary or appropriate for eClinicalWorks to perform its obligations in connection with this Addendum and pursuant to any agreements with Carequality and Surescripts. |
| Patient Consent | Customer acknowledges and agrees that it maintains sole responsibility for obtaining in writing any and all consents and authorizations required or necessary from patients or otherwise ("Consents") in connection with Customer's role as a Carequality Connection and/or user of Surescripts National Record Locator Service ("NRLS") and its actions in connection therewith. For the avoidance of doubt, Customer acknowledges that federal and state confidentiality laws may prohibit disclosure of certain categories of information without the specific written consent of the person to whom it pertains in the form required by such laws, and Customer agrees to obtain any and all Consents required or necessary to comply with such laws. eClinicalWorks offers both opt-in and opt-out models whereby (i) under the opt-out model, patients will be opted into the Carequality framework and/or NRLS by default unless they request not to be included, and (ii) under the opt-in model, patients will be required to expressly opt in to the Carequality framework and/or NRLS. Customer has the right to select either the opt-in model or the opt-out model as described above and covenants and agrees (i) that it shall explain to each patient whose clinical data may be queried and utilized hereunder the purposes of this Addendum and the manner in which such data will be utilized, and (ii) that it shall obtain all Consents necessary or required under applicable law to authorize inclusion of the patient's data (and all other applicable information) in the Carequality framework and/or NRLS. Customer acknowledges and agrees that eClinicalWorks reserves the right to require Customer to furnish all such Consents upon request and to prohibit use of any data. |
| Customer Prerequisites | Customer must agree to the separate (i) Carequality Terms and Conditions (Exhibit A below) and (ii) the Surescripts National Record Locator Terms and Conditions (Exhibit B below). |
| Adverse Security Reporting | As soon as reasonably practicable, but no later than five (5) business days after determining that an Adverse Security Event, as such term is defined in Exhibit A, has occurred and is likely to have an adverse impact, Customer shall provide eClinicalWorks with notification of the event by contacting eClinicalWorks customer support. The notification should include sufficient information for eClinicalWorks to understand the nature of the Adverse Security Event and identify all parties and persons that may be impacted by the Adverse Security Event. Notwithstanding the foregoing, Customer agrees that (a) within one (1) hour of learning that an Adverse Security Event occurred, if such Event may involve a person or entity that is a federal agency, Customer shall alert the federal agency in accordance with the procedures and contacts provided by such federal agency, and (b) within twenty-four (24) hours after determining that an Adverse Security Event has occurred and is likely to have an adverse impact on any person or entity that is a federal agency, Customer shall provide a notification to the federal agency in accordance with the procedures and contacts provided by such federal agency, and Customer shall copy eClinicalWorks on any such notification. |
| Customer represents and warrants that its role as a Carequality Connection and/or user of NRLS hereunder is solely for purposes of treatment as defined in 45 C.F.R.§ 164.501 and any and all of its actions shall be for this purpose. In connection with the foregoing, Customer understands and agrees that it is participating in the query based document exchange use case as both an initiator and responder to facilitate the production, transmission and dissemination of documents and records to all applicable parties in its role as a Carequality Connection or user of NRLS for the general purpose of the provision, coordination or management of health care and related services. | |
| Treatment and Patient Request Purpose | Customer may claim the "Patient Request" permitted purpose for queries that are directly initiated by the patient or the patient's personal representative as defined by 45 CFR 164.502(g), via a personal health record or other consumer-facing application. Any requests initiated by individuals other than the patient or personal representative may not use the Patient Request permitted purpose, even if the patient has indicated that he or she wishes for the request to occur. For queries initiated directly by the patient's personal representative, Customer is responsible for ensuring that the individual initiating the query is, in fact, authorized and appropriate to act as the personal representative as defined by HIPAA. |
| Indemnity | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum, including Customer's role as a Carequality Interoperability Framework participant, Customer's use of NRLS, or otherwise pursuant any actions or inactions of Customer with respect to the necessary Carequality Interoperability Framework agreement, including those provided here. |
| Warranties and Limitation of Liability | CUSTOMER UNDERSTANDS THAT THE ADDENDUM AND THE UNDERLYING SERVICES ARE SUBJECT TO APPLICABLE STATUTES AND REGULATIONS, AND ARE PROVIDED ON AN "AS IS, AS AVAILABLE, WITH ALL FAULTS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.ECLINICALWORKS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE CAREQUALITY FRAMEWORK OR NRLS.UNDER NO CIRCUMSTANCES WHATSOEVER SHALL ECLINICALWORKS BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ANY KIND, INCLUDING ANY SUCH DAMAGES THAT RESULT FROM THE USE, INCONVENIENCE, DELAY, OR LOSS OF USE OF THE CAREQUALITY FRAMEWORK OR NRLS OR FROM THE ACT OR OMISSION OF ANY PROVIDER, EVEN IF ECLINICALWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES |
Exhibit A
Carequality Connection Terms
1.Definitions: As used herein, the following terms have the following meanings:
a.Adverse Security Event: The unauthorized acquisition, access, disclosure, or use of individually identifiable health information (as defined in the HIPAA Regulations) while such information is being transmitted between Implementers or Carequality Connections as specified by a Carequality Implementation Guide and pursuant to a valid CCA or Carequality Connection Terms, as applicable, but shall not include (i) any unauthorized acquisition, access, disclosure or use of encrypted data; (ii) any unintentional acquisition, access, disclosure, or use of health information if (I) such acquisition, access, disclosure, or use was made in good faith and within the course and scope of the employment, or if not an employee, as a member of the workforce of an End User; and (II) such health information is not further acquired, accessed, disclosed or used by the End User; or (iii) any acquisition, access, disclosure or use of information that was not directly related to use of the Carequality Elements
b.Applicable Law: (i) If Organization is not a Federal agency, all applicable statutes and regulations of the State(s) or jurisdiction(s) in which Organization operates, as well as all applicable Federal statutes, and regulations; or (ii) if Organization is a Federal agency, all applicable Federal statutes, regulations, standards and policy requirements of the Organization agency.
c.Business Associate: An organization that is defined as a “business associate” in 45 C.F.R. § 160.103 of the HIPAA Regulations.
d.Business Day(s): Monday through Friday excluding federal or state holidays.
e.Carequality Connection: An organization that is properly listed in the Carequality Directory in accordance with the requirements of Section 15 of the CCA.
f.Carequality Director: A set of information that includes entries for all organizations who have been accepted as Carequality Implementers, along with those organizations’ Carequality Connections, which serves as the definitive reference for identifying those organizations who are valid participants in exchange activities through the Carequality Elements, and for obtaining the information needed to establish technical connectivity with such organizations.
g.Carequality Elements: Those elements that have been adopted by Carequality to support widespread interoperability among Implementers including, but not limited to, the Carequality Connected Agreement, the Carequality Connection Terms, the Carequality Directory, Implementation Guides, and the Carequality Policies.
h.Carequality Policies: Those policies and procedures adopted by Carequality which are binding on Carequality, Implementers, Carequality Connections or all of them.
i.Carequality Use Case: A combination of a set of functional needs and a particular technical architecture for addressing those needs, for which the Carequality Steering Committee (“Steering Committee”) has adopted an Implementation Guide.
j.Confidential Information: Proprietary or confidential materials or information of a Discloser in any medium or format that a Discloser labels as such upon disclosure or given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered confidential. With respect to Carequality, Confidential Information also includes those components of the Carequality Elements that the Carequality Steering Committee determines should be labeled Confidential. Notwithstanding any label to the contrary, Confidential Information does not include any Contribution (even if included in a Carequality Element); any information which is or becomes known publicly through no fault of a Recipient; is learned of by a Recipient from a third party entitled to disclose it; is already known to a Recipient before receipt from a Discloser as documented by the Recipient’s written records; or, is independently developed by Recipient without reference to, reliance on, or use of, Discloser’s Confidential Information.
k.Contribution: Any submission by a Discloser to Carequality intended by the Discloser to be considered for inclusion in any of the Carequality Elements, including comments submitted on any media, oral discussions at meetings of any work group, committee or sub-committee or other types of submissions.
l.Covered Entity: An organization that is defined as a “covered entity” in 45 C.F.R. § 160.103 of the HIPAA Regulations.
m.Discloser: The entity that discloses Confidential Information to a Recipient.
n.Dispute: Any controversy, dispute, or disagreement arising out of or relating to the interpretation or implementation of the Carequality Elements.
o.End User: An individual or program generating a request for information, responding to a request for information, publishing information to a list of recipients or receiving published information through the Carequality Elements.
p.Exchange Activity: Any use of the capability provided or supported by the Carequality Elements to exchange information among Implementers or their Carequality Connection.
q.Governmental Entity: A local, state or Federal agency.
r.HIPAA Regulations: The Standards for Privacy of Individually Identifiable Health Information and the Security Standards for the Protection of Electronic Protected Health Information (45 C.F.R. Parts 160 and 164) promulgated by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as in effect on the effective date of the Enforcing Agreement and as may be amended, modified, or renumbered.
s.Implementation Guide: A guide adopted by Carequality that sets forth the technical specifications and additional business rules that apply to Implementers and Carequality Connections who declare support for a specific Carequality Use Case. Additional business rules will include, but not be limited to, permitted purposes for the Carequality Use Case, roles associated with the Carequality Use Case and specifications on compliance with Section 8 of these Carequality Connection Terms (“NonDiscrimination”).
t.Implementer: An organization that has signed the Carequality Connected Agreement and been accepted as such by Carequality.
u.Organization Business Rule: A data sharing restriction that Organization has adopted for itself and its End Users. An Organization Business Rule may only be based on a policy decision that Organization has made with respect to the handling of patient data identified as clinically or legally sensitive, or to the consent or authorization that is required to share data with other Implementers and Carequality Connections. It is not necessary that the Organization Business Rule be required by Applicable Law or be based on Applicable Law.
v.Organization: The Carequality Connection on which these Carequality Connection Terms are binding.
w.Recipient: The entity that receives Confidential Information from a Discloser.
x.Sponsoring Implementer: The entity that is a party to the Carequality Connected Agreement and is ensuring that these Carequality Connection Terms are legally binding on Organization, either directly through contract or some other appropriate relationship with Organization, or by relying on one or more intermediaries. This term is used to distinguish this specific entity from other Implementers, and applies to that entity both during the period in which it is seeking to attain Implementer status, and after it is accepted as an Implementer.
2.Recognition as a Carequality Connection.
a.Organization. Upon Sponsoring Implementer determining to its satisfaction that Organization has met the requirements to be a Carequality Connection, and Sponsoring Implementer’s inclusion of Organization in the Carequality Directory, Organization shall be recognized as a Carequality Connection, subject to all obligations, terms and conditions contained herein and entitled to all rights and benefits conferred upon Carequality Connections including, but not limited to, inclusion in the Carequality Directory.
b.Sub-Organization Entities. Sponsoring Implementer may delegate to Organization the authority to identify to Carequality those of Organization’s subsidiary and related entities that Organization wishes to be listed in the Carequality directory as Carequality Connections of Sponsoring Implementer (“SubOrganization Entities”). Such entities include, but are not limited to, separately branded business divisions, individual hospitals, individual clinics or medical offices, and otherwise-unaffiliated entities who contract with Organization for use of Organization’s electronic health record system. For all SubOrganization Entities that Organization identifies, it shall ensure that each Sub-Organization Entity is legally required to comply with these CC Terms. In addition, Organization shall work cooperatively with Sponsoring Implementer to assure that its Sub-Organization Entities are not already listed in the Carequality Directory by another Carequality Implementer
3.Suspension and Termination.
a.Suspension. Sponsoring Implementer or Carequality may suspend Organization’s ability to participate in any exchange activity under the Carequality Connection Terms in the event that Sponsoring Implementer or Carequality determines, following completion of a preliminary investigation, that (i) Organization has breached a material provision of these Carequality Connection Terms and failed to cure such breach within fifteen (15) days or such other period of time that the Parties have agreed to, of receiving notice of same; or (ii) there is a substantial likelihood that Organization’s acts or omissions create an immediate threat or will cause irreparable harm to Carequality, Sponsoring Implementer, another Implementer, Carequality Connection, End User or individual (collectively, a “Threat Condition”). Organization may provide notice to Sponsoring Implementer that it wishes to temporarily remove itself from the Carequality Directory in the event that Organization or any of Organization’s End Users cannot comply with these Carequality Connection Terms.
b.Termination. Sponsoring Implementer may terminate Organization’s status as a Carequality Connection with immediate effect by giving notice to Organization if: (i) Organization is in material breach of any of these Carequality Connection Terms and fails to remedy such breach within 30 days after receiving notice of such breach; or (ii) Organization breaches a material provision of these Carequality Connection Terms where such breach is not capable of remedy. Subject to the terms of any agreement between Organization and Sponsoring Implementer, Organization may voluntarily terminate its status as a Carequality Connection at any time by providing written notice to Sponsoring Implementer and to Carequality at least 60 prior to the effective date of the termination. The notice shall indicate the reason(s) for Organization deciding to terminate its status as a Carequality Connection. If Organization is a U.S. federal agency, then the Contract Disputes Act (“CDA”), 41 U.S.C. sections 7101 et seq., shall govern alleged breaches under these Carequality Connection Terms.
4.Legal Requirements. Organization shall, at all times, fully comply with all Applicable Law relating to these Carequality Connection Terms and the use of the Carequality Elements. To further support the privacy, confidentiality, and security of health information exchanged pursuant to these Carequality Connection Terms, Organization agrees that when acting as a Carequality Connection, it will comply with the provisions of the HIPAA Regulations that are applicable to Business Associates as a minimum contractual standard of conduct even if Organization is not a Covered Entity, a Business Associate, or a Governmental Entity. Notwithstanding any provision of these Carequality Connection Terms to the contrary, an Organization that is a federal agency and is not otherwise subject to the HIPAA Regulations shall not be required to comply with the HIPAA Regulations under these Carequality Connection Terms.
5.Compliance with the Implementation Guides and Carequality Policies. Organization shall implement and maintain support of at least one Carequality Use Case and shall indicate to Sponsoring Implementer the Organization’s role in such Carequality Use Case (“Carequality Use Case Role”). For all Carequality Use Cases supported by Organization, Organization shall comply with all components (unless such components are designated as optional) set forth in the applicable Implementation Guide that apply to (i) the Organization’s Carequality Use Case Role or (ii) all Carequality Connections. Organization is encouraged, but not required, to comply with all optional components of the applicable Implementation Guide(s). Organization also agrees that, if it is not in compliance with all applicable components of the Implementation Guide(s) and all Carequality Policies applicable to Carequality Connections, Sponsoring Implementer may exercise its right to suspend Organization in accordance with Section 3.1. Notwithstanding any provision of these Carequality Connection Terms to the contrary, if Organization is a U.S. federal agency, no change in policies or procedures shall apply to such agency until the agency has received 60 days’ prior written notice of the change and has assented in writing to the change. If the agency does not assent or does not object based on federal law to the change(s) in writing within 60 days, the change(s) shall apply to the agency. In the event of an agency objection based on federal law, if the objection is not resolved prior to the effective date of the change(s) to which the agency objects, the agency may voluntarily and/or selectively suspend participation or Carequality may suspend the agency if the agency is unable to comply with the change(s) pending continued efforts to reach a resolution.
6.Non-Discrimination. With respect to Implementers and Implementers’ Carequality Connections that have implemented the same Carequality Use Case as Organization and Organization’s End Users, neither Organization nor its End Users shall unfairly or unreasonably limit exchange or interoperability with such Implementers or their Carequality Connections. Each Carequality Use Case’s Implementation Guide will provide specific requirements for compliance with this requirement in the context of that Carequality Use Case.
7.Organization Autonomy. To the extent that Organization has adopted Organization Business Rules, Organization is permitted to continue acting in accordance with such Organization Business Rules, even if 23 they restrict Organization’s ability to support exchange of information with other Implementers or Carequality Connections or to meet the requirements of Section 6 above, provided that Organization applies such Organization Business Rules consistently with respect to other Implementers and Carequality Connections and the Organization Business Rules do not impose conditions that would unfairly or unreasonably limit interoperability.
8.Accountability.
a.Organization Accountability. Organization shall be responsible for any harm to Carequality, its Sponsoring Implementer, other Carequality Connections of its Sponsoring Implementer, other Implementers and their Carequality Connections which harm is caused by Organization’s, or its End Users, acts and omissions. Organization shall not be responsible for the acts or omissions of any Implementer or other Carequality Connection. Notwithstanding any provision in these Carequality Connection Terms to the contrary, Organization shall not be liable for any act or omission if a cause of action for such act or omission is otherwise prohibited by Applicable Law. This section shall not be construed as a hold harmless or indemnification provision.
b.Carequality Accountability. Organization will not hold Carequality, or anyone acting on its behalf, including but not limited to members of the Steering Committee, Advisory Council, Dispute Resolution Panel or any work group, or subcommittee, of any of these or Carequality’s contractors, employees or agents liable for any damages, losses, liabilities or injuries arising from or related to these Carequality Connection Terms. This section shall not be construed as an indemnification provision.
c.Limitation on Liability. Notwithstanding anything in these Carequality Connection Terms to the contrary excluding section 8.4, in no event shall Carequality’s, Sponsoring Implementer’s or Organization’s total liability to each other and all third party beneficiaries arising from or relating to these Carequality Connection Terms exceed an aggregate amount equal to three million dollars ($3,000,000), whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theories of liability, even if the entity whose conduct creates the liability has been apprised of the possibility or likelihood of such damages occurring.
d.Federal agencies. Notwithstanding any provision of these Carequality Connection Terms to the contrary, if Organization is a U.S. federal agency nothing in these Carequality Connection Terms shall be construed to limit in any way the sovereign immunity enjoyed by federal agencies or to limit the ability of the federal agency to seek to recover damages from Carequality, Implementers, or their Carequality Connections.
9.Dispute Resolution.
a.Organization acknowledges that it may be in its best interest to resolve Disputes between or among Organization, or its End Users, and Carequality, other Implementers or their Carequality Connections through a collaborative, collegial process rather than through civil litigation. Organization has reached this conclusion based upon the fact that the legal and factual issues involved in these Carequality Connection Terms are unique, novel, and complex and limited case law exists which addresses the legal issues that could arise from these Carequality Connection Terms or the Enforcing Agreement. Organization acknowledges that Carequality has adopted a Dispute Resolution Process which Organization agrees to follow. Further, Organization agrees to use its best efforts to resolve Disputes with Carequality, other Carequality Connections and their Implementers or with another Implementer directly if the Dispute does not involve another Implementers’ Carequality Connections, through discussions with those involved in such Dispute before even submitting the Dispute to its Implementer pursuant to the Dispute Resolution 24 Process. If Organization requires assistance in identifying contact information for another Carequality Connection, or an Implementer, it shall seek that assistance from Sponsoring Implementer.
b.If, despite using its best efforts, Organization cannot resolve any Dispute through discussions with the other parties involved, then Organization will notify the Sponsoring Implementer of the Dispute and request that the Implementer initiate the Dispute Resolution Process. Organization is required to undertake these efforts in the event of a Dispute before seeking any other recourse.
c.Notwithstanding the above, Organization may be relieved of its obligation to participate in the Dispute Resolution Process if Organization (i) believes that another Implementer’s or Carequality Connection’s act or omission will cause irreparable harm to Organization or another organization or individual (e.g. Implementer, Carequality Connection, End User or consumer) and (ii) pursues immediate injunctive relief against such Implementer or Carequality Connection in a court of competent jurisdiction. Organization must inform its Sponsoring Implementer of such action within two business days of filing for the injunctive relief and of the result of the action within 24 hours of learning of same. If the injunctive relief sought is not granted and Organization chooses to pursue the Dispute, the Dispute must be submitted to the Organization’s Sponsoring Implementer in accordance with the Dispute Resolution Process so that the Sponsoring Implementer can determine next steps.
10.Cooperation. Organization understands and acknowledges that numerous activities with respect to Carequality shall likely involve its Sponsoring Implementer, other Implementers and their Carequality Connections, employees, agents, and third party contractors, vendors, or consultants. To the extent not legally prohibited, Organization shall: (a) respond in a timely manner to inquiries from Carequality, its Sponsoring Implementer, other Implementers or their Carequality Connections about possible issues related to the Carequality Use Case(s) in which Organization is involved; (b) collaboratively participate in discussions coordinated by Carequality to address differing interpretations of requirements set forth in an applicable Implementation Guide(s) prior to pursuing the Dispute Resolution Process; (c) make reasonable efforts to notify its Sponsoring Implementer when persistent and widespread connectivity failures are occurring with its Sponsoring Implementer or with other Implementers or their Carequality Connections, so that all those affected can investigate the problems and identify the root cause(s) of the connectivity failures; (d) work cooperatively, including without limitation facilitating contact with other Implementers or their Carequality Connections, to address the root cause(s) of persistent and widespread connectivity failures; (e) subject to Organization’s right to restrict or condition its cooperation or disclosure of information in the interest of preserving privileges in any foreseeable dispute or litigation or protecting Organization’s confidential information, provide reasonable information to others in support of collaborative efforts to resolve issues or Disputes; (f) provide information and other relevant assistance to Sponsoring Implementer in connection with this Section 10; and (g) subject to Organization’s right to restrict or condition its cooperation or disclosure of information in the interest of preserving privileges in any foreseeable litigation or protecting Organization’s Confidential Information, provide reasonable information to aid the efforts of Organization’s Sponsoring Implementer, other Implementers or their Carequality Connections to understand, contain, and mitigate an Adverse Security Event, at the request of such Implementer or Carequality Connection. In no case shall Organization be required to disclose individually identifiable health information in violation of Applicable Law. In seeking another’s cooperation, Organization shall make all reasonable efforts to accommodate the other’s schedules and reasonable operational concerns.
11.Adverse Security Event Reporting.
a.As soon as reasonably practicable, but no later than five (5) business days after determining that an Adverse Security Event has occurred and is likely to have an adverse impact on an Implementer(s) 25 or Carequality Connection(s), Organization shall provide Sponsoring Implementer with notification of the Event through the notification protocol specified by Sponsoring Implementer. The notification should include sufficient information for Sponsoring Implementer to understand the nature of the Adverse Security Event and identify other Implementers or Carequality Connections that may be impacted by the Adverse Security Event. Notwithstanding the foregoing, Organization agrees that (a) within one (1) hour of learning that an Adverse Security Event occurred and that such Event may involve an Implementer or Carequality Connection that is a Federal agency, it shall alert the Federal agency in accordance with the procedures and contacts provided by such Federal agency, and (b) that within twenty-four (24) hours after determining that an Adverse Security Event has occurred and is likely to have an adverse impact on an Implementer(s) or Carequality Connection(s) that is a Federal agency, Organization shall provide a notification to the Federal agency in accordance with the procedures and contacts provided by such Federal agency, and Organization shall copy Sponsoring Implementer and Carequality on any such notification
b.This Section 11 shall not be deemed to supersede Organization’s obligations (if any) under relevant security incident, breach notification or confidentiality provisions of Applicable Law. Compliance with this Section 11 shall not relieve Organization of any other security incident or breach reporting requirements under Applicable Law including, but not limited to, those related to consumers.
12.Acceptable Use. Carequality has adopted permitted purposes for the use of the Carequality Elements that are specifically set out in the Implementation Guide for each Carequality Use Case. Organization shall only engage in exchange activities through the Carequality Elements for permitted purposes as defined in the Implementation Guides. If Organization does not comply with these permitted purposes or other applicable provisions in the Implementation Guide, Carequality may exercise its right to suspend Organization in accordance with Section 3 of these Carequality Connection Terms. If Organization is not a Covered Entity or Governmental entity, then (i) Organization may only use the interoperability available through Carequality to transmit or receive information on behalf of its End Users and not on its own behalf; and (ii) Organization will not re-use, re-disclose, aggregate, de-identify or sell any information transacted by its End Users for its own benefit unless its respective Carequality Connections or End Users have given Organization the explicit written authority to do so.
13.Confidentiality.
a.Organization agrees to use any Confidential Information that it obtains solely for the purpose of performing its obligations under the Carequality Connection Terms, and for no other purpose. Organization will disclose the Confidential Information it receives only to its employees and agents who require such knowledge and use in the ordinary course and scope of their employment or retention, and are obligated to protect the confidentiality of such Confidential Information. In the event Organization has any question about whether information and/or materials it receives is Confidential Information, it shall treat the same as if it were Confidential Information. For the avoidance of doubt, the Carequality Elements that are not labeled as Confidential Information by the Carequality Steering Committee are not confidential and are not covered by the provisions of this section.
b.Organization may be given access to all or a portion of the Carequality Directory by Sponsoring Implementer. The Carequality Directory is intended to be used by Implementers, Carequality Connections, and End Users to create and maintain operational connectivity under the Carequality Elements, including the development and maintenance of effective user interfaces for relevant systems. Organization agrees that it will only use and disclose information contained in the Carequality Directory as necessary to advance the intended use of the Carequality Directory. For example, Organization is permitted to disclose information contained in the Carequality Directory to the personnel of its EHR vendor who are engaged in assisting Organization with establishing and 26 maintaining connectivity via the Carequality Elements. Further, Organization shall not use the information contained in the Carequality Directory for marketing or any form of promotion of its own products and services, unless this use and disclosure is part of an effort by Organization to expand, or otherwise improve, connectivity via the Carequality Elements, and any promotion of Organization’s own products or services is only incidental to the primary purpose. In no event shall Organization use the information contained in the Carequality Directory in a manner that should be reasonably expected to have a detrimental effect on another Implementer, Carequality Connection, End User, or other individual or organization.
14.Contributions; IP Rights; Ownership of Materials; License. Organization acknowledges that any copyrights, patent rights, trade secrets, trademarks, service marks, trade dress, and other intellectual property in or related to Carequality including, but not limited to, these Carequality Connection Terms, Implementation Guides, Carequality Elements, Carequality Policies, related materials, information, reports, processes (the “Carequality IP”), are protected under applicable United States law. Recognizing that the Carequality IP is the work product of the membership of Carequality, and that Carequality is the collective representative of all Implementers’ interests, these intellectual property rights are asserted and held by Carequality in its capacity as the representative of its total membership and licensed to Organization hereunder. This does not apply to Carequality trademarks, service marks or trade dress rights, which are discussed separately below. Organization is encouraged to provide Contributions to Carequality and understands that Carequality must obtain certain rights in such Contributions in order to include the Contribution in Carequality IP. Notwithstanding any provision of these Carequality Connection Terms to the contrary, if Applicant is a U.S. federal agency and considers certain information to be the intellectual property of the U.S. government, the agency shall not contribute such information unless and until it has entered into a written agreement with Carequality for the transfer or license of such intellectual property rights.
a.With respect to each Contribution, Organization represents that: (a) no information in the Contribution is confidential; (b) Carequality may freely disclose the information in the Contribution; and (c) to the best of its knowledge, such Contribution is free of encumbrance as it relates to the intellectual property rights of others.
b.To the extent that a Contribution or any portion thereof is protected by copyright or other rights of authorship, Organization grants a perpetual, irrevocable, non-exclusive, royalty-free, world-wide, sublicensable right and license to Carequality under all such copyrights and other rights in the Contribution to copy, modify, publish, display and distribute the Contribution (in whole or part) and to prepare derivative works based on or that incorporate all or part of such Contribution, in each case, for the purpose of incorporating such Contributions into the Carequality IP. Organization also grants Carequality the right: (a) to register copyright in Carequality’s name any Carequality IP even though it may include Contributions; and (b) to permit others, at Carequality’s sole discretion, to reproduce in whole or in part the resulting Carequality IP.
c.Organization shall identify to Carequality, through the issuance of a letter of assurance, any patents or patent applications which Organization believes may be applicable to any Carequality Element specifically including, but not limited to, any Implementation Guide. This assurance shall be provided without coercion and shall take the form of a general disclaimer to the effect that the patent holder will not enforce any of its present or future patent(s) that would be required to implement or use the Carequality Element relevant to any person or entity using the patent(s) to comply with such Carequality Element
d.Sponsoring Implementer grants to Organization a perpetual, irrevocable, non-exclusive, royalty-free, world-wide, right and license to use, the Carequality IP for the purpose of enhancing interoperability (including through the modification of its products and services to implement the Carequality Use Cases and conform to the Implementation Guides) Organization and its End Users have and will continue to possess the usage rights to the Carequality IP as authorized by Sponsoring Implementer’s Carequality Connected Agreement and these Carequality Connection Terms. Organization retains ownership of any Contribution it provides, granting only the licenses described in this Section. Nothing shall prevent Organization from (i) changing Organization’s technology, services or any Contribution in any way, including to conform to the requirements of an Implementation Guide or (ii) making any change available to any other person or entity. Notwithstanding anything to the contrary in the Carequality Connection Terms, all right, title, and interest in any change to Organization’s technology, services or any Contribution will accrue to the benefit of, and be owned exclusively by, Organization
e.The trademarks, services marks, trade dress, business names, company names, and logos owned by Carequality, including without limitation CAREQUALITY and all Carequality logos, (collectively, the “Carequality Marks”) are an important part of maintaining the strength and reputation of Carequality and its efforts to enable the interoperable exchange of healthcare information. Organization may not use the Carequality Marks to brand any of Organization’s products or services and may not incorporate any Carequality Marks in any of Organization’s domain names except as provided in Carequality’s published guidelines on use of trademarks. Organization shall not apply for registration of any trademark, service mark, trade dress, business name or company name, or logo that incorporates any Carequality Mark or any element confusingly similar to any Carequality Mark. In connection with any non-trademark, descriptive use of Carequality Marks, Organization will use the registration symbol ® or the trademark or service mark symbols, TM or SM, as more fully set out in the Carequality guidelines on use of trademarks, and indicate in the text that the Carequality Mark used “is the registered trademark of Carequality,” “is the trademark of Carequality,” or “is the service mark of Carequality,” respectively.
15.Disclaimers. Organization acknowledges that Implementers and Carequality Connections may be added to or removed from the Carequality Directory at any time; therefore, Organization may not rely upon the inclusion in the Carequality Directory of a particular Implementer or Carequality Connection. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL CAREQUALITY OR ORGANIZATION BE LIABLE TO EACH OTHER OR ANY THIRD PARTY BENEFICIARY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORIES OF LIABILITY, EVEN IF THE ENTITY WHOSE CONDUCT CREATES THE LIABILITY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. NO PROVISION OF THE CCA, OR THE CAREQUALITY CONNECTION TERMS, SHALL BE CONSTRUED AS AN INDEMNIFICATION REQUIREMENT FOR ANY IMPLEMENTER OR CAREQUALITY CONNECTION, INCLUDING BUT NOT LIMITED TO A FEDERAL AGENCY, THAT IS PRECLUDED BY LAW FROM INDEMNIFYING THIRD PARTIES.
16.Miscellaneous/General
a.Amendment. These Carequality Connection Terms may be amended by Carequality from time to time, subject to the requirements of Section 21.4 of the CCA. Sponsoring Implementer will inform Organization of such amendments along with their effective date, which shall be at least thirty (30) days after the date on which Sponsoring Implementer informs Organization of such amendments.
b.Third Party Beneficiary. Carequality, other Carequality Connections of the Sponsoring Implementer, other Implementers and their Carequality Connections shall be deemed third party beneficiaries of these Carequality Connection Terms for purposes of enforcing Organization’s compliance with these Carequality Connection Terms.
Exhibit B NRLS AGGREGATOR CUSTOMER TERMS AND CONDITIONS OF USE OF SURESCRIPTS' NATIONAL RECORD LOCATOR SERVICE
Terms and Conditions. By accessing the National Record Locator Service ("NRLS") through software licensed from eClinicalWorks, LLC ("eCW"), the entity accessing or providing access to the Surescripts network ("eCW Customer") agrees to the following terms and conditions of use of the Surescripts network and NRLS (these "Terms").At the direction of Surescripts, or as may be necessitated by eCW's agreement with Surescripts, eCW may modify or supplement these Terms from time to time and such modified or supplemented Terms shall become effective at the time set forth in such modification or supplement.
1.Definitions
- a."Applicable Law" means any and all applicable federal, state, local, common law, rules, regulations, directives, and guidelines, including but not limited to the applicable provisions of the following: the Health Insurance Portability and Accountability Act ("HIPAA") and related regulations; the Health Information Technology for Economic and Clinical Health Act ("HITECH") and related regulations; the Anti-Kickback provisions of the Social Security Act and related regulations; and; state and federal pharmacy laws and regulations.
- b."Confidential Information" means all confidential and/or proprietary information disclosed to eCW Customer by Surescripts, including products, software, materials, processes, ideas, and techniques (whether or not reduced to writing): (i) which are not generally known in the relevant industry or trade; (ii) which afford possessors of the information a commercial advantage over others who do not have such information; (iii) which are considered trade secrets under Applicable Law; and/or (iv) which, if utilized or disclosed by eCW Customer, would place Surescripts at a competitive or business disadvantage; these Terms; employee, customer and patient information and PHI; accounting data; statistical data; development and marketing plans; strategies; forecasts; any and all information and documentation deemed confidential or a trade secret under any federal, state, or local statute or regulation; and the like, whether or not tangibly embodied in a document, model, specimen, computer storage device, or other physical object; and any information obtained or accessed by eCW Customer, if not otherwise described above, is of a nature that a reasonable person would believe it to be confidential.
- c."Data Source" means a (1) pharmacy, pharmacy chain, or entity that aggregates information on behalf of pharmacies, or other similar entity which has entered into a written agreement with Surescripts to allow access through the Surescripts network to information in its possession, or (2) a pharmacy benefit manager, health benefit payor or administrator, or other similar entity which has entered into a written agreement with Surescripts to allow access through the Surescripts network to information in its possession.
- d."Surescripts network" means the Surescripts proprietary technology for a secure, nationwide, interoperable health information infrastructure, interfaces, functionality, and transaction maps made available by Surescripts to eCW Customer, through eCW's software, pursuant to this Addendum, as they may be further modified or developed by Surescripts from time to time.
2.Confidentiality. eCW Customer shall, and shall ensure that its End Users shall, (i) maintain the Confidential Information in strict confidence; (ii) except as expressly permitted herein, not, directly or indirectly, divulge, reveal, report, publish, transfer, or disclose, or permit to be divulged, revealed, reported, published, transferred, or disclosed, for any purpose whatsoever any of the Confidential Information; (iii) use at least the same degree of care to maintain the secrecy of the Confidential Information as it uses in maintaining the secrecy of its own confidential information; and (iv) use the Confidential Information only for the purposes of NRLS.
3.Adherence to Applicable Law. eCW Customer shall, and shall ensure that its End Users shall, comply with Applicable Law, including ensuring that all necessary patient consents and authorizations have been obtained.
IV. Compliance with Law. In order to access and use NRLS, eCW Customer and its End Users must comply at all times with HIPAA, the Privacy Rule and Applicable Law. eCW Customer acknowledges that Applicable Law imposes additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. eCW Customer (on behalf of its End Users) is solely responsible for ensuring that Patient Records may properly be disclosed through NRLS in compliance with Applicable Law. In particular, eCW Customer shall:
- a.not (and ensure the End Users do not) disclose any Patient Records through NRLS that are subject to any restriction on use or disclosure (arising from eCW Customer's or End User's agreement with the patient);
- b.not (and ensure End Users do not) disclose Patient Records through NRLS in violation of Applicable Law in response to any query through NRLS; and
- c. obtain (and ensure End Users obtain) patient consent as may be required by Applicable Law prior to any query of record locations or retrieval of Patient Records through NRLS.
5.eCW Customer is solely responsible (i) to provide patients with all legally required notices of their use of NRLS to obtain and disclose patient records, (ii) to facilitate patient requests to opt out of NRLS; (iii) and for obtaining any necessary patient consents or authorizations. Surescripts assumes no responsibility for obtaining, verifying or documenting that patient consent was appropriately captured according to state and federal laws for the query of record locations or retrieval of Patient Records through NRLS. Surescripts may perform a reasonable audit of eCW Customer to ensure its compliance with Applicable Law and/or these Terms when using NRLS.
6.Patient Opt-Out
- a.Education of Opt Out Rights. At the first presentation of a patient to eCW Customer or its End Users following implementation of NRLS, eCW Customer shall inform the patient that his or her information may be shared through NRLS and of his or her right to opt out of NRLS. Surescripts shall provide general information regarding NRLS and a patient's right to Opt-Out through an internet website available through the Surescripts homepage at www.Surescripts.com.
- b.Opt-Out Methods. If a patient does not want his or her information shared through NRLS, he or she may Opt-Out of NRLS using one of the methods set forth in (i)-(iv) below:
- i.A patient may opt out of electronic exchange at the provider level only. In such case, the patient's information will still be generally available through NRLS. For the avoidance of doubt, this method of opt-out is not managed by Surescripts, and eCW shall prevent the sharing of information for the patient by not making them discoverable by Surescripts;
- ii.eCW, eCW Customer, or End User may contact Surescripts on the patient's behalf to opt that patient out; or
- iii.Any of the Data Sources may contact Surescripts on the patient's behalf to opt that patient out.
- iv.In conjunction with any of the methods above, eCW Customer shall have the right to add a consent flag in the ADT/RESTful API in those circumstances in which the patient has opted out or opted in.
- 1.The Opt-Out procedure and eCW Customer's and its End Users' associated responsibilities are specifically set forth in the Surescripts' NRLS Policies and Procedures. eCW Customer shall, and shall ensure that its End Users shall, comply with its responsibilities associated with Opt-Out as set forth in the Surescripts NRLS Policies and Procedures.
- c.Result of Patient Opt Out. If a patient has opted out of NRLS at the provider level only, any information available from other NRLS participants will still be available through NRLS. If the eCW, eCW Customer, or its End Users directs Surescripts to opt the patient out of NRLS completely, Surescripts shall return a "patient not found" response for any queries related to that patient (Surescripts does not support a "break-the-glass" functionality).
7.Use of Information Obtained though NRLS. eCW Customer and End Users may access and use Patient Records obtained through NRLS only as permitted in these Terms .For purposes of clarity, neither eCW Customer nor End Users shall use Patient Records obtained through NRLS to create or produce a record of another participant from data of another participant in order to furnish copies of a record in response to subpoena or otherwise.
- a.Limited to Treatment Purposes. eCW Customer shall ensure that information obtained through NRLS is used only for "Treatment" purposes as defined by HIPAA. eCW Customer does not (and shall ensure that its End Users do not) use NRLS for any other purpose.
- b.No Commercial or Competitive Use. eCW Customer shall not use NRLS or the Surescripts' network for commercial or competitive purposes, including aggregating or comparing data with that of other users.
8.Additional Limitations of NRLS. Some state laws restrict the disclosure of all or certain PHI and other "sensitive information" (as defined by Applicable Law, hereinafter referred to as "Sensitive Information") related to a patient without such patient's consent or authorization. eCW Customers and End Users are responsible for obtaining all necessary patient consents or authorizations prior to disclosing Sensitive Information through NRLS. Pursuant to the foregoing, eCW Customer acknowledge and agrees (on its own behalf and on behalf of all End Users) to not disclose through NRLS (i) Sensitive Information without the patient's consent and/or authorization; and (ii) any PHI subject to a patient requested restriction (as provided by 45 CFR 164.522).In addition, Surescripts may filter out patient location data associated with behavioral health, substance abuse treatment and/or other Sensitive Information from information received by Surescripts from connected pharmacies and pharmacy benefit managers. eCW Customer hereby releases and holds harmless, and shall cause each of its End Users to release and hold harmless, Surescripts from any liability, cause of action, or claim related to the transmission of Patient Records, including but not limited to, information referenced in (i) and (ii) above, through NRLS, except for any such liability, cause of action, or claim resulting from Surescripts' acts or omissions.
9.Feedback. Surescripts, at its sole option, provides information sessions for the participants in the Surescripts network and/or NRLS. Accordingly, if eCW Customer or any End User provides any ideas, advice, recommendations, evaluations, representations of needs, proposals, improvements, or the like relating to the Surescripts network or NRLS ("NRLS Feedback"), eCW Customer hereby irrevocably and unconditionally grants and assigns, and shall grant and assign (and ensures End Users shall assign), to Surescripts all right, title and interest, including all intellectual property rights, in and to all such NRLS Feedback.
10.LIMITATION OF LIABILITY. AS BETWEEN THE PARTIES, ECW CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL PATIENT CARE DECISIONS OR TREATMENT PROVIDED RESULTING FROM OR INVOLVING THE USE OF NRLS. ECW CUSTOMER MAY NOT BRING ANY CLAIM OR CAUSE OF ACTION AGAINST SURESCRIPTS ARISING FROM PATIENT CARE RENDERED OR WITHHELD BASED ON THE USE OF NRLS AND SHALL REQUIRE ITS END USERS TO AGREE BY CONTRACT THAT THE END USERS MAY NOT BRING ANY CLAIM OR CAUSE OF ACTION AGAINST SURESCRIPTS ARISING FROM PATIENT CARE RENDERED OR WITHHELD BASED ON THE USE OF NRLS.
11.Emergency Suspension. Notwithstanding anything to the contrary herein, Surescripts retains the right to immediately suspend access (with no notice or cure period) to the Surescripts network by eCW Customer or any End User in the event that Surescripts perceives (in its reasonable discretion) there to be a patient safety concern, violation of Applicable Law, or unauthorized use of the Surescripts network.
12.eCW Customer Indemnity. eCW Customer shall defend, indemnify, and save harmless Surescripts and the Data Sources from and against any and all loss, damage, or expense arising out of claims asserted against Surescripts by third parties to the extent arising out of any breach of these Terms, any use (or misuse) by eCW Customers or End Users of data or information received through the Surescripts network, or any transmission of data or information through the Surescripts network by eCW Customers or End Users.
13.Third Party Beneficiary. Surescripts shall be a third-party beneficiary of these Terms.
14.I represent that I have full authority to accept this Addendum on behalf of Customer. On behalf of Customer, I have read and now accept the terms of this Addendum.
15.Customer acknowledges that data conversion and transmission is subject to the likelihood of human and machine errors, omissions, delays and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. eClinicalWorks shall not be liable for any such errors, omissions, delays, or losses. Customer is responsible for adopting reasonable measures to limit the impact of such problems, including adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Customer understands and agrees that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to computer systems, networks, and any and all information stored therein. All information transmitted and received through the Internet is subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. eClinicalWorks and its suppliers shall not be responsible for any adverse consequences whatsoever of Customer's or any End-User's connection to or use of the Internet, and shall not be responsible for any use by Customer or any End User of an Internet connection in violation of any law, rule, or regulation or any violation of the intellectual property rights of another.
Addendum for Cerner Multum
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | Cerner Multum, Inc is the company providing this product. Customer hereby agrees to Cerner Multum’s End-User License Agreement in Exhibit A. |
| Functionality | Customer desires to add connectivity to the Cerner service. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
Cerner End-User License Agreement
This Service is a service provided to you by Cerner Multum, Inc. (“Multum”). This Service and eClinicalWorks products are separate products provided by separate entities. The Services is intended for use by consumer in the United States.
Every effort has been made to ensure that the information provided in the Service is accurate, up-to-date, and complete, but no guarantee is made to that effect. In addition, the drug information contained herein my be time sensitive.
The Service does not endorse drugs, diagnose patients, or recommend therapy. The Service is an informational resource designed to assist licensed healthcare practitioners in caring for their patients and provide consumers with drug specific information. Healthcare practitioners should use their professional judgement in using the information provided. The Service is not a substitute for the care provided by licensed healthcare practitioners and consumers are urged to consult with their healthcare practitioner in all instances. The absence of a warning for a given drug or drug combination in no way should be construed to indicate that the drug or drug combination is safe, effective, or appropriate for any given patient.
Multum does not assume any responsibility for any aspect of healthcare administered or not administered with the aid of information the Services provides.
Disclaimer of WarrantiesTHE END-USER ACKNOWLEDGES THAT THE SERVICE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR WARRANTIES WHICH MAY NOT BE DISCLAIMED AS A MATTER OF LAW, MULTUM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR NATURE OF THE CONTENT OF THE SERVICE, WARRANTIES OF TITLE, NONINFRINGEMEN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
IN ADDITION, WITHOUT LIMITING THE FOREGOING, THE SERVICE HAS BEEN DESIGNED FOR USE IN THE UNITED STATES ONLY AND COVERS THE DRUG PRODUCTS USED IN PRACTICE IN THE UNITED STATES. MULTUM PROVIDES NO CLINICAL INFORMATION OR CHECKS FOR DRUGS NOT AVAILABLE FOR SALE IN THE UNITED STATES AND CLINICAL PRACTICE PATTERNS OUTSIDE THE UNITED STATES MAY DIFFER SUBSTANTIALLY FROM INFORMATION SUPPLIED BY THE SERVICE. MULTUM DOES NOT WARRANT THAT USES OUTSIDE THE UNITED STATES ARE APPROPRIATE.
The End-User acknowledges that updates to the Service are at the sole discretion of Multum. Multum makes no representations or warranties whatsoever, express or implied, with respect to the compatibility of the Service, or future releases thereof, with any computer hardware or software, nor does Multum represent or warrant the continuity of the features or the facilities provided by or through the Service as between various releases thereof.
Any warranties expressly provided herein do not apply if: (i) the End-User alters, mishandles, or improperly uses, stores, or installs all, or any part, of the Service, (ii) the End-User uses, stores, or installs the Service on a computer system which fails to meet the specifications provided by Multum, or (iii) the breach of warranty arises out of or in connection with acts or omissions of persons other than Multum.
Assumption of Risk, Disclaimer of Liability, IndemnityTHE END-USER ASSUMES ALL RISK FOR SELECTION AND USE OF THE SERVICE AND CONTENT PROVIDED THEREON. MULTUM SHALL NOT BE RESPONSIBLE FOR ANY ERRORS, MISSTATEMENTS, INACCURACIES OR OMISSIONS REGARDING CONTENT DELIVERED THROUGH THE SERVICE OR ANY DELAYS IN OR INTERRUPTIONS OF SUCH DELIVERY.
THE END-SUER ACKNOWLEDGES THAT MULTUM: (A) HAS NO CONTROL OF OR RESPONSIBILITY FOR THE END-USER’S USE OF THE SERVICE OR CONTENT PROVIDED THERON, (B) HAS NO KNOWLEDGE OF THE SPECIFIC OR UNIQUE CIRCUMSTANCES UNDER WHICH THE SERVICE OR CONTENT PROVIDED THERON MAY BE USED BY THE END-USER, (C) UNDERTAKES NO OBLIGATION TO SUPPLEMENT OR UPDATE CONTENT OF THE SERVICE, AND (D) HAS NO LIABILITY TO ANY PERSON FOR ANY DATA OR INFORMATION INPUT ON THE SERVICE BY PERSONS OTHER THAN MULTUM.
MULTUM SHALL NOT BE LIABLE TO ANY PERSON (INCLUDING BUT NOT LIMITED TO THE END-USER AND PERSONS TREATED BY OR ON BEHALF OF THE END-USER) FOR, AND THE END-USER AGREES TO INDEMNIFY AND HOLD MULTUM HARMLESS FROM ANY CLAIMS, LAWSUITES, PROCEEDINGS, COSTS, ATTORNEYS’ FEES, DAMAGES OR OTHER LOSSES (COLLECTIVELY, “LOSSES”) ARISING OUT OF OR RELATING TO (A) THE END-USER’S USE OF THE SERVICE OR CONTENT PROVIDED THEREON OR ANY EQUIPTMENT FURNISHED IN CONNECTION THEREWITH AND (B) ANY DATA OR INFORMATION INPUT ON THE SERVICE BY END-USER, IN ALL CASES INCLUDING BUT NOT LIMITED TO LOSSES FOR TORT, PERSONAL INJURY, MEDICAL MALPRACTICE OR PRODUCT LIABILITY. FURTHER, WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL MULTUM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, OR DO TIME, EVEN IF MULTUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE INFORMATION CONTAINED WITHIN THE SERVICE IS INTENDED FOR USE ONLY (AS AN INFORMATIONAL TOOL AND END-USERS ARE URGED TO CONSULT WITH A PHYSICIAN OR) (BY PHYSICIANS AND OTHER HEALTHCARE PROFESSIONAL REGARDING THEIR SPECIFIC SITUATION FOR DIAGNOSIS)(PROFESSIONALS WHO SHOULD RELY ON THEIR CLINICAL DISCRETION AND JUDGEMENT IN DIAGNOSES AND TREATMENT). AS BETWEEN THE END-USER AND MULTUM, THE END-USER HEREBY ASSUMES FULL RESPONSIBILITY FOR INSURING THE APPROPRIATENESS OF USING AND RELING UPON THE INFOMRATION IN VIEW OF ALL ATTENDANT CIRCUMSTANCES, INDICATIONS, OR CONTRAINDICATIONS.
Liability of Multum to the End-UserUnder no circumstances shall Multum be liable to the End-User or any other person for any direct, indirect, exemplary, special or consequential damages arising out of or relating to the End-User’s use of or inability to use the Service or the content of the Service provided thereon or any equipment furnished in connection therewith. Multum’s total maximum cumulative liability hereunder in connection with this Agreement, whether arising under contract or otherwise, are limited to the fees received by Multum under this Agreement specifically relating to the End-User’s use of the service or product which is the subject of the claim.
Addendum For CHADIS Connectivity
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Functionality Customer desires to add connectivity to the CHADIS service. |
| Prerequisite | Customer must enter into a separate agreement with CHADIS to enable this functionality. |
| Acknowledgement | By enabling this functionality, Customer is agreeing for data to be exchanged from Customer to CHADIS. In facilitating the provision of this data to CHADIS, eClinicalWorks is acting at the direction of Customer, and Customer assumes all responsibility for the data provided to CHADIS. |
| Disclaimer | Chadis and eClinicalWorks are independent entities with no claim to the other’s trademarks. |
| Fees and Payment | All fees and payment shall be handled between CHADIS and Customer. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with CHADIS’ services included in this Addendum. |
| WARRANTIES | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
Addendum For Cognos Corporation
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | Cognos Corporation is the company providing this product. Customer hereby agrees to Cognos End-User License Terms in Exhibit A. |
| Functionality | Customer desires to add connectivity to the Cognos service. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
Cognos End-User License Terms
Customer has installed, accessed, or downloaded a Cognos software product (“Software”). Your use of this product is governed by the following terms. All references to COGNOS are to COGNOS INCOIRPORATED and its authorized subsidiaries and distributors worldwide. For more information concerning COGNOS contact the organization providing you this software or visit the COGNOS website at www.cognos.com.
1.General. These terms govern the license by you of this COGNOS Software program, including all related user manuals and documentation, whether provided to you in physical or electronic form.
2.License. COGNOS grants you a non-exclusive, non-transferable license to use the Software for the purpose(s) for which it was provided to you. Any upgrades or new release of the Software is also subject to the provisions of this Addendum. You will not distribute or make the Software available to any other party.
3.Support. Support is available through the organization that provided you with the Software.
4.Proprietary Rights. All title in and rights to the Software (including any copyrights) remains exclusively with COGNOS. The rights of COGNOS are protected by local laws and International treaties. You will not decompile, disassemble, or otherwise reverse engineer the Software.
5.Warranty. COGNOS warrants that: (a) for a period of thirty (30) days following the initial delivery/download/access of the Software, or of any new release of the Software, to or by you, the Software will perform in conformity with its related documentation, and (b) the media on which the Software is provided, if applicable, is free from defects in materials and workmanship under normal use. Subject to applicable law, all other warranties or conditions express, implied, or otherwise, are excluded. Your only remedy against COGNOS if this warranty is breached will be, at the option of COGNOS: (a) to repair or replace the Software or (b) to refund the amounts paid in respect of the defective Software. This remedy is void is you misuse the Software contrary to its related documentation.
6.Limitation of Liability. COGNOS will not be liable to you for any special, indirect, incidental, consequential, or exemplary damages, including costs or legal expenses, in connection with the supply, use of performance of the Software, even if it is aware of the possibility of the occurrence of such damages. In certain jurisdictions the foregoing limitation may not be effective, in which case the applicable law will prevail.
7.Intellectual Property Indemnification. Cognos will indemnify, defend, and hold you harmless against any claims, legal actions, losses and other expenses arising out of or in connection with any claims that the Software infringes or violates any intellectual property right of any third party (“Claim”), on the condition that COGNOS has sole control of the defense and negotiations for its settlement or compromise. The sole obligation of COGNOS to you in this regard will be to (a) obtain for you the right to use the Software, or (b) replace or modify such Software so this it is no longer subject to a Claim, but performs the same functions equivalent manner.
8.Termination. If you breach any of these terms, COGNOS may terminate your license to use the Software and on receipt of notice to that effect from COGNOS, you will destroy all copies of the software in your possession and purge it from your system.
9.Export Controls. The Software may not be downloaded, transmitted, or otherwise exported or reexported except in compliance with applicable statutes or regulations relating to the country of destination, or to the users or the use of the Software. By downloading or using this Software you are representing and warranting that you are not located in, under the control of, or a national or resident of any such embargoed country or on any such denial list. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export, or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law.
10.U.S. Government Restricted Rights. The Software provided to the government of the United States of America, its agencies or instrumentalities (“U.S. Government’) is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations that provide COGNOS with the same or greater protection. The manufacturer of the Software is Cognos Incorporated, 3755 Riverside Dr., Ontario, Canada.
11.Applicable Law. This Addendum, and any matters relating to it, will be governed, construed, and interpreted in accordance with he local laws applicable where you care located.
Addendum For CommonWell Health Alliance
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | CommonWell Health Alliance is the company providing this product. Customer hereby agrees to CommonWell Health Alliance’s End User Terms and Conditions in Exhibit A. |
| Fees and Payment | Customer acknowledges that eClinicalWorks reserves the right to charge a maintenance fee at any point. Customer will receive a notification 60 days prior to any charges. |
| Customer Consent | Customer hereby grants its consent to eClinicalWorks to take any and all actions, and to provide any and all information requested of eClinicalWorks, including conducting and engaging in all implementation related activities and back-loading of patient data, necessary or appropriate for eClinicalWorks to perform its obligations with respect to CommonWell or any of its affiliates and pursuant to any agreements with and between them. Customer additionally consents to the release of its identity by eClinicalWorks to CommonWell Health Alliance to be included in the marketing materials distributed by CommonWell Health Alliance. |
| Patient Consent | Customer acknowledges and agrees that it maintains sole responsibility for providing necessary privacy and disclosure notices to patients in accordance with the federal Notice of Privacy Practices and for obtaining any and all written patient consents required or necessary under the HIPAA Privacy Rule and state law in connection with Customer’s role as a CommonWell Participant and its actions in connection therewith. Customer agrees that it shall explain in sufficient detail as set forth in the required disclosure notice provided to each patient whose Health Data (as defined below in Exhibit C) may be queried and utilized hereunder the purposes of this Addendum, the manner in which such Health Data will be utilized and will obtain written consent to include the patient and his or her Health Data (and all other applicable information) in the exchange of patient health information within the CommonWell Health Alliance, regardless of whether such query is initiated within the eClinicalWorks network or by a Member outside of the eClinicalWorks network. Customer acknowledges and agrees that eClinicalWorks reserves the right to require Customer to furnish all such written patient consents upon request and to prohibit use of any Health Data in the CommonWell Health Alliance in its sole discretion unless and until all such affirmative, written patient consents have been so furnished. In the event that patient refuses to grant its consent to opt into the CommonWell Health Alliance, or otherwise requests to opt out of the CommonWell Health Alliance, Customer shall take responsibility for ensuring all Health Data applicable to the patient is not utilized hereunder and is properly secured and safeguarded. |
| Customer Prerequisites | Customer must agree to the separate (i) CommonWell Health Alliance End user Terms and Conditions (Exhibit A below) and (ii) the CommonWell Health Alliance Data Security and Privacy Policy (Exhibit B below). |
| Treatment Purposes | Customer represents and warrants that its role as a CommonWell Participant hereunder is solely for purposes of treatment as defined in 45 C.F.R. §164.501 and that any and all of its actions as a CommonWell Participant shall be for this purpose. In connection with the foregoing, Customer understands and agrees that it is participating in the query based patient document exchange to facilitate the production, transmission and dissemination of documents and records to all applicable parties in its role as a CommonWell Participant for the general purpose of the provision, coordination or management of health care and related services. Customer represents that it, and each of its Users, is solely responsible for any decisions or actions taken involving patient care or patient care management, whether or not those decisions or actions were made or taken using information received through the CommonWell Health Alliance by virtue of its role as a CommonWell Participant. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost or expense arising out of or in connection with this Addendum, including Customer’s role as a CommonWell Participant or otherwise pursuant any actions or inactions of Customer with respect to the CommonWell Addendum. |
| LIMITATION OF LIABILITY | CUSTOMER UNDERSTANDS THAT THE ADDENDUM AND THE UNDERLYING SERVICES ARE SUBJECT TO APPLICABLE STATUTES AND REGULATIONS, AND ARE PROVIDED ON AN “AS IS, AS AVAILABLE, WITH ALL FAULTS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ECLINICALWORKS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICE OR THE COMMONWELL HEALTH ALLIANCE. IN NO EVENT WILL ECLINICALWORKS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. |
Exhibit A- END USER TERMS AND CONDITIONS
THIS COMMONWELL HEALTH ALLIANCE (“ALLIANCE”) END USER LICENSE ADDENDUM (“EULA”) SETS FORTH THE TERMS AND CONDITIONS BETWEEN ALLIANCE AND AN AUTHORIZED USER OF ITS SERVICES (TOGETHER THE “PARTIES”).
BY ACCESSING OR USING THE SERVICES OR RESULTS OF THE SERVICES IN ANY WAY, INCLUDING WITHOUT LIMITATION, USING ALLIANCE NETWORKS, DATA OR OTHERWISE PARTICIPATING IN THE SERVICES, YOU AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A CORPORATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO AGREE TO THE EULA ON BEHALF OF SUCH ENTITY AND THAT SUCH ENTITY AND ITS AFFILIATES ALSO AGREE TO AND ARE BOUND BY THE EULA. IF YOU DO NOT HAVE SUCH AUTHORITY, OR SUCH ENTITY DOES NOT AGREE WITH THESE TERMS, YOU AND THEY MAY NOT USE THE SERVICES.The term “Authorized User” means a party that accesses or uses the Services in accordance with an authorized Use Case that has agreed to this EULA either directly or by reference with a party authorized by Alliance or an Authorized User to use this EULA as set forth in Section 2.2. Capitalized terms not otherwise defined in tis EULA are defined in Section 8 of this EULA. Authorized User understands and agrees that this EULA is a legally binding agreement between such party and the Alliance, and that Service Provider is a third-party beneficiary of the EULA.
1. Introduction. The Alliance has been established to define and promote a national infrastructure with common standards and policies with regard to its Services that enable trusted data sharing among its Members who participate in the Services, their Authorized Users, and Affiliated Networks on a nation-wide basis. In order to further the foregoing mission, Alliance has procured certain services, through its Service Provider, which is made available to Authorized Users under the terms and conditions of this EULA and terms incorporated herein by reference. Therefore, for good and valuable consideration the sufficiency of which the Parties confirm, the Parties hereby agree to the above and the following terms and conditions.
2. Required Minimum Terms.
- 2.1. Minimum Terms. If Authorized User is not an End User, Authorized User shall ensure that this EULA is incorporated in its entirety, either directly or by reference, into a legally binding agreement (“Downstream Agreement(s)”) between Authorized User and any subsequent downstream authorized user (each a “Downstream Authorized User”) before such Downstream Authorized User is allowed access to or provides access to the Services.
- 2.2 Application of this EULA. Each Downstream Authorized User and subsequent downstream authorized users that receives this EULA from an Upstream Authorized User shall be deemed the Authorized User as such term is used in this EULA and shall comply with the obligations applicable to Authorized User in this EULA.
3. Authorized User Obligations.
- 3.1 Health Data. Authorized User understands and agrees that the Services may involve the exchange of Health Data of Authorized User, and each Licensed User, and others that may submit Health Data involved in an approved Use Case, and that such Health Data may be used and disclosed by Alliance for the operation of the Services.
- 3.2 Authority and Consent. Authorized User represents and warrants that: (a) it has all rights and authority necessary to agree to and comply with the use of Health Data as provided in this EULA and applicable Use Cases, (b) all Health Data provided to Alliance and Service Provider or exchanged through the Services by Authorized User and its Licensed User, if any, is provided with the full authority and consent of the owner of such Health Data, and (c) Authorized User shall use or disclose data received from other participants in the Services only in accordance with Applicable Laws, including but not limited to obtaining any and all required consents, and only in accordance with an authorized Use Case.
- 3.3 Informed Consent. Authorized User shall provide, or ensure that reasonable and required training is provided, to End Users regarding the use of the Services in accordance with the terms and conditions of this EULA, Alliance Policies, Applicable Law, and any applicable Documentation. Authorized User shall ensure that any and all required Patient and Individual User consents are obtained, and: (a) made with full transparency and education; (b) adequate to allow for all Services approved by the Alliance; (c) made only after the patient has had sufficient time to review educational material; (d) commensurate with circumstances for why health information is exchanged; (e) not used for discriminatory purposes or as a condition for receiving medical treatment; (f) consistent with patient expectations; (g) revocable at any time, and (h) recorded in a manner that allows confirmation of the name of the person and the existence and details of the consent.
- 3.4 Limitations of Use. Authorized User understands and agrees that unless expressly authorized in Section 4 (Permissions and Limitations) of this EULA the following are prohibited: (a) marketing, selling, licensing or distributing the Services; (b) licensing or sub-license the Services to any person or entity; (c) renting, leasing, providing access to, or granting a security interest in, or otherwise transferring or attempting to transfer any rights in or to the Services; (d) removing, altering, defacing any legends, restrictions, product identifications, or copyright, trademark or other proprietary notices from the Services or the Alliance Specification, or; (e) reverse engineering or otherwise deriving the source code or the reasonable equivalent thereof, of the Services, or any software related thereto or therein. For the purpose of this Section, the Services include all Service Provider and Alliance materials, software, technologies and Documentation related to the Services.
- 3.5 Compliance with Applicable Laws and Alliance Policies. Authorized User shall: (a) use the Services only in accordance with the terms and conditions of this EULA; and (b) be and remain compliant with all Applicable Laws in its use of the Services, including laws that become effective during the use of the Services.
- 3.6 Compliance with Alliance Policies. Authorized User represents and warrants that it will, and shall require its Downstream Authorized Users to, comply with all applicable Alliance Policies, including but not limited to the Alliance Data, Security, and Privacy Policy available at www.commonwellalliance.org/data-and-security, where such policies may be updated from time to time.
- 3.7 Business Associate Agreements. Authorized User represents and warrants that it has and will maintain a business associate agreement in conformance with Applicable Laws with each Downstream Authorized User that is applicable to and covers the use and disclosure of Health Data for participation in the Services.
- 3.8 Account Management. Authorized User, when it access the Services via a log-in portal, shall require each person accessing the Services, through such features, to enter his or her login credentials (“Login Credentials”) in order to access the Services. Authorized Users shall obligate Permitted Users who access the Services through log in portals to comply with this Section 3.8. Authorized User is fully responsible for all uses of Login Credentials issued to or created for or by Authorized User. Authorized User is responsible for authentication and identity management of each person that accesses the Services and to ensure such Login Credentials are unique to each person and that such information remains secure. Authorized User shall ensure that each person accessing clinical data using the Services is properly identified, authenticated and authorized under Applicable Laws to access such Health Data.
- 3.9 Breach Detection and Notification. Authorized User shall comply with all applicable breach notification requirements pursuant to 45 CFR § 164.410. Authorized User shall make reasonable efforts to notify Alliance of any Breach of Confidentiality or Security within three (3) days from discovery, and shall report any Breach in accordance with the Alliance Breach Incident Notification Policy available at www.commonwellalliance.org/commonwell-breach-incident-notification-policy.
- 3.10 Data Backup. Authorized User is responsible for providing or operating data back-up services, and other procedures and controls appropriate to maintain the integrity and continuity of their operations, including the protection of their data and PHI and of their End Users.
- 3.11 Carequality Services. The Services may include products and services to Authorized User which involve access to, use of, and re-disclosure of information that the Alliance obtains by virtue of being a Carequality Implementer (“Carequality Services.”). If Authorized User has access to or uses Carequality Services, Authorized User hereby agrees that: (a) with regards to such Carequality Services, Authorized User agrees to and shall comply with the Carequality Connection Terms; (b) acknowledges that the Carequality Connection Terms constitute a binding written agreement between Authorized User and Alliance, and (c) Authorized User consents and has adequate authority to consent to Authorized User and its Licensed Users (that use Carequality services) to participate in the Carequality Services, including but not limited to any applicable Exchange Activity (as that term is defined in the Carequality Connection Terms). “Carequality Connection Terms” means the Carequality terms and conditions, as updated from time to time and available from Carequality here: Carequality here: https://carequality.org/resources/. For the purpose of this EULA “Carequality Implementer” has the meaning provided in the Carequality Connection Terms.
- 3.12 ROI Services.
- 3.12.1 If Authorized User participates in the ROI Services as a Data Retrieval Vendor under a ROI Use Case, Authorized User represents and warrants that it shall copy with the following terms (“ROI Connection Terms”):
- 3.12.1.1 Authorized User shall be certified in accordance with the ROI Certification Process prior to participation (such certified Authorized User to be referred to as “ROI Member”), and;
- 3.12.1.2 Authorized User represents and warrants that it: (i) has obtained and stored all necessary directives, consents and authorizations required under Applicable Law for the use and disclosure of PHI in accordance with the applicable ROI Use Case, and (ii) shall not direct the use and disclosure of PHI as otherwise prohibited by the applicable Use Case or Applicable Law.
- 3.12.2 Where Authorized User provides ROI Services to Downstream Authorized Users, it represents and warrants that it shall include the ROI Connection Terms, and the following in its Downstream Agreements:
- 3.12.2.1 The ROI Connection Terms constitute a binding written agreement between such ROI Member and Alliance, and;
- 3.12.2.2 Service Provider and Alliance shall be third-party beneficiaries of the payment terms between Authorized User and any Data Retrieval Vendor and any Data Requestor.
- 3.13 Connectors. If Authorized User will be operating as a Connector, Authorized User represents and warrants that it shall comply with the following terms (“Connector Terms”):
- 3.13.1 When required for a Use Case, Authorized User will be certified pursuant to a mutually approved Connector Certification Process for the applicable Use Case prior to participation (such certified Authorized User to be referred to as “Connector”), and;
- 3.13.2 Authorized User represents and warrants that it: (i) has obtained and stored all necessary directives, consents and authorizations required under Applicable Law for the use and disclosure of PHI in accordance with a Connector Use Case, and (ii) shall not direct the use and disclosure of PHI except as permitted by the Connector Use Case.
- 3.13.3 Authorized User represents and warrants that it shall inform Alliance of its connections on a monthly basis, using an approved report format, such report to include a directory of all applicable Downstream Authorized Users.
4. Permissions and Limitations
- 4.1 License to Authorized User. Conditioned upon compliance with the terms and conditions of this EULA, Authorized User is hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access the Services, only for purposes approved by the Alliance in an approved Use Case, and to allow access to the Services by Licensed Users and Downstream Authorized Users in accordance with an approved Use Case.
- 4.2 License to Licensed Users. Conditioned upon compliance with the terms and conditions of this EULA, Licensed User is hereby granted a limited, nonexclusive, non-transferable, non-sublicensable, license, to access and use the Services, only for purposes approved by the Alliance in an approved Use Case, and only for its own internal or individual use.
- 4.3 Alliance License to use Data and PHI. Authorized User(s) grants Alliance the right to use data, including but not limited to Data, PHI and de-identified PHI acquired through the Services, solely to provide the Services, and solely for the benefit of the Alliance and the Services, and for system administration of the Services within the scope of the EULA, and for no other purpose. Notwithstanding the foregoing, nothing herein shall be deemed to restrict Alliance from using Data and PHI to improve or enhance the Services, and to provide the Services in accordance with approved Use Cases. Alliance may de-identify PHI and store Health Data and de-identified PHI for the sole purposes of performance testing, monitoring, trouble shooting, and improving the Services. For the avoidance of doubt, any reference to Alliance in Section 4 shall mean Alliance and its Service Provider(s).
- 4.4 Alliance Data Use Limitations. Without limitation, except as permitted in Section 4 or otherwise permitted by the EULA, Alliance shall not modify, transform, conduct analysis on, or otherwise use Data and PHI in any manner except as necessary to provide the Services.
- 4.5 Limited License to Alliance Marks. Subject to the terms and conditions of this EULA, Alliance grants Authorized User a non-exclusive, non-transferable right to use and display the Alliance trademarks and service marks provided by Alliance, as may be updated from time to time in Alliance’s sole discretion (the “Alliance Marks”), to advertise and promote the Services and otherwise as necessary or appropriate for Authorized User to exercise its rights or perform its obligations under this EULA, all subject to Authorized User’s compliance with the Alliance’s Trademark Usage Guidelines, available on request, as may be modified from time to time. Authorized User acknowledges and agrees that Alliance owns the Alliance Marks and that any and all goodwill and other proprietary rights that are created by or that result from Authorized User’s use of the Alliance Marks inure solely to the benefit of Alliance. All use of Alliance Marks are at the sole discretion of the Alliance, and Alliance has the sole and exclusive right to deny the use of Alliance Marks by any party.
- 4.6 Limited License to Authorized User Marks. Subject to the terms and conditions of this EULA, Authorized User grants Alliance a non-exclusive, non-transferable right to use and display the Authorized User trademarks and service marks provided or made available by Authorized User, as may be updated from time to time in Authorized User’s sole discretion (the “Authorized User Marks”), to advertise and promote the Services and otherwise as necessary or appropriate for Alliance to exercise its rights or perform its obligations under this EULA. Alliance acknowledges and agrees that Authorized User owns the Authorized User Marks and that any and all goodwill and other proprietary rights that are created by or that result from Alliance’s use of the Authorized User Marks inure solely to the benefit of Authorized User.
- 4.7 Retention of Rights and Termination of License. The Services are licensed and not sold. Except for the rights specifically granted in Section 4, Service Provider, Alliance, and their licensors retain all rights title and interest in and to their Intellectual Property, and there are no implied licenses thereto, whether implied, statutory, or otherwise. The Services and all additions or modifications to the Services, including derivative works thereof, all Intellectual Property rights associated therewith, are the sole and exclusive property of Alliance and Service Provider, or their licensors. Any license granted in Section 4 of this EULA shall automatically lapse in the event of a breach or any of the terms and conditions of this EULA, including but not limited to a breach of Section 3.4 (Limitations of Use).
5. Suspension of Services. Alliance and Service Provider each retain the right to suspend or terminate the Services provided to Authorized User or any Licensed User at any time in the event that Authorized User or Licensed User is not in material compliance with this EULA, or where such suspension is determined at the sole discretion of Alliance to be in the best interest of the Alliance, its Members, Authorized Users, or to protect the performance, integrity or security of the Services.
6. Disclaimers and Limitations of Liability
- 6.1 Alliance disclaims all representations and warranties with regards to the accuracy and or completeness of any Data and Health Data provided or accessed through the Services.
- 6.2 Health Data, including content, disclosed or received through the Services may not be a complete clinical record or history with respect to any individual, and any such data or content is not a substitute for a healthcare provider’s professional judgement for or in the proper treatment of a patient. It is the responsibility of any treating Provider to confirm the accuracy and completeness of any Health Data or clinical records used for treatment purposes and it is the responsibility of the Provider to obtain whatever information the provider deems necessary, in his/her professional judgment, for the proper treatment of a patient.
- 6.3 Providers are solely responsible for any decisions or actions taken involving patient care or patient care management, whether or not those decisions or actions were made or taken using information received through the Services, and Alliance assumes no responsibility or role in the care of any Patient or Individual User.
- 6.4 Notice to Individual Users. If the End User is an Individual User, all Data and Health Data is provided to such individual on an as-is, as available basis, with no warranty of any kind, and for information purposes only. Neither the Services nor any Data or Health Data provided in or through the Services shall be deemed medical advice or medical care.
- 6.5 LIMITATION OF LIABILITY. IN NO EVENT WILL ALLIANCE OR SERVICE PROVIDER BE LIABLE TO AUTHORIZED USER, LICENSED USERS, INDIVIDUAL USERS, OR ANY OTHER PARTY, UNDER, IN CONNECTION WITH, OR RELATED TO THE EULA OR THE SERVICES, INCLUDING FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL, LOST DATA, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT ALLIANCE OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ALLIANCE AND SERVICE PROVIDER’S ENTIRE AGGREGATE, CUMULATIVE LIABILITY FOR ANY AND ALL LOSS OR DAMAGE, DIRECT OR INDIRECT, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, RELATED TO THE EULA AND THE SERVICES, OR USE THEREOF, SHALL BE LIMITED TO $5,000 (USD).
- 6.6 THE ALLIANCE AND SERVICE PROVIDER CANNOT REVIEW OR CONFIRM THE ACCURACY OF DATA, HEALTH DATA, OR PHI THAT IS USED IN THE SERVICES. THEREFORE, THE SERVICES AND ANY DATA IN OR ACCESSED THROUGH THE SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALLIANCE AND SERVICES PROVIDER EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHATSOEVER, WHETHER EXPRESS OR IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY WITH RESPECT TO THE SERVICES, INCLUDING THE RESULTS OF THE SERVICES.
ALLIANCE AND SERVICE PROVIDER MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES THAT: (A) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) ANY RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (C) THE SERVICES WILL MEET A USER’S REQUIREMENTS. ANY HEALTH DATA, DATA, OR PHI ACCESSED OR OTHERWISE OBTAINED ON OR THROUGH THE USE OF THE SERVICES ARE AT AUTHORIZED USER’S, INDIVIDUAL USER’S, AND ANY OTHER USERS’ OWN DISCRETION AND RISK. ALLIANCE RESERVES THE RIGHT TO MODIFY OR DISCONTINUE THE SERVICES WITHOUT NOTICE AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES RESULTING THEREFROM.
7. General Terms
- 7.1 Certification. At Alliance’s written request, Authorized User will furnish Alliance with a certification signed by an officer of Authorized User verifying that Authorized User is in compliance with the terms and conditions of this EULA including with regards to any payment terms or obligations. At Alliance’s request, Authorized User will furnish Alliance with any detail or documentation supporting such certification, as reasonably requested by Alliance.
- 7.2 Export Control. This EULA is subject to governmental laws, orders and other restrictions regarding the export, import, re-export or use (“Control Laws”) of the Services and Documentation, including technical data and related information (“Regulated Materials”). Authorized User shall comply, and Authorized User shall cause its Downstream Authorized Users to comply, with all Control Laws relating to the Regulated Materials in effect in, or which may be imposed from time to time by, the United States or any country into which any Regulated Materials are shipped, transferred, or released.
- 7.3 Insurance. Authorized User agrees, at its own expense, to maintain policies as follows: (a) commercial general liability insurance with a minimum limit of $3,000,000 per occurrence and $3,000,000 annual aggregate; (b) professional errors and omissions liability insurance with $3,000,000 per claim and $3,000,000 annual aggregate; and (c) cyber and HIPAA cyber insurance liability insurance with $3,000,000 per claim and $3,000,000 annual aggregate.
- 7.4 Books and Records. If required by Section 952 of the Omnibus Reconciliation Act of 1980, 42 U.S.C. Section 1395x(v)(1)(1), for a period of four years after the Services are furnished, each Party agrees to make available, upon the written request of the Secretary of Health and Human Services, the Comptroller General, or their representatives, this EULA and such books, documents, and records as may be necessary to verify the nature and extent of the Services with a value or cost of $10,000 or more over a twelve month period.
- 7.5 Governing Law and Venue. This EULA is governed by and will be construed in accordance with the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws and any version of the Uniform Commercial Code.
- 7.6 Assignment. Authorized User may not transfer, assign, sublicense or otherwise delegate any of its rights or obligations under this EULA, by operation of law or otherwise.
- 7.7 Severability. If any part of a provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this EULA will not be affected.
- 7.8 Construction of Agreement. This EULA will not be presumptively construed for or against any party.
- 7.9 Order of Precedence. In the event of any conflict or inconsistency between or among Applicable Law, this EULA, Downstream Agreements, and Alliance Policies, the following shall be the order of precedence to the extent of such conflict or inconsistency: (i) Applicable Law, (ii) this EULA, (iii) Alliance Policies, (iv) applicable Downstream Authorized User Agreement, then (v) any other terms and conditions.
- 7.10 Entire Agreement. This EULA, including the Policies and documents incorporated by reference, constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (written and oral) regarding its subject matter, including without limitation any letter of intent executed between the Parties.
8. Definitions. In addition to terms defined elsewhere in this EULA, the following defined terms shall apply:
“Affiliated Networks” means networks that operate with or connect to the Alliance Services and/or network, including those currently existing and those that may come to exist in the future.
“Alliance Policies” means all policies approved by the Alliance relating to the Alliance or the Services, as updated from time to time.
“Alliance Specification” means each document designated a “CommonWell Health Alliance Specification” as finally adopted and approved by the Alliance. The most current version of the Alliance Specification may be obtained here: https://www.commonwellalliance.org/connect-to-the-network/use-cases-andspecifications/
“Applicable Laws” means all laws (including common law), statutes, rules, regulations, ordinances, formal written guidance, codes, permits and other authorizations and approvals having the effect of law of the United States, any applicable foreign country or any domestic or foreign state, county, city or other political subdivision, including without limitation agreements and operating procedures required to operate with any government agency or government sponsored healthcare exchange.
“Breach” has the meaning provided for in 45 CFR 164.402 (Definitions, effective March 26, 2013; 78 Federal Register 5695) or its successor.
“Breach of Confidentiality or Security” means an incident that compromises the security or privacy of information of Alliance, Service Provider, or any Member.
“Connector” means a Member that contracts directly with an EHR Vendor in a manner that allows the EHR Vendor to allow its customers access to the Services.
“Connector Use Case” means a Use Case authorizing an Authorized User to participate in a service involving a Connector.
“Data” means the information and files that an Authorized User may receive from or deliver to Alliance, or a Service Provider, through the Services, but not PHI.
“Data Requestor” means an entity requesting clinical data pursuant to an approved ROI Use Case.
“Data Retrieval Vendor” means a ROI Member who contracts with a Data Requestor to fulfil health record requests through the ROI Services.
“Documentation” means the user documentation containing the operational, functional, or technical descriptions of the Services as may be modified from time to time by Alliance or Service Provider.
“Downstream Authorized User” means a party with a written agreement directly with an Authorized User requiring compliance with this EULA, and each subsequent Downstream Authorized User.
“EHR Vendor” or “EHR” means an electronic health records provider, or as it relates to ROI Services, it means an ROI Member that provides the Alliance with access to a patient record.
“End User” means the last person or party in the chain of Authorized Users in an authorized Use Case, which may be a Provider, Individual User, or other final consumer of the Services in accordance with an approved Use Case.
“Health Data” means health information, including information and PHI that is received, transmitted, stored or maintained through the Services.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations.
“Individual User” means an individual that uses the Services on an individual basis, and where such individual is not a Patient, for example a PHR user or Licensed User.
“Intellectual Property” means all forms of legal rights and protections in any country of the world regarding intellectual property rights, including all right, title and interest arising under common and statutory law to all: patents, trademarks, copyrights, trade secrets, and other industrial property rights and other rights to inventions or designs, and all applications, registrations, issuances, divisions, continuations, continuations in-part, renewals, reissuances and extensions of the foregoing.
“Licensed User(s)” means a third party authorized by an Authorized User to accesses or use the Services in accordance with an authorized Alliance Use Case.
“Member” means legal entity that is a party to a valid Alliance Membership Agreement with Alliance.
“Patient” means an individual that has access to or is a recipient of the Services through or on behalf of a Provider.
“Permitted User(s)” means users permitted by Authorized User to access or use the Services on behalf of Authorized User or its Licensed Users, including Authorized User personnel who access the Services through Login Credentials in order to access the Services. Authorized User is responsible for its Permitted Users compliance with this EULA.
“Personal Health Record” or “PHR” means is an electronic application through which Individual Users can access, maintain and/or manage their health information.
“Provider” means a healthcare provider facility, practice group, physician (including any individual or legal entity), or other health care provider permitted by a Authorized User to access the Services or any enrollment user interface to utilize the Services.
“Protected Health Information” or “PHI” means will have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, as applied to the information created, received, maintained or transmitted by Alliance on behalf of its Members. All references to PHI include Electronic PHI.
“ROI Certification Process” means the process by which new ROI Members certify compliance with the ROI Services Connection Terms. Service Provider shall be responsible for certification, onboarding, and setup support for ROI Members.
“ROI Services” means services related to requests for patient data in accordance with an approve Use Case, for example fulfillment of payer requests for patient data.
“Services” means the services approved and offered by or on behalf of the Alliance in accordance with an approved Use Case. Services may also include offerings from Affiliated Networks.
“Service Provider” means a party that Alliance has contracted with to provide the Services (or a subset of the Services).
“Upstream Authorized User” means the upstream party from whom the Downstream Authorized User receives this EULA and the right to receive or use the Services pursuant to a Use Case.
“Use Case” means a use case approved by the Alliance, as further defined in the Alliance Specification, including a list of technical specifications, obligations, and events, necessary to implement a compliant implementation of such use case.
Exhibit B- incorporated into this Addendum by this reference COMMONWELL HEALTH ALLIANCE DATA SECURITY AND PRIVACY POLICY
Member represents that it will, and shall require its Customers to, agree to the following terms of the CommonWell Health Alliance Data, Security, and Privacy Policy, as set forth below.
1. Safeguards. Member shall be responsible for maintaining a secure information technology environment that supports access to, use of, and the continued development of the Core Commercial Services. Member shall use appropriate safeguards to prevent the use or disclosure of PHI other than as permitted by this Addendum, including appropriate administrative, physical, and technical safeguards that protect the confidentiality, integrity and availability of PHI accessed or disclosed through the Core Commercial Services. Member shall require in writing that its Customers develop, implement, maintain and use the safeguards identified in the HIPAA Security Rule, 45 C.F.R. Part 160 and 164, Subparts A and C, regardless of whether such Member or a Customer is subject to HIPAA.
2. Malicious Software. Member shall not, and Member shall require in writing its Users and Customers to not, introduce, or facilitate the introduction of, any Malicious Code into the Core Commercial Services or any other hardware, software, or data used by Member or a Customer.
3. Network Performance and Security. Member shall not, and Member shall require in writing its Customers and Users to not use the Core Commercial Services, or any portion thereof, (i) in a manner that adversely affects the performance or availability of the Core Commercial Services, or any portion thereof, to other entities or individuals that use the Core Commercial Services, (ii) in a manner that interferes in any way with the Alliance or the Core Commercial Services, including its computers or network security, or (iii) to attempt to gain unauthorized access to a Member’s, Customer’s or any third party’s systems or devices.
4.Consents. Customer agrees, represents and warrants to Alliance and Member the following:
- a. For any PHI made available to Alliance or Service Provider by a Customer (including by its Users) through the Core Commercial Services: (i) The Customer (or its User) have all necessary patient consents and authorizations required under applicable law and regulations to disclose the PHI to Alliance and Service Provider for their use and disclosure of that PHI to provide the Core Commercial Services as set forth in, and in compliance with, this Addendum; and (ii) in disclosing on behalf of Member the PHI through the Core Commercial Services to requesting Users, Alliance and Service Provider may rely on the contractual representations or promises made by other Members, their Users, and their Customers (including the Customer’s Users) that requests for access to the PHI are for treatment purposes in accordance with HIPAA and other Applicable Law.
- b. Any and all requests for PHI made by the Customer (including by its Users) through the Core Commercial Services will be for treatment purposes in accordance with HIPAA and other Applicable Law and only with a reasonable expectation of a patient encounter to occur within a reasonable amount of time from the PHI request.
5. Notifications. Customer shall report to the member and Alliance in writing concerning any Serious Breach of Confidentiality or Security involving the Core Commercial Services no later than 5 days after the its Users first become aware of the Serious Breach of Confidentiality or Security. A “Serious Breach of Confidentiality or Security” is any access, use or disclosure of PHI not allowed under Applicable Law, Customer Agreements or this Addendum of which Customer becomes aware or any security incident concerning electronic PHI that requires notice to individuals or government regulators under Applicable Law or that is reasonably likely to adversely affect: (a) the viability or reputation of the Core Commercial Services; or (b) the legal liability of Alliance or Service Provider or any Customer or User.
6. Prohibited Conduct. Customers and its Users shall not use the Core Commercial Services, including any PHI, to conduct any business or activity, or solicit the performance of any activity, which is prohibited by or would violate any Applicable Law or legal obligation, or for purposes that may create civil or criminal liability, including: (i) uses which are defamatory, deceptive, obscene, or otherwise inappropriate; (ii) uses that violate or infringe upon the rights of any other person, such as unauthorized distribution of copyrighted material; (iii) “spamming,” sending unsolicited bulk e-mail or other messages on the Core Commercial Services or sending unsolicited advertising or similar conduct; (iv) threats to or harassment of another; (v) impersonating another person or other misrepresentation of source; (vi) copying, selling, reselling or exploiting any portion of the Core Commercial Services, except as expressly permitted in this Addendum; and (vii) assisting or permitting any persons in engaging in any of the activities described in this Section 6.
7. System and Security Requirements
- a. Internet Connection. Customers shall be responsible for, providing all hardware, and services necessary to access the Internet as necessary to access the Core Commercial Services. The Core Commercial Services shall not be available to any Customer or User that does not have Internet connectivity.
- b. Firewall. Customers and its Users shall implement, use, maintain and assume all costs for commercially reasonable firewall technology.
- c. Virus Protection. Customers and its Users shall implement, maintain and assume all costs for a business class virus protection solution on Customer’s or User’s computers.
- d. Logins. In connection with the provision of the Core Commercial Services, Customers and its Users may be provided Login Credentials. Customers and its Users shall at all times keep Login Credentials strictly confidential and shall take all reasonable precautions to prevent unauthorized use, misuse or compromise of Login Credentials. Alliance shall have the right to terminate any of Customers or Customer Users’ Login Credentials at any time, as it deems necessary without prior notice.
Exhibit C – Incorporated into the Addendum by this reference Addendum DEFINITIONS
Defined Terms. The following defined terms shall apply to this Addendum.
“Applicable Privacy Laws” means all laws and regulations concerning the privacy and/or security of personal information or personal information breach notification, including, where applicable, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, (“HIPAA”) and all applicable state privacy laws, including those governing sensitive conditions.
“Applicable Laws” means all laws (including common law), statutes, rules, regulations ordinances, formal written guidance, codes, permits and other authorizations and approvals having the effect of law of the United States, any foreign country or other domestic or foreign state, country, city or other political subdivision.
“Core Commercial Services” means the technology services provided by Service Provider to enable patient registration and enrollment, and linking clinical patient records across healthcare organizations for patient identity and consent management described in the Alliance Specifications, together with the querying and retrieval of clinical healthcare record documents then indexed for a patient and available through the network as described in the Alliance Specification, in both cases as the Alliance Specification is amended from time to time.
“Customer” is the healthcare provider that contracts with Member (the electronic medical records vendor) to receive the Core Commercial Services.
“Documentation” means the user documentation containing the functional descriptions for the Core Commercial Services as may be reasonably modified from time to time by Service Provider.
“End User” means a healthcare provider facility, practice group, or physician, including any individual or legal entity, permitted by Customer to access the Core Commercial Services or any enrollment user interface to utilize the Core Commercial Services.
“Health Data” means health information, including PHI, that is received, transmitted, stored, or maintained through the Core Commercial Services.
“Login Credentials” means unique user identification and password combination, as well as any other applicable security measures that are required by Service Provider to allow Member, a Customer or a User to gain access to the Core Commercial Services.
“Malicious Code” means any virus, worms, unauthorized cookies, Trojans, malicious software, “malware” or other program, script, routine, subroutine or date that either (i) disrupts, or is designed to disrupt, the proper operation of the system or device inter which it is introduced, the Core Commercial Services (or any party thereof), or any hardware or software of Service Provider, Alliance, a Member or a Customer, or (ii) upon the occurrence of any event, the passage of time or the taking of or failure to take any action, shall cause or result in a system, device, the Core Commercial Services (or any part thereof) or any hardware, software, or data used by Service Provider, Alliance, a Member or a Customer to be improperly accessed, destroyed, altered, damaged or otherwise made inoperable or unreadable.
“Member” means legal entity which is a party to a Membership Agreement accepted by the Alliance and eligible to become an Authorized Member.
“Participant” is the provider or practice that contracts with Member (the electronic medical records vendor) to receive the Core Commercial Services from the Alliance.
“PHI” will have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, as applied to the information created, received, transmitted or maintained through the Core Commercial Services by or on behalf of Member, Customer, or an End User.
“Service Provider” means the Service Provider retained by the Alliance to provide the Core Commercial Services.
“User” means any individual user (including a physician or any other individual) of the Core Commercial Services authorized to use the Core Commercial Services. Users may be employed by Member or a Customer, or affiliated with Member or Customer, but in all cases shall be authorized by Member to use the Core Commercial Services.
I represent that I have full authority to accept this Addendum on behalf of Customer. On behalf of Customer, I have read and now accept the terms of this Addendum.
Addendum for eClinicalMessenger – eClinicalWorks
This Addendum to the Software License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the Software License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the eClinicalMessenger functionality to facilitate communications between Customer and Customer’s providers with patients. |
| Customer’s Responsibilities | Customer represents and warrants to eClinicalWorks that (i) Customer’s use of eClinicalMessenger by Customer shall comply with all applicable laws, rules, and regulations, including but not limited to the Telephone Consumer Protection Act (TCPA) and Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM), and (ii) Customer shall not use eClinicalMessenger except as explicitly authorized by the Software License Agreement, including but not limited to any use related to any “telemarketing solicitation” under the TCPA. |
| Customer is responsible for obtaining any and all consents needed for messages that are sent using eClinicalMessenger. | |
| Customer acknowledges that data conversion and transmission is subject to the likelihood of human and machine errors, omissions, delays and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. eClinicalWorks shall not be liable for any such errors, omissions, delays, or losses. Customer is responsible for adopting reasonable measures to limit the impact of such problems, including adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Customer understands and agrees that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to computer systems, networks, and any and all information stored therein. All information transmitted and received through the Internet is subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. eClinicalWorks and its suppliers shall not be responsible for any adverse consequences whatsoever of Customer or any end users’ connection to or use of the Internet, and shall not be responsible for any use by Customer or any end user of an Internet connection in violation of any law, rule, or regulation or any violation of the intellectual property rights of another. | |
| Third Party Components | Customer acknowledges and agrees that the Software may contain or interface with third-party applications, software and/or materials and open source software (collectively, “Third-Party Software Components”). NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, ALL Third-Party Software Components ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. |
| Customer hereby agrees to the Third-Party Software Components Terms and Conditions in Exhibit A below. | |
| Disclaimer | When Customer enables patients to receive messages in eClinicalMessenger, it is preconfigured with a number of settings that are turned on for the Customer. This may result in charges being incurred by the Customer. Customer can choose to change these preconfigured settings themselves or create a case with eClinicalWorks for eClinicalWorks to make the change for them. |
| eClinicalWorks makes no representation or warranty about the patient’s identity, and eClinicalWorks cannot be held responsible for impersonation. Customer bears all responsibility for confirming a patient’s identity. Customer understands and agrees that eClinicalWorks makes no representations regarding the accuracy of information provided by patients through eClinicalMessenger. | |
| eClinicalMessenger is not configured or intended to be used in a “telemarketing solicitation” fashion as defined in the Telephone Consumer Protection Act (TCPA). | |
| eClinicalWorks is not responsible for, and disclaims any and all liability resulting from, Customer’s communication with, or provision of healthcare services to, patients through eClinicalMessenger. | |
| Customer acknowledges and agrees that the Software may contain or interface with third-party applications, software and/or materials and open source software (collectively, “Third-Party Software Components”). NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, ALL Third-Party Software Components ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. | |
| ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. | |
| Indemnification | Customer agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with the services provided by the processing partner described in this Addendum. |
| Limitation of Liability | ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. ECLINICALWORKS WILL NOT BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS ADDENDUM, THE SOFTWARE, THE APPLICATIONS, OR SERVICES, EVEN IF ECLINICALWORKS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. |
| Applicable law and reimbursement | Customer understands and agrees that eClinicalWorks does not guarantee, and is not responsible or liable for ensuring that the eClinicalMessenger will enable patients and Customer’s Providers to communicate in a manner that (i) complies with all applicable laws and regulations, including but not limited to laws and regulations regarding the provision of telemedicine and telehealth services, and/or (ii) qualifies for any partial or full reimbursement or insurance coverage from any third-party payors or insurers, or otherwise meets requirements imposed by third-party payors or insurers. Customer understands and agrees that eClinicalWorks makes no representations regarding the reimbursement status or coverage by third-party payors or insurers of any healthcare services provided via eClinicalMessenger, and is not responsible for any payments or collection of payments relating to such eClinicalMessenger from patients, third-party payors, insurers or others. |
I represent that I have full authority to accept this Addendum on behalf of Customer, including the Third-Party Terms and Conditions (Exhibit A below). On behalf of Customer, I have read and now accept the terms of this Addendum.
Exhibit A
Third-Party Software Components Terms and Conditions
1. Definitions
- a. “Applicable Law” shall mean all applicable international, national, federal, state and local laws, rules, regulations, directives, statements, and codes of practice, including any export/import laws, relating to any or all countries in the United States or otherwise. Applicable Law includes U.S. CAN-SPAM Act, the U.S. Telephone Consumer Protection Act and any rules promulgated by any Regulator.
- b. “Message” shall mean a 10 DLC Message, a 8XX Message, a MMS Message, a SMS Message, and/or voicemail as the case may be.
- c. “Content” shall mean all data, information and other content in any format (including text and image) either (a) provided by Customer to be sent to end users or (b) sent to Customer by Mobile End Users.
- d. “Content Standards” shall mean all standards which describe the types of Content that Customer may not send to Mobile End Users and the means and circumstances by which Customer may send Content to Mobile End Users. For purposes of this Agreement, the Content Standards include but are not limited to: (a) Customer’s full compliance with all Carrier Application Form (“CAF”) filings (and/or other campaign/program representations made during any similar provisioning approval process) as approved by the respective Covered Carriers; (b) the standards established by the Carriers and/or Mobile O/S Providers, and any additions, deletions or changes to such Content Standards that are hereafter announced from time to time by the Carriers and/or Mobile O/S Providers; (c) all applicable Carrier, Mobile O/S Provider and/or associations of Carriers (e.g., CWTA in Canada and CTIA in the United States) rules, policies, requirements and terms of agreements therewith as such may be updated from time to time (collectively “Policies”); and (d) any applicable standards regarding advertising, marketing and promotion / publicity materials contained within the Content.
- e. Industry Guidelines” shall mean collectively, as applicable, (a) the Mobile Marketing Association’s Code of Conduct and Consumer Best Practices Guideline as each are established from time to time, including as maintained at http://www.mmaglobal.com/node/1563 and http://www.mmaglobal.com/files/Best_Practices_for_Messaging_Version_7.0%5B1%5D.pdf, respectively, which are each incorporated herein by this reference; (b) the CTIA Short Code Monitoring Handbook as established from time to time, including as maintained at https://www.usshortcodes.com/info/static/docs/Monitoring_Handbook.pdf and the CTIA recommendations generally, located at http://www.wmcglobal.com/us-resources, respectively, which are each incorporated herein by this reference; (c) the then-current requirements of the US Common Short Code Administrator, as published at www.usshortcodes.com, which is incorporated herein by this reference; and (d) other similar guidelines and standards established for mobile marketing and messaging in applicable countries including the CWTA (Canada) and Phonepayplus (United Kingdom).
- f. “Mobile Devices” shall mean any and all wireless devices capable of sending and receiving MMS/SMS Messages, installing the Mobile Applications and/or displaying Content sent by Customer.
- g. “Mobile End Users” shall mean any and all persons who have Mobile Devices and who Customer ensures have properly opted to receive the applicable Content.
- h. “Regulator” shall mean any national, state or provincial, or local government authority or law enforcement agency, any court, tribunal or arbitrator(s) of competent jurisdiction, and any self-regulatory organizations with applicable authority. Without limiting the foregoing, Regulators include the U.S. Federal Communications Commission and the U.S. Federal Trade Commission.
2. Customer’s use of eClinicalMessenger and any Message Content shall be in compliance with all Applicable Law and regulations including, without limitation, the requirements of the U.S. Telemarketing and Consumer Fraud and Abuse Prevention Act (15 USC 6101 et. Seq.), as amended from time to time (and the accompanying federal regulations related thereto), the Telephone Consumer Protection Act of 1991 (47 USC 227), as amended from time to time (“TCPA”) (and the accompanying federal regulations related thereto) and any other applicable state, federal, or international requirements, laws, regulations, or rules regarding telemarketing and/or contacting individuals, organization, or entities in connection with the use of eClinicalMessenger, and the U.S. Fair Debt Collection Practices Act (15 USC 1601 et. Seq.) and the accompanying federal regulations related thereto and any other applicable state, federal, or international requirements, laws, regulations, and rules governing customer or debtor contacts and notifications, by all mediums, including without limitation, telephone calls and electronic email, in connection with the use of eClinicalMessenger. Customer’s use of eClinicalMessenger and any Message Content shall also be in compliance with the Content Standards, and the Industry Guidelines, including compliance with all “opt-in” and “opt-out” requirements for sending and receiving Messages
3. Customer shall (i) collect affirmative consent from all Mobile End Users prior to using the message routing services to transmit Messages to such Mobile End Users’ Mobile Device and (ii) not send Messages to Mobile End Users who have not affirmatively provided consent to receive those Messages.
4. eClinicalWorks may, without any liability to Customer or any Third Party and in addition to any other rights set forth herein, immediately suspend part or all of the Services for as long as eClinicalWorks deems reasonably necessary due to any of the conditions set forth below. eClinicalWorks will notify Customer as soon as reasonably practicable of any such suspension. The reasons for possible suspension include: (a) eClincalWorks’ or a Third-Party contractor’s obligation to comply with an order, instruction or request of any court, administrative tribunal, governmental body, regulatory body, Carrier and/or Mobile O/S Provider; (b) eClincalWorks’ or a Third-Party contractor’s maintenance or repair of the Advanced Messaging Platform; (c) eClincalWorks’ or a Third-Party contractor’s reasonable belief that the Content and/or the use of the Message Routing Services or any part of either by Customer may violate Applicable Law, the Content Standards, the Industry Guidelines or the terms of this Agreement; (d) unauthorized or fraudulent use of the Message Routing Services, or if Customer’s use of the Message Routing Services is causing or may cause damage to the Advanced Messaging Platform, a Carrier’s system and/or a Mobile O/S Provider’s system; or (e) Customer is in breach of any of its obligations under its Agreement with eClinicalWorks.
5. If the Customer uses Long Code Messaging Customer must provide a link to their privacy policy to Mobile End-Users.
6. Customer shall be solely responsible for the approval of any Content of Messages delivered via eClinicalMessenger, the selection of recipients of the Messages (including responsibility for compliance with state and deferral do not call statutes) and the manner, time, and means of delivery of such Messages.
7. Where eClinicalMessenger is being provided at Free to End User (FTEU) Short Code rates, Customer is solely liable to pay all potential roaming fees.
8. Customer is responsible for maintaining all records of SMS contact lists, including auditable opt-in records and up-to-date opt-out records with are compliant with carrier-supplied graylist updates documenting disconnected numbers.
9. Customer shall access and use eClinicalMessenger for lawful purposes only and not utilize the eClinicalMessenger: (a) to transmit or allow to be transmitted any information, data, or Messages provided by or on behalf of the Customer’s Content that violates the requirement of any third party mobile network operator (“Network Operator”) providing mobile messaging services in connection with the services through which the Content is transmitted; (b) to transmit or allow to be transmitted any Content that is false, inaccurate, misleading unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, offensive, obscene, libelous, invasive of another’s privacy, hateful, or racially ethically or otherwise objectionable; (c) to transmit or allow to be transmitted any Content that harms minors in any way; (d) to transmit or allow to be transmitted any Content that Customer does not have the right to make available under any law or under contractual or fiduciary relationships; (e) to transmit or allow to be transmitted any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights or rights of publicity or privacy of any party; (f) in connection with any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other forms of solicitation; (g) in a manner that violates the standard of practice set forth by the Mobile Marketing Association; (h) to interfere with or disrupt any mobile messaging services or mobile messaging service provider (“SMS Provider”) servers or Network Operator networks connected to any mobile messaging services being provided in connection with the services, or disobey any requirements, procedures, policies, or regulations of networks connected to any mobile messaging services being provided in connection with the service; (i) to transmit or utilize any (aa) viruses, worms, Trojan horses, or other code that might disrupt, disable, harm, erase memory, or otherwise impede the operation, features, functionality of any software, firmware, hardware, wireless device, computer system or network, (bb) traps, time bombs, or other code that would disable any software based on the elapsing of a period of time, advance to a particular date, or other numeral, (cc) code that would permit any third party to interfere with or surreptitiously access any Customer personal information, or (dd) content that causes disablement or impairment of any SMS Provider or Network Operator services or equipment; (j) to intentionally or unintentionally violate any applicable local ,state, national, or international law, or any regulations having the force of law regarding the use or transmission of SMS messages; (k) to provide any material support or resources (or conceal or disguise the nature, location, sources, or ownership of material support or resources) to any organization designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act only as such organization designation may be reasonably know to Customer; or (l) to collect or store personal data about Customer in connection with the prohibited conduct and activities set for hereinabove; or (m) to block any party’s use of the random or “vanity” short code; or (n) to use a random or “vanity” short code to claim a relationship with or speak for any individual, business, association, institution, or other organization for which Customer is not authorized to claim such a relationship. The foregoing restrictions shall be refereed to as the “SMS Use Restrictions”. Upon reasonable written request from eClinicalWorks, Customer shall as soon as practicable, with reasonable detail, provide evidence of compliance with the SMS Use Restrictions.
Addendum For eClinicalMobile
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the eClinicalMobile® module, which provides functionality available through a smartphone to check schedules, review telephone and web messages, e-prescribe, look up patient medical records, examine lab results, and charge capture at the point of service. |
| Customer Prerequisites | Customer is responsible for furnishing an adequate iOS and Android smartphone to use the eClinicalMobile® module. |
| Notice | Customer acknowledges that data available through the eClinicalMobile® module does not immediately synchronize with Customer’s EHR database. For example, a user may experience a lag time of 15 minutes before the data synchronizes. Customer further acknowledges different usernames and passwords may be necessary to use the eClinicalMobile® module than individual users might use with the EHR software. |
Addendum For eClinicalTouch
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the eClinicalTouch module, which is an iPad app that provides many of the most-used features of the eClinicalWorks EHR. |
| Customer Prerequisites | Customer is responsible for furnishing adequate iPads to use the eClinicalTouch module. If Customer uses a private cloud, then Customer is also responsible for furnishing a virtual private network to use the eClinicalTouch module. |
Addendum For eClinicalWorks Speech-To-Text
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Disclaimer | eClinicalWorks disclaims any warranty that the service will perfectly translate voice to text, as well as any warranty of merchantability, accuracy, or fitness for a particular purpose. |
Addendum for eCW Dental Module
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use , this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | American Dental Association is the company providing this product. Customer hereby agrees to the American Dental Association’s terms in Exhibit A. |
| Functionality | Customer desires to activate the dental module |
| Fees and Payment | There is no additional charge for activating this module. |
| Disclaimer | The module is not an imaging viewer. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
American Dental Association Terms and Conditions
1. Definitions.
- a. “ADA” means American Dental Association.
- b. "Bundled Product(s)" means an Eligible Product(s) licensed under this Addendum and that contains all or any portion of the CDT bundled with or integrated with such product(s)
- c. "CDT" means the textual, graphic and other editorial content included in the ADA developed publications titled CDT2016: Current Dental Terminology ("CDT") and all Updates as defined herein. The CDT content includes, but is not limited to, the Code on Dental Procedures and Nomenclature, a glossary, the ADA dental claim form and other dental information.
- d. "Code" means the Code on Dental Procedures and Nomenclature, whether delivered in print or machine-readable format. Each individual dental procedure is comprised of at least the following two components: (1) a five character alphanumeric sequence called the "code" that identifies a specific dental procedure and (2) a short, written literal definition of the dental procedure called the "nomenclature." Some but not all individual dental procedures have a third component, (3) a written narrative that provides a more detailed definition and the intended use of the procedure code, called the "descriptor."
- e. "Distributors" means third party resellers and distributors duly authorized to distribute the CDT, including without limitation system integrators, value added resellers, OEM's, and Licensee Affiliates.
- f. "Eligible Product" means a dental practice management software product designed for use by dentists and their staff within a dental office or other health care facility where patients are receiving direct treatment.
- g. “End User” means Customer and Customer’s employees
- h. "End User Site" means each separate geographic location where End User maintains a dental office.
- i. "Output" means any electronic or printed copy of the CDT, or portions thereof (including without limitation any complete or partial listings of the CDT codes, nomenclature or descriptors), created by using the Bundled Products.
- j. "Updates" means any modified or updated versions, new editions, or derivative works of the CDT that ADA, at its sole discretion, makes generally available to licensees under existing license agreements. All Updates are part of the CDT once delivered to licensees and are governed by this Addendum.
2. End User License Grant.End User is hereby granted a non-exclusive, non-transferable right to use the CDT at End User Sites solely as part of the Bundled Product and solely for End User's internal business purposes. "End User Site" means each separate geographic location where End User maintains a dental office. This License grants End-User the right:
- a. to install and use the CDT on a computer system located at End User Site;
- b. to retrieve CDT codes, descriptors and nomenclature via commands contained in the eCW Dental Module for the exclusive use of End User;
- c. to reproduce and distribute partial listings of the CDT codes, nomenclature and descriptors in various printed and electronic documents for purposes of claims processing, billing and patient treatment, via commands contained in the eCW Dental Module;
- d. to print limited portions of the CDT solely for the exclusive use of End User; and
- e. to print a complete listing of the CDT codes, nomenclature and descriptors solely for the exclusive use of End User.
As used herein, End User shall mean End User and End User's employees.
3. End User License Restrictions.Except as expressly permitted in the "License Grant," End User may not and may not permit anyone else to (a) copy the CDT; (b) alter, amend, change or modify the CDT, including the CDT codes, nomenclature and descriptors or other content of the CDT; (c) remove any copyright or other proprietary notices, labels or marks from the CDT or from Output created by using the eCW Dental Module; (d) distribute, sell, assign, lease or otherwise transfer the CDT, including the Code) or any portion thereof, in any printed, machine-readable or other form to any other person, firm or entity, including but not limited to, as Output; or (e) use the CDT, whether on a time-sharing, remote job entry or other multiple user arrangement. End User shall take reasonable measures to maintain the security of the CDT.
The restriction set forth in section 2(b) shall not limit End User's right to add additional content to the eCW Dental Module ("End User Content"), provided; End User does not alter, amend, change or modify existing CDT codes, nomenclature and descriptors or other CDT content, and End User's Output does not claim or otherwise imply that such End User Content is owned, created, approved or endorsed by the ADA.
IN NO EVENT SHALL END USER USE THE ECW DENTAL MODULE FOR OR ON BEHALF OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO USE OF THE ECW DENTAL MODULE TO PROVIDE CONSULTING, TIMESHARING OR OUTSOURCING SERVICES OR TO ACT AS A SERVICE BUREAU OPERATION. END USER IS EXPRESSLY PROHIBITED FROM DISTRIBUTING OUTPUT, INCLUDING THE CODE OR PORTIONS THEREOF, TO ANY PERSON, FIRM OR ENTITY.
4. Ownership of Intellectual Property.End User acknowledges and agrees that ADA owns all right, title and interest (including all copyrights and other intellectual property rights) in the CDT (in all print and machine readable forms), all other rights of commercialization, rental or sale of the CDT or any part thereof, the right to make derivatives of the CDT and the right to distribute the CDT and copies thereof. End user acquires no proprietary interest in the CDT, or any portion thereof. Except for the limited rights expressly granted to End User herein this Addendum, all other rights in the CDT are owned and retained by ADA.
5. Warranty.EXCEPT AS EXPRESSLY STATED HEREIN, THE CDT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. END USER BEARS ALL RISK RELATING TO QUALITY, ACCURACY AND PERFORMANCE OF THE CDT.
6. Limitation of Liability.IN NO EVENT WILL ADA BE LIABLE FOR ANY LOST PROFITS OR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER TYPE OF DAMAGES, ARISING OUT OF THIS Addendum OR THE USE OF OR INABILITY TO USE THE CDT OR DOCUMENTATION, EVEN IF ADA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO ANY CLAIM OR CAUSE WHATSOEVER WHETHER SUCH CLAIM OR CAUSE IS IN CONTRACT, TORT OR OTHERWISE.
7. Indemnification.End User agrees to indemnify ADA (including reasonable attorneys' fees and costs of litigation) against and hold ADA harmless from any and all claims, liability, losses, damages and expenses resulting from End User's use of the CDT, in breach of any of the terms of this Addendum, or End User's use of any data or documentation received from ADA, regardless of the form of action.
8. Third Party Beneficiary.ADA is a direct and intended third party beneficiary of the Addendum between eClinicalWorks and End User; provided, however, ADA's rights as a third party beneficiary are limited solely to the End User's use of the CDT outside the scope of the Addendum.
Addendum For ePayment
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the ePayment module, which will enable payment via the EHR software, a kiosk solution, Patient Portal, or healow® Pay. |
| Payment Processor | Customer must contract directly with one of eClinicalWorks payment processing partners prior to activation of this module. Customer understands they may need to enter into a separate end-user agreement with the processing partner. Customer will be billed by Payment Processor directly. |
| Network and Malware Responsibility | Customer is responsible for ensuring that its network is free of malware and any other software or hardware that would expose credit or debit card information. |
| Indemnification | Customer agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with the services provided by the processing partner described in this Addendum. |
| Warranties | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
Electronic Prescribing of Controlled Substances (EPCS)
This Addendum shall be incorporated into the Software License Agreement between eClinicalWorks, LLC, and your practice, the entity that has licensed the eClinicalWorks software and services (“Practice” or “Customer”) to make additional software and/or services available to the Practice and constitutes a binding agreement between eClinicalWorks and the Practice. This Addendum is in regards to electronic prescribing of controlled substances ("EPCS") self-activation service. This EPCS enrollment process requires certain information from authorizing physicians and other providers. By beginning this process, each physician will be redirected to a third-party website to begin the authentication process required for EPCS. The identity proofing and second factor credential authentication services required for EPCS are provided by Exostar, LLC("Exostar"), an independent, third-party vendor of eClinicalWorks.
The EPCS capabilities of eClinicalWorks's software are provided as an additional service to eClinicalWorks's customers for additional consideration. By accepting these terms, the Practice agrees to pay eClinicalWorks at standard annual published rates, , non-transferrable to another provider, or as otherwise agreed to in writing (the "Fees"). The term of enrollment is annual and continues for the one (1) year period following the date on which you enroll (a "Term"). Fees are applicable whether or not the Practice or any of its providers actually use EPCS capabilities, and the Practice agrees and acknowledges that Fees are not subject to issuance of any credits or discounts due to any decrease in use of or decision to discontinue use of the EPCS capabilities during a Term. Upon expiration of any Term, this Addendum will automatically renew for additional one (1) year Terms.
By entering into this Addendum, the Practice consents to the release of information necessary to complete the EPCS enrollment process. This includes the transfer of any information needed by Exostar for the identity proofing, second factor credential authentication, and token binding services (the "Exostar Services"), whether specifically related to the Practice or otherwise. The Practice further agrees that eClinicalWorks may from time to time continue to release information to Exostar as necessary or convenient to allow the Practice or its providers to use EPCS or other features of eClinicalWorks's software. The Practice represents and warrants that any information it has previously provided or that it will provide as part of the EPCS enrollment process is completely true and accurate. The Practice further represents and warrants that it will make all reasonable efforts to ensure any information provided by or related to any person or provider is also completely true and accurate, including providing training and enrollment assistance as necessary to individual providers who enroll. The Practice further represents and warrants that it will make all reasonable efforts to ensure any verifications required by any person or provider to complete the EPCS enrollment process will be complete and accurate and such verifications will be made by the actual person who is required to make the verification.
The Exostar Services are provided by Exostar and not eClinicalWorks. The Practice agrees that eClinicalWorks is not responsible for the quality or performance of the Exostar Services, that Exostar may provide these services "AS-IS" and with "NO WARRANTY," and that eClinicalWorks makes no promises or warranties of any kind regarding those services. FURTHERMORE, THE PRACTICE AGREES TO INDEMNIFY AND HOLD ECLINICALWORKS HARMLESS FOR, AND TO WAIVE THE RIGHT TO BRING AGAINST ECLINICALWORKS, ANY CLAIM ARISING OUT OF OR RELATED TO THE EXOSTAR SERVICES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR UNINTENTIONAL ACTIONS. THE PRACTICE IRREVOCABLY AGREES THAT ECLINICALWORKS WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THE EXOSTAR SERVICES.
The EPCS capabilities of eClinicalWorks's software are provided to the Practice "AS-IS" and with "NO WARRANTY." The Practice agrees and understands that it is solely responsible for the proper use of any login and authentication credentials. The Practice also agrees and understands that it is solely responsible for compliance with all laws and regulations regarding prescriptions for controlled substances, including but not limited to compliance with Drug Enforcement Administration, Food and Drug Administration, and state regulatory requirements. The Practice further agrees and understands that it is solely responsible for ensuring that its information technology and/or computer systems are up to date and capable of complying with any applicable laws and regulations and capable of accurately implementing EPCS. By entering this Addendum, the Practice represents and warrants that it or its authorized providers are currently eligible to prescribe controlled substances, including through EPCS, and that the Practice is in compliance with all applicable laws and regulations.
Nothing in this Addendum shall be construed or interpreted to waive, modify, or to release the Practice from any obligation or provision of any other agreement between the Practice and eClinicalWorks, except to the minimum extent necessary to give effect to the terms of this Addendum. eClinicalWorks will honor other written agreements between eClinicalWorks and the Practice concerning Fees.
If any court of law holds any provision of this Addendum to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Addendum will not be affected.
Addendum For ExitCare
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | ExitCare, LLC is the company providing this product. Customer hereby agrees to ExitCare’s End User License Agreement in Exhibit A. |
| Functionality | Customer desires to add connectivity to the Cognos service. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
End User License Agreement for ExitCare Content
eClinicalWorks, LLC ("Vendor") is a distributor of ExitCare, LLC ("ExitCare") with respect to the ExitCare content ("ExitCare Content"). Vendor is authorized to distribute the ExitCare Content to its customers pursuant to the terms and conditions of this ExitCare Content End User License Agreement.
EXITCARE Content End User License Agreement
This End User License Agreement ("EULA") is entered into between ExitCare and the eClinicalWorks customer choosing to implement ExitCare Content ("End User").
Terms and Conditions for all EXITCARE Content.
1. Scope of Use. End User is licensed to use the EXITCARE Content for the number of patient discharges for the facilities and venues of care for which End User has contracted with Vendor for the Vendor software, product or service containing the EXITCARE Content or with which the EXITCARE Content is integrated or through which the EXITCARE Content is delivered (the "Vendor Software"). Use for additional discharges or facilities or venues of care beyond those for which End User has contracted may require payment of license fees. End User will, upon request, report to Vendor and ExitCare its actual discharges, use, and other statistics as appropriate to determine whether any additional license fees are payable by End User.
2. Term of License. The term of the license to the EXITCARE Content granted hereunder shall be the term of End User's license to the Vendor Software (the "License Term").
3. No Time Sharing. End User shall not use the EXITCARE Content for timesharing, subscription services, or rental use for the benefit of third parties.
4. Copying Rights. End User shall not duplicate the EXITCARE Content without the prior written consent of ExitCare, except for archival purposes.
5. Export. End User shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the EXITCARE Content, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
6. Governing Law: Jurisdiction. This EULA shall be deemed to have the same governing law, jurisdiction, and dispute resolution provisions as the End User agreement between Vendor and the End User for the Vendor Software.
7. Third Party Access. End User may permit agents or contractors to use the EXITCARE Content on End User's behalf only to the extent authorized under the End User agreement between Vendor and End User for the Vendor Software, provided that End User is responsible for such agents' and contractors' compliance with this EULA.
8. Fees. End User shall pay all fees for the rights to use the EXITCARE Content and receive maintenance and support thereof to ExitCare within thirty (30) days of the invoice date. End User acknowledges that End User may incur reinstatement fees if support is cancelled and subsequently resumed.
9. EXITCARE Content Warranties. All warranties with respect to the EXITCARE Content shall be between ExitCare and End User as follows: ExitCare warrants to End User that the EXITCARE Content will conform to the published specifications for the EXITCARE Content in effect on the date End User contracts with Vendor for the Vendor Software. ExitCare agrees to update the EXITCARE Content to remain in compliance with all laws and regulations that impose requirements or restrictions applicable to the EXITCARE Content. ExitCare further warrants that it owns or has the right to provide the EXITCARE Content to End User as required under this EULA. End User will provide ExitCare and Vendor with prompt notice of any claim of breach of the foregoing warranty. Other than ExitCare's indemnity obligations under Section 18, End User's exclusive remedies in the case of any breach of the foregoing warranty shall be for ExitCare to promptly replace or modify the EXITCARE Content to render it compliant with the foregoing warranties.
10.Restrictions on Use of EXITCARE Content. End User may only use the EXITCARE Content for its own business purposes (which include use by authorized users as defined in the agreement pursuant to which Vendor provides EXITCARE Content to End User, and access to medical records prepared through use of the EXITCARE Content by patients and their caregivers). End User may not alter, modify, translate, publicly perform, publicly display, create derivative works of (except as allowed in this Agreement), remove any proprietary notices, labels, or marks, loan, sublicense to third parties, or otherwise use the EXITCARE Content in a manner not expressly licensed for such use hereunder whether through physical transfer of a copy, electronic access through a network of any description, or by any other means whatsoever. End User may not use the EXITCARE Content in a Closed Loop System. For purposes hereof, a "Closed Loop System" means any system that provides medical care without intervention. The EXITCARE Content requires End Users to exercise independent, clinical judgment, in the delivery of patient care.
11.Maintenance and Support. During any period for which End User has paid Vendor through the appropriate licensing fees for periodic maintenance, support and updates of the EXITCARE Content, End User will have the right to receive from ExitCare, directly or through Vendor, maintenance and support including Updates to the EXITCARE Content, when and if such Updates are made generally available by ExitCare to its support and maintenance customers at no additional charge. For purposes hereof, "Updates" shall mean any corrections or other revisions, fixes, enhancements, upgrades, additions, deletions, edits, and new versions and releases of the EXITCARE Content to the specific EXITCARE Content licensed by End User that ExitCare makes generally available to other licensees of the same EXITCARE Content.
12.Exclusions, ExitCare shall not be liable for: (a) failure to use the EXITCARE Content in accordance with the applicable documentation or published specifications for such EXITCARE Content in effect on the date End User entered into this EULA; (b) unlicensed use of the EXITCARE Content; (c) use of the EXITCARE Content with software, hardware, data or other technology not approved under the applicable documentation or published specifications; (d) errors in implementing the EXITCARE Content by a party other than ExitCare; (e) failure by End User to use due care in the use and validation of the results produced by the EXITCARE Content; and (f) any medical treatment provided by End User to patients, whether or not the EXITCARE Content was used in connection with such treatment. End User shall have full responsibility for the care and well-being of its patients, and any reliance by it upon the EXITCARE Content shall not diminish that responsibility.
13.Force Majeure. ExitCare will not be liable for any failure or delay in performance under this EULA which is due to any event beyond the reasonable control of ExitCare, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
14.DISCLAIMER. EXITCARE SHALL NOT BE RESPONSIBLE FOR DETERMINING THE SUITABILITY OF EXITCARE CONTENT FOR END USER. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM THE EXTENT PERMITTED UNDER APPLICABLE LAW, EXITCARE MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION, WARRANTY OR GUARANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE EXITCARE CONTENT OR MAINTENANCE AND SUPPORT OF THE EXITCARE CONTENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY: (1) OF MERCHANTABILITY; (2) OF FITNESS FOR A PARTICULAR PURPOSE; (3) OF NON-INFRINGEMENT; OR (4) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. EXITCARE MAKES NO WARRANTY THAT USE OF THE EXITCARE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
15.LIMITATION OF DAMAGES. IN NO EVENT SHALL EXITCARE OR ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, OR ANY THIRD PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF PROFIT, LOST DATA, INACCURATE INPUT, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY, OR HAS CONSTRUCTIVE KNOWLEDGE, OF SUCH DAMAGES.
16.LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EXITCARE, ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, PARENT, SUBSIDIARIES OR AFFILIATES FOR DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE TOTAL FEES PAID OR PAYABLE BY END USER FOR THE EXITCARE CONTENT.
17.EXCLUSIONS. THE LIMITATIONS AND DISCLAIMERS IN SECTION 15 AND SECTION 16 SHALL NOT APPLY WITH RESPECT TO: (A) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (B) LIABILITY FOR DAMAGE TO OR DESTRUCTION OF TANGIBLE PERSONAL PROPERTY OR REAL PROPERTY TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF EXITCARE OR ITS PERSONNEL OR AGENTS IN THE PERFORMANCE OF ITS SERVICES UNDER THIS AGREEMENT; (C) BREACH OF CONFIDENTIALITY; (D) END USER'S LIABILITY FOR PAYMENT OF FEES OWED UNDER THIS AGREEMENT; OR (E) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER END USER OF EXITCARE.
18.Indemnity, ExitCare agrees to defend and indemnify End User and to hold End User harmless from all claims, damages, losses, costs and expenses (including reasonable attorneys and experts' fees and costs) suffered or incurred by End User arising out of any claim asserted against End User that alleges that the EXITCARE Content infringes or misappropriates a third party's copyright; provided that aitCare is given prompt notice of any such claim and right to control the defense and settlement thereof. End User shall reasonably cooperate with ExitCare in connection with the foregoing. ExitCare assumes no liability or indemnity obligation to End User for claims of infringement or misappropriation arising from (i) use of the EXITCARE Content in combination with third party products not supplied by ExitCare, (ii) modifications to the EXITCARE Content by a party other than ExitCare or a party authorized by ExitCare, (iii) failure to use the EXITCARE Content in accordance with its documentation accompanying the Vendor Software with which the EXITCARE Content was provided, (iv) specifications provided by End User; and (v) failure of End User to implement any improvement or updates to the EXITCARE Content provided without additional expense by ExitCare or as part of any maintenance services received by End User, if the infringement or misappropriation claim would have been avoided thereby. Should an injunction be issued by a court of competent jurisdiction preventing End User's continued use of the EXITCARE Content as permitted under this EULA, ExitCare may, at its option and expense either (a) procure for End User the right to continue to use the EXITCARE Content as contemplated hereunder, or (b) replace or modify the EXITCARE Content to make its use hereunder non-infringing, provided the EXITCARE Content continues to conform to its- published specifications in effect on the date of End User's agreement with Vendor for the Vendor Software containing the EXITCARE Content. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF EXITCARE AND THE EXCLUSIVE REMEDY OF END USER AND ANY OTHER ENTITY, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL OR PROPRIETARY RIGHTS.
19.Ownership. As between ExitCare and End User, all right, title, and interest, including all intellectual property rights, in the EXITCARE Content, and any derivative works, improvements or modifications thereto, shall be owned by ExitCare.
20.Term; Termination. This EULA shall commence on the date the agreement is executed by End User ("Effective Date") and shall continue thereafter until the end of the term specified by the agreement between End User and Vendor for the Vendor Software. If either party fails to observe or perform any material obligation under this EULA, the non-defaulting party may give written notice to the defaulting party specifying the material failure. If the material failure-is not corrected or a mutually agreed plan to correct the failure has not been established within thirty (30) days after the date of such notice, the non-defaulting party may terminate this EULA with respect to all EXITCARE Content upon written notice to the defaulting party. The right of the non-defaulting party to terminate this EULA under this Section is in addition to all other rights that are available to it under this EULA.
21.Effect of Termination. Upon termination of this EULA, End User shall discontinue use and destroy or return to ExitCare all copies of the EXITCARE Content and related documentation to which the termination applies.
22.Assignment. Subject to all other provisions herein contained, this EULA shall be binding on the parties and their successors and permitted assigns. ExitCare may assign or delegate this EULA upon written notice to End User. End User may not assign or delegate this EULA or any of its rights or obligations hereunder without the prior written consent of ExitCare, except that End User may assign this EULA to the extent End User assigns its agreement with Vendor for the Vendor Software.
23.Binding Nature. All the terms and provisions of this EULA shall be binding upon and inure to the benefit of the parties hereto, and their permitted successors and permitted assigns.
24.Notices. All notices to ExitCare shall be provided via national overnight courier to ExitCare, LLC. 576 Bielenberg Drive, Woodbury, MN 55125, Attention: General Counsel.
25.No Waiver. The failure of ExitCare or End User to enforce at any time for any period any provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights, or the right of ExitCare or End User thereafter to enforce such provisions. Except as otherwise expressly provided in this Agreement, the rights and remedies provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.
Addendum For ePrescription
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the ePrescription service. This service is only available for pharmacies that participate in electronic prescriptions. |
| Notice | This process only applies to the functionality in the software. The authorized provider still must proceed through an onboarding process. Among other things, Customer and each authorized provider must identify to eClinicalWorks all known prescribing locations. The legal name and other information of the authorized provider for the service must match the name provided to regulatory authorities, including the information submitted in Section 2 of the “National Provider Identifier (NPI) Application/Update Form.” Any discrepancy between the data provided to (a) eClinicalWorks and (b) regulatory authorities may delay or prevent successful activation of this service. If Customer further desires to add the EPCS service now or in the future, additional information may be required. If any issues occur in the activation of this service, please submit a support ticket to technical support. |
| Surescripts | The service is facilitated in part by Surescripts and is subject to any additional terms imposed by Surescripts. Customer may need to enter into a separate end-user agreement with Surescripts. |
| Cancellation | To cancel this Addendum, Customer must contact eClinicalWorks via a Support Case logged on the Customer Care Portal. Cancellation may take up to 60 days. |
| Indemnification | Customer hereby agrees to indemnify, defend and hold eClinicalWorks and its affiliates harmless from any loss, claim, damages, cost or expense arising out of or in connection with Surescripts services in connection with this Addendum. |
| Warranties | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
eClinicalWorks connects to Surescripts® Network to process e-prescribe transactions. Surescripts has identity proofing requirements that eClinicalWorks and Customer are required to comply with. Surescripts requires adoption of these requirements by eClinicalWorks and Customer to meet the National Institute of Standards and Technology (NIST) standards and Surescripts’ outstanding contractual obligations. If Customer does not comply with any of its obligations under this section, eClinicalWorks may not be able to process e-prescribe transactions for Customer.
Customer Requirements:
| Step | Requirements |
| 1 | Customer shall provide to eClinicalWorks the(1) National Provider Identifier (NPI) & (2) tax identification number (TIN) for the physician group practice |
| Customer must be a legally formed organization and cannot be a professional association, independent practice association, or otherwise. | |
| 2 | Customer shall identify to eClinicalWorks a physician representative, employed by Customer, to undergo the identify proofing process on behalf of Customer. |
| 3 | Physician representative must submit to a third party vendor designated by eClinicalWorks identification evidence of NIST IAL2 level or greater. This can be accomplished by the following: |
| a) One piece of SUPERIOR or STRONG evidence depending on strength of original proof of validation with issuing source | |
| -or-b) Two pieces of STRONG evidence | |
| -or-c) One piece of STRONG evidence plus two pieces of FAIR evidence | |
| *Notification shall be sent to physician(s) that identity proofing has been completed per NIST requirements (i.e., sent to verified phone number or address of record). | |
| *Please refer to the NIST Special Publications for more information on evidence conformance requirements and the notional strength of evidence types. | |
| * All forms of identification and validation must contain matching individual names. | |
| 4 | The verified physician may assign the role of system administrator for the e-prescribing functionality to designated Customer employee(s). |
| 5 | For e-prescribing functionality, the verified physician may only issue credentials to individuals within their organization in person. To receive credentials, individuals must provide documentation that complies with standard legal requirements and best practices for employee verification, such as I9 Forms. |
| 6 | Customer shall retain copies of all information applicable to physician identity verification and credentialization and shall provide them upon request to eClinicalWorks or Surescripts. |
| Changes in System Administrator: | |
| For initial implementation, the system administrator should be ID proofed at a NIST IAL2 equivalency. | |
| System administrator role may be transferred to anyone who had previously been ID proofed by the prior system administrator. | |
Addendum For healow Aware
This Addendum to the Software License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services (“Software”) available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the Software License Agreement, each Terms of Use, this Addendum (if accepted), and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add healow Aware (“Software”) to enhance Customer’s online presence. |
| License | Customer grants eClinicalWorks a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable license to use, reproduce, prepare derivative works of, display and distribute all business data and other information or content that is made available to eClinicalWorks and healow by or on behalf of Customer in connection with its use of the Software. |
| This Software is made available by eClinicalWorks through a license with healow, LLC. | |
| Customer Responsibility | Customer is solely responsible and liable for all use of its account and portal for the Software. |
| Third Party Components | Customer acknowledges and agrees that the Software may contain or interface with third-party applications, software and/or materials and open source software (collectively, “Third-Party Software Components”). NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, ALL Third-Party Software Components ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. |
| Yext, Inc. is a third party that partners with healow to provide the Software. Customer hereby agrees to the Yext terms in Exhibit A. | |
| Disclaimers | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| eClinicalWorks is not responsible for the accessibility compliance of the website provided to Customer. It is solely Customer’s responsibility to ensure that that the website meets accessibility requirements, standards, and guidelines and Customer shall be fully liable for any failure to do so. eClinicalWorks recommends that Customer consult or hire an independent third party to conduct a full compliance check and make any necessary modifications to the website. | |
| eClinicalWorks is not responsible for the security of Customer’s website and it is Customer’s responsibility to take all necessary steps to make it secure. eClinicalWorks recommends that Customer make backups regularly to ensure the website can be restored. | |
| Customer is solely responsible and liable for any content on the website, aside from that directly and solely supplied by eClinicalWorks, including but not limited to that which infringes or misappropriates any intellectual property rights or violates any law. | |
| Customer is solely responsible and liable for any actions that they take on social media, including posting pictures of staff or patients. | |
| Limitation of Liability | ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER WITH RESPECT TO THE SERVICES GIVING RISE TO THE LIABILITY OVER THE MONTHS IN WHICH LIABILITY OCCURRED NOT TO EXCEED TWELVE (12) MONTHS. ECLINICALWORKS WILL NOT BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS ADDENDUM, THE SOFTWARE, THE APPLICATIONS, OR SERVICES, EVEN IF ECLINICALWORKS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
Exhibit A
Yext Terms and Conditions
1. Customer acknowledges and agrees that (i) the Software may involve distribution of all business data and other information or content that is made available by or on behalf of Customer in connection with its use of the Software (“Customer Content”), including but not limited to business listing information (e.g. store location, hours of operation, and contact information) and/or other interactions with third parties (the “Publishers”) that own or operate online business directories, search web sites, social media web sites, mobile apps or other online properties (the “Publisher Sites”). All Customer Content shall be subject to the Publishers’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion, or modified at any time to comply with such policies. Yext does not guarantee that any Customer Content will be displayed on any Publisher Site and the appearance and/or location of any Customer Content placement may change at any time.
2. Customer shall not: (i) copy, modify, prepare derivative works of, decompile or reverse engineer any Software, the portal, or any portion of any of the Software, (ii) use the Software or the portal to store or transmit any malware, or for any unlawful or fraudulent purpose, (iii) use the Software or the portal to create or assist a third party in creating a competing product, (iv) sell, resell, license, sublicense, distribute, rent or lease the portal or any Software, (v) bypass or breach any security device or protection used by the Software, or (vi) access or use the Software in any manner or for any purpose that infringes or misappropriates or otherwise violates any intellectual property right of any third party.
3. If Yext identifies any Customer Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non-compliance with a Publisher’s formatting guidelines (e.g. use of unsupported special characters), Yext may (but is not required to), in addition to its other available rights and remedies, modify the Customer Content to render it true.
4. Customer acknowledges that the Software involves the provision of Customer Content to Publishers for use and publication, and that such Publishers may require nonexclusive, perpetual, irrevocable, royalty-free, unlimited use rights (or a subset of such rights) with respect to such Customer Content, including, but not limited to, rights to publish and syndicate such Customer Content.
5. Customer acknowledges and agrees that eClinicalWork’s grants Yext and its affiliates and each applicable Publisher a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable (through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display and distribute the Customer Content
6. Customer shall only provide Customer Content that Customer owns or otherwise has all rights and permissions necessary to grant all relevant rights and permissions to Yext and its publisher partners with respect to such Customer Content.
7. Yext reserves the right to update, improve, replace, discontinue, modify or alter the specifications for or functionality of the Software from time to time. Customer agrees that its use of and access to the Software is subject to the “Product Terms” currently located at http://www.yext.com/terms/en-product-terms/, and are incorporated into, and form a part of, this Addendum. The Product Terms include, but are not limited to, Yext’s U.S. Privacy Law Addendum, which is available at https://www.yext.com/terms/us-privacy-addendum.
8. Yext expressly disclaims any express and implied warranties and disclaims all liability to the fullest extent permitted under applicable law relating to the Software provided in this Addendum.
9. Customer waives any right to bring or participate in a class action litigation with respect to the Software. Yext shall be an intended third party beneficiary with respect to such class action waiver.
10. Customer represents, warrants and covenants that as of the Effective Date and at all times during the term of this Addendum it has obtained and grants to Yext, sufficient rights to access and use Customer Content solely to deliver the Software in accordance with this Addendum.
Terms and Conditions For the Enablement of Healow PRISMA (“Addendum”)
In addition to the terms and conditions within the EMR License Agreement between your practice (“Customer” and “You”) and eClinicalWorks, LLC (“eClinicalWorks”) that govern Your use of the eClinicalWorks electronic medical record software (“Software”), You agree to the terms and conditions below that control the embedding and use of the Healow Patient Record Information Search Module Aggregator (PRISMA) in your Software (“Healow Insights PRISMA (Healow Service)”). You also understand and agree that you are binding Customer to the terms and conditions because, as an administrator to the Software account, you have the authority to “opt in” on Customer’s behalf.
The Healow Insights PRISMA (Healow Service) enables the connectivity from the EMR to Healow Insights PRISMA (Healow Service) which allows for indexing of patient records and data from different sources on Company database or a third party database upon the approval of Customer to create a longitudinal view of patient record and make it searchable. By choosing to subscribe to this Healow Service, Customer understands and agreed to the fact that searched keywords will be stored and analyzed to improve the search experience of PRISMA. Healow Insights PRISMA (Healow Service) is owned and licensed by healow, LLC (“Healow”).
| Functionality | Customer may activate Healow Insights PRISMA (Healow Service) using the on-demand activation tool in the Product Activation section of the Software. Once the Healow Insights PRISMA (Healow Service) is activated, authorized users in Company’s database may access indexes of data for a more searchable user experience. |
| License | This Healow Insights PRISMA (Healow Service) is made available by eClinicalWorks through a license with healow, LLC. |
| Pricing | There is no charge for the Healow Insights PRISMA (Healow Service) during the first twelve (12) months (“Initial Term”). Upon expiration of the Initial Term, eClinicalWorks may introduce costs for this License. Company will be given at least ninety (90) days’ notice prior to the renewal or expiration of Initial Term of the pricing for this License. |
| As part of the Healow Insights PRISMA (Healow Service), all billing will be done on an annual basis. Accounting will be based on the activation date. | |
| EULAs | To utilize PRISMA, you are also required to agree to the terms and conditions for CommonWell Health Alliance or Carequality. Further, PRISMA utilizes Stedman’s Medical Abbreviations, Acronyms and Symbols © 2022 Wolters Kluwer Health and content from Unified Medical Language System (UMLS) by the U.S. National Library of Medicine. Customer agrees to obtain a license to access UMLS content from the U.S. National Library of Medicine. All third-party trademarks are trademarks of their respective owners. |
| Customer understands and agrees that this product contains third party content from the University of Wisconsin System, and Customer agrees to the terms of Exhibit A. The most recent terms and conditions as of November 1, 2022 from the University of Wisconsin System are included in Exhibit A. Such terms may be updated from time to time and it is Customer’s responsibility to periodically check such language to agree to any new terms. The most recent terms and conditions can be found at: https://problemlist.org/download/ | |
| Disclaimers | By default, data that has marked as “PSAC” by the Customer will only be visible by the “break the glass” feature. “PSAC” data is data or encounters that the Customer has restricted from other viewers within the practice. If Customer chooses, Customer may set up PRISMA’s security to restrict PSAC data from being visible within the Company entirely. This option is available only in versions released on or after February 24, 2022 or V11.52.305.41 or higher. Please reach out to eClinicalWorks for more information related to this feature. |
| PRISMA will store all searched keywords and analyze them to improve the search experience within PRISMA. Customer consents to all such use. | |
| Further, PRISMA may only display the most recent data from records successfully retrieved for this patient based on user’s selection from your practice and its participating networks. This is not intended to be a complete representation of the patient’s medical chart. The Search Insights and Clinical Insights Tab problem-oriented views are generated off of third-party mappings. The data that displays within the problem-oriented views should not supersede your own clinical decision making. Providers agree to use their professional medical judgement when making medical decisions. | |
| Cancellation | To cancel the Healow Insights PRISMA (Healow Service), Customer may deactivate access within the Software at any time. |
IN THE EVENT THAT THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THE EMR LICENSE AGREEMENT AND THIS ADDENDUM, THE EMR LICENSE AGREEMENT SHALL RULE.
Exhibit A
End User License
Problem Concept Maps
The Problem Concept Maps are copyright © 2021, Board of Regents of the University of Wisconsin System. The Problem Concept Maps contain material created by third parties as identified in the “Notice of Third Party Content and Copyright Terms” below and may only be used pursuant to the terms of use associated with such content.
The Problem Concept Maps use publicly available data courtesy of the U.S. National Library of Medicine (NLM), National Institutes of Health, Department of Health and Human Services; NLM is not responsible for the Problem Concept Maps and does not endorse or recommend it or any other product. The data contained within the Problem Concept Maps may not reflect the most current or accurate data available from NLM.
The Problem Concept Maps (the “Maps”) are made available under the terms of this license as a service to the public by The Center for Problem Concept Maps at the University of Wisconsin-Madison in connection with the University of Wisconsin-Madison’s outreach mission. The Maps represent a knowledge base of medications and diagnostic tests that are commonly associated with particular medical conditions, as determined by consensus of physicians contributing to development of the Maps. The Maps do not represent every possible medication, diagnostic test or relevant data that may be associated with a particular condition in general or for a specific patient. As such, the use of the Maps in any problem-oriented view of information contained within a patient’s electronic health record is not a substitute for a comprehensive review of a patient’s entire medical record by a qualified medical professional.
In addition, the Maps are intended for informational purposes only in an electronic health record to summarize diagnostic test information and medication treatment for tests that have already been performed and treatments that are already underway. The Maps are not intended to be used to provide guidance about selection of diagnostic tests or medication treatments. Medications, diagnostic tests, and other relevant data that are or have been commonly associated with medical conditions do not necessarily represent the current standard of care as such information may change over time. The maps are not a substitute for professional medical advice or a medical professional’s independent evaluation and clinical judgment.
TERMS AND CONDITIONS
In order to use the Problem Concept Maps, you (“You” or “User”) must agree to the applicable terms and conditions below.
I. DEFINITIONS
End User—a business entity who incorporates the Maps into a system for clinical use, such as an EHR used by the entity, or an individual who downloads the maps for education, scholarly research, personal use, curiosity or otherwise.
Commercial Entity-a business entity that incorporates the Maps into an electronic health record or healthcare terminology software for the purpose of distributing the software to an End User or other third party.
II. Terms for Everyone
1. You may download and use the Maps for research and educational purposes, and incorporate the information contained within the Maps into electronic health records and healthcare terminology software for commercial or non-commercial purposes, subject to the terms and conditions of this Agreement.
2. To prevent the dilution of the purpose of the Center for Problem Concept Maps of providing a definitive standard for relationships between problems and relevant data, You shall not use any of the Maps for the purpose of developing or promulgating a different standard for relevant data related to clinical problems.
3. You may not redistribute the Maps or map content as a table, as an application programming interface, or in any other format.
4. You shall not change the name of, or any contents of, any fields in the Maps. You may add new fields to the Maps database to attach additional information to existing Maps.
5. You may delete records from the Map table to deal with Your local requirements. You may also add new records to the Map table to deal with Your local requirements. Records deleted or added by You to deal with local requirements are not reflected in the official Maps Database maintained by the Center for Problem Concept Maps.
6. The Maps contain information created by third parties. You must ensure that You have obtained any and all licenses necessary for Your use of the third-party content and You are responsible for compliance with any and all license terms applicable to such third-party content. You are responsible for monitoring such licenses to ensure that You are aware of any modifications or changes to such licenses. Additional information about third party licenses is included below in the Notice of Third-Party Content and Copyright Terms.
7. You may not translate any of the Maps into a language other than English without permission from the Center for Problem Concept Maps. Permission may be requested via email at: problemconceptmaps@med.wisc.edu.
8. You are responsible for notifying the Center for Problem Concept Maps of any change in contact information so it can communicate any information it deems important to You.
9. The names “Problem Concept Maps” and “Center for Problem Concept Maps” may not be used in a way which could be interpreted as an endorsement or a promotion of any product or service without prior written permission of the Center for Problem Concept Maps. Further, no right to use the other trademarks of the University of Wisconsin-Madison is licensed hereunder. To request written permission, please contact contact@umark.wisc.edu.
10. Modifications to Agreement. The Center for Problem Concept maps reserves the right to modify the terms of this Agreement at any time. Any modification or additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Maps will be deemed to be acceptance of such modifications or additional terms. You are responsible for reviewing the problemlist.org website to ensure that You are aware of any changes.
11. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAPS ARE MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. INFORMATION FOR THE MAPS WILL BE ASSEMBLED FROM THE CONTRIBUTIONS OF MANY INDIVIDUALS, AND IT IS NOT POSSIBLE TO GUARANTEE ABSENCE OF ERROR. ANY EXPRESSED OR IMPLIED WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE. IN ADDITION, NEITHER THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM NOR CONTRIBUTORS TO THE MAPS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION CONTAINED WITHIN THE MAPS, THEIR FUNCTIONALITY WHEN INTEGRATED INTO AN ELECTRONIC HEALTH RECORD OR HEALTHCARE TERMINOLOGY SOFTWARE, OR THEIR ABILITY TO MEET YOUR NEEDS.
12. Assumption of Risk; Limitation of Liability. YOU ARE RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE MAPS IS IN COMPLIANCE WITH ANY LAWS OR REGULATIONS APPLICABLE TO SUCH USE, AND FOR ANY AND ALL DAMAGES OR LIABILITY ASSOCIATED WITH YOUR USE OF THE MAPS. BY USING THE MAPS, OR ANY COMPONENT THEREOF, YOU EXPRESSLY ASSUME ALL RISK ASSOCIATED WITH YOUR USE OF THE MAPS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE ANY AND ALL CLAIMS OF ANY KIND OR DESCRIPTION AGAINST THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, AND ITS OFFICERS, EMPLOYEES, AND AGENTS, AND ANY CONTRIBUTORS TO THE PROBLEM CONCEPT MAPS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE MAPS AND ANY DECISIONS YOU MAY MAKE AS A RESULT OF USING THE MAPS. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, OR ITS OFFICERS OR EMPLOYEES OR AGENTS, OR CONTRIBUTORS TO THE MAPS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OR ATTORNEYS’ FEES (INCLUDING, BUT NOT LIMITED TO, OPPORTUNITY COSTS; LOSS OF USE, DATA, SAVINGS OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT ARISING IN ANY WAY OUT OF THE USE OF THE MAPS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Hold harmless and indemnification. To the extent authorized by law (taking into account limitations imposed by any state tort claims statute or regulation applicable to You), You will indemnify and hold harmless the Board of Regents of the University of Wisconsin System and its officers, employees, and agents, from any liability, loss, claim, damages or expenses arising from or in connection with Your use of the Maps.
14. Reformation and severability. If any part of this agreement is deemed unenforceable or invalid, such provision shall be reformed to the extent necessary in as similar as terms as possible so as to be valid and enforceable to the fullest extent permitted by law, and the remaining provisions shall remain fully enforceable and valid.
15. Governing law and jurisdiction. This license shall be construed and interpreted in accordance with the laws of the State of Wisconsin, United States of America, excluding its conflicts of law principles. In case of any dispute over the interpretation or the execution of this Agreement, the parties undertake to make every effort to settle their dispute by amicable agreement. If the parties are unable to settle a dispute arising out of or in connection with this Agreement, the territorially competent court shall be that of the place where the defendant resides. Notwithstanding any statement to the contrary herein, nothing in this Agreement shall be construed as a waiver of the sovereign immunity of any state of the United States.
III. Additional Terms for Commercial Entities
You may incorporate information contained within the Maps into electronic health records software and terminology software for distribution to Your customers.
If You are a Commercial Entity incorporating content from the Maps into a product for distribution to clients or customers, You agree to the terms and conditions governing use of the Maps. You must ensure that a representative of any client or customer obtaining access to the Maps through You acknowledges and agrees to the terms of this Agreement, either by directing such clients to obtain the Maps through the problemlist.org website, or by incorporating the above notice and the terms and conditions of use by reference into Your agreement with clients or customers. You must retain a record of all client or customer agreements that are not made through the problemlist.org website and make such record available to the Center for Problem Concept Maps upon request.
IV. Notice of Third-Party Content and Copyright Terms
Problem Concept Maps depict relationships between clinical problems and related data. End Users of Problem Concept Maps are required by these terms to ensure they have an authorized license for the components below. Commercial Entities are required by these terms to ensure that their incorporation and subsequent distribution of Problem Concept Maps does not violate the licenses listed below:
1. SNOMED or Other Vocabulary for Clinical Problems
The Maps database supplies a SNOMED Definition for each clinical problem. Licensees may choose to use this SNOMED definition, or may use another vocabulary for clinical problems.
If the Licensee uses SNOMED the following conditions apply:
SNOMED Clinical Terms (SNOMED CT®) is used by permission of the International Health Terminology Standards Development Organisation (IHTSDO) under license. All rights are reserved.
SNOMED CT® was originally created by The College of American Pathologists. “SNOMED” and “SNOMED CT” are registered trademarks of the IHTSDO. Use of SNOMED CT content is subject to the terms and conditions set forth in the SNOMED CT Affiliate License Agreement. It is the responsibility of those implementing this product to ensure they are appropriately licensed and for more information on the license, including how to register as an Affiliate Licensee, please refer to http://www.snomed.org/snomed-ct/get-snomedct or info@snomed.org. Under the terms of the Affiliate License, use of SNOMED CT in countries that are not IHTSDO Members is subject to reporting and fee payment obligations.
2. LOINC for Lab and other Clinical Results
LOINC is an important component of Problem Concept Maps. The Regenstrief Institute distributes LOINC free of charge. Licensees of the Maps must follow the LOINC terms of use that are outlined at https://loinc.org/license.
3. RxNorm for Medications
The Unified Medical Language System (UMLS) from the U.S. National Library of Medicine (https://www.nlm.nih.gov/research/umls/) is the source of RxNorm® content and is available to authorized UMLS Metathesaurus Licensees.
Terms and Conditions for the Enablement of Healow FHIR Service for Patient-Facing Applications (“Addendum”)
In addition to the terms and conditions within the EMR License Agreement between your practice (“Company” and “You”) and eClinicalWorks, LLC (“eClinicalWorks”) that govern Your use of the eClinicalWorks electronic medical record software (“Software”), You agree to the terms and conditions below that control the embedding and use of the Healow FHIR Cloud Service for Patient-Facing Apps in your Software (“Healow Service”). You also understand and agree that you are binding your Company to the terms and conditions because, as an administrator to the Software account, you have the authority to “opt in” on your Company’s behalf.
The Healow Service enables the connectivity from the EMR to patient-facing applications (“Third-Party Applications”), which provides a means for the Third-Party Application to query data shared by patients of Company. Healow Service is owned and licensed by healow, LLC (“Healow”). You understand that the Third-Party Application is owned and licensed by an entity not owned, operated or affiliated with eClinicalWorks (“Third-Party”). You understand that this Third-Party may have additional terms and conditions regarding use and access to the Third-Party Application (“Third Party Terms”). You also agree to have the proper license to use this Third-Party Application as well as any additional documentation (including but not limited to any “Data Use” or “Business Associate” agreement, as applicable) with the Third-Party prior to accessing the Application, if applicable.
| Functionality | Company may authorize this Healow Service using the on-demand activation tool in the Product Activation section of the Software. Once the Healow Service is activated, web-enabled patients may authorize any Third-Party Application to access their data according to the FHIR (Fast Healthcare Interoperability Resources) standard, which has been designed by the Health Level Seven International (HL7) organization for the electronic exchange of health information. Authentication of the patient using Healow credentials through the Third-party Application is required for this data exchange to work. |
| License | This Healow Service is made available by eClinicalWorks through a license with healow, LLC |
| Pricing | There is no charge for the Healow Service during the Initial Term. Upon expiration of the Initial Term, eClinicalWorks may introduce costs for this License. Company will be given at least ninety (90) days’ notice prior to the renewal or expiration of Initial Term of the pricing for this License. |
| As part of the Healow Service, all billing will be done on an annual basis. Accounting will be based on the activation date. | |
| Cancellation | To cancel the Healow Service, Company may deactivate access within the Software at any time. |
| No Excuse for Professional Judgment | Company acknowledges that the Third-Party Application may assist in exercising professional medical judgement. To the extent the Third-Party Application causes an error leading to patient safety issues, eClinicalWorks (including Healow) shall have no indemnification or liability obligation to You or any other party related to any such error. In the event that the Third-Party Application or any report or information generated by the Third-Party Application is used in connection with any diagnosis or treatment by You or any agents, representatives, and the like, of the Company, you agree that such liability shall be between the Company and the Third-Party Application. |
| Miscellaneous | You, on behalf of yourself and any authorized users, acknowledges that eClinicalWorks is not a party to any agreement that may take place between You and/or the Third-Party Application. The Third-Party Application is solely responsible for the Application and any errors, issues, bugs or content (Issues”) within the Application shall be managed by the Third-Party Application. eClinicalWorks customer support team is not responsible for troubleshooting any Issues regarding the Third-Party Application. |
| The Third-Party Application shall only be accessible in the United States. | |
| IN THE EVENT THAT THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THE EMR LICENSE AGREEMENT AND THIS ADDENDUM, THE EMR LICENSE AGREEMENT SHALL RULE. |
Addendum for healow® Insights, Real Time Benefit Check, and Electronic Prior Authorization
Healow Insights
Customer hereby grants its consent and authorization (the "Consent and Authorization") to its business associate, eClinicalWorks, LLC (“eCW”) and eCW’s affiliate Healow, LLC (collectively, "Healow Insights") to (i) connect to, and receive member data and member-related data and requests from, all applicable Healow Associated Health Plans (“the Health Plans”), as identified as listed on eCW support portal or by request to consent@healow.com, (ii) access and extract those medical records, including patient information (the “Records”) requested by the Health Plans from Customer’s electronic medical record system, and prepare and submit such Records to the Health Plans, and (iii) include certain patient-related data and information from the Health Plans and/or Healow Insights in Customer’s medical records, in each case for the Health Plans’ “payment” and “health care operations” activities (including those relating to quality assessment and improvement), as defined by and to the extent permitted by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations. Healow Insights reserves the right to revise the list of Health Plans at any time within its sole discretion. Customer may withdraw its consent to any particular Health Plan by reaching out to their eCW support team or by contacting consent@healow.com. Customer represents that it has all consents and authorizations as required by applicable law to disclose the Records to Healow Insights and the Health Plans for such purposes. Healow Insights is authorized and directed to take the above-described actions and is released from any and all claims, liabilities or damages for acting pursuant to this Consent and Authorization.
Real Time Benefit Check
| Functionality | eClinicalWorks is providing Real Time Benefit Check (RTBC) services, which are real time integration service retrieving and displaying patient specific benefit and coverage details, including patient out-of-pocket costs and/or Prior Authorization requirements. |
| License | These RTBC services are made available by eClinicalWorks through a license with healow, LLC. |
| Customer License | Subject to the terms and conditions of this Addendum, eClinicalWorks grants and Customer accepts a nonexclusive, nontransferable, revocable license for the Providers to access and use the functionality of the Software during the term of this Addendum. Additionally, eClinicalWorks grants Customer Personnel the right to access Software during the term of this Addendum. Use of Software and services by both Providers and Customer Personnel are subject to the terms of this Addendum. Customer shall be liable for any breach of this Addendum by its Providers and/or Customer Personnel. |
| Customer Representations | (a) By accepting this Addendum, the individual making that acceptance is authorized to do so and to bind the Customer to the terms of this Addendum. (b) Customer understands that performing Eligibility Check is prerequisite for RTBC services (e.g. Rx Eligibility Check). (c) Customer requests, authorizes, and directs eClinicalWorks to transmit protected health information (PHI) to its business affiliates who provides RTBC services to facilitate the agreement between Customer and the business affiliates. |
| Customer Modifications and Enhancements | Customer may not make any modifications or enhancements to the Software without eClinicalWorks’ prior written consent. |
| Proper Use of Software | The Customer acknowledges that the continued integrity of the Software and eClinicalWorks’ performance of its obligations described in this Addendum are dependent upon Customer’s use of the Software in accordance with the documentation available to Customer and the terms and conditions of this Addendum. Customer may not attempt to sell, sublicense, lease, permit, rent or transfer in any way whatsoever the Software. Customer agrees that it will not, at any time, without the prior written consent of eClinicalWorks, duplicate, decompile, disassemble or reverse engineer any software included within the Software, including without limitation the applications, to develop functionally similar software or permit any third party to do any of the foregoing. Customer agrees to not grant access to any third party or allow any third party to use the Software for any purpose without the prior written consent of eClinicalWorks. |
| Ownership and Proprietary Rights | eClinicalWorks and/or its licensor(s) retain all right, title, and interest in and to Software and any updates, changes, derivative works, enhancements, and/or modifications thereto. This Addendum does not grant Customer any IP Rights in the Software or any of its components. As between eClinicalWorks and Customer, eClinicalWorks and/or its licensor(s) are, and will be, the owner of (inclusive of all IP Rights therein) (i) the services, (ii) the Software, (iii) any other templates, ideas, methodologies, designs, materials, or technology developed or provided by eClinicalWorks. |
| Third Party Components | Customer acknowledges and agrees that the Software may contain or interface with third-party applications, software and/or materials and open source software (collectively, “Third-Party Software Components”) and Customer will comply with any applicable end user license agreements (“Third-Party EULAs”). NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, ALL Third-Party Software Components ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. |
| Disclaimer | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTEES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER, ANY OF ITS AFFILIATES OR ANY OTHER PARTY WITH RESPECT TO THE SOFTWARE, APPLICATIONS, SERVICES, PRODUCTS, DOCUMENTATION, OR DELIVERABLES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. |
| Limitation of Liability | ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER WITH RESPECT TO THE SERVICES GIVING RISE TO THE LIABILITY OVER THE MONTHS IN WHICH LIABILITY OCCURRED NOT TO EXCEED TWELVE (12) MONTHS. ECLINICALWORKS WILL NOT BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS ADDENDUM, THE SOFTWARE, THE APPLICATIONS, OR SERVICES, EVEN IF ECLINICALWORKS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
Electronic Prior Authorization (ePA)
| Functionality | Customer desires to add the Electronic Prior Authorizations (ePA) product, which electronically transmits information between prescribers and Pharmacy Benefit Managers to determine whether a Prior Authorization is required, approved, or processed for a prescribed drug. |
| License | This ePA product is made available by eClinicalWorks through a license with healow, LLC. |
| Third Party Software | Healow’s ePA product utilizes software provided by CoverMyMeds, LLC. Customer hereby agrees to CoverMyMeds’ Terms of Service made available at https://www.covermymeds.com/main/about/privacy/tos/. In agreeing to CoverMyMeds’ Terms of Service on behalf of all authorized users of Customer, Customer also agrees to provide CoverMyMeds’ Terms of Service to each individual user, or make CoverMyMeds’ Terms of Service visible to each user prior to providing them access to the ePA product in order to notify each user of these terms and conditions. |
| Customer License | Subject to the terms and conditions of this Addendum, eClinicalWorks grants and Customer accepts a nonexclusive, nontransferable, revocable license for the Providers to access and use the functionality of the Software during the term of this Addendum. Additionally, eClinicalWorks grants Customer Personnel the right to access Software during the term of this Addendum. Use of Software and services by both Providers and Customer Personnel are subject to the terms of this Addendum. Customer shall be liable for any breach of this Addendum by its Providers and/or Customer Personnel. |
| Customer Modifications and Enhancements | Customer may not make any modifications or enhancements to the Software without eClinicalWorks’ prior written consent. |
| Proper Use of Software | The Customer acknowledges that the continued integrity of the Software and eClinicalWorks’ performance of its obligations described in this Addendum are dependent upon Customer’s use of the Software in accordance with the documentation available to Customer and the terms and conditions of this Addendum. Customer may not attempt to sell, sublicense, lease, permit, rent or transfer in any way whatsoever the Software. Customer agrees that it will not, at any time, without the prior written consent of eClinicalWorks, duplicate, decompile, disassemble or reverse engineer any software included within the Software, including without limitation the applications, to develop functionally similar software or permit any third party to do any of the foregoing. Customer agrees to not grant access to any third party or allow any third party to use the Software for any purpose without the prior written consent of eClinicalWorks. |
| Ownership and Proprietary Rights | eClinicalWorks and/or its licensor(s) retain all right, title, and interest in and to Software and any updates, changes, derivative works, enhancements, and/or modifications thereto. This Addendum does not grant Customer any IP Rights in the Software or any of its components. As between eClinicalWorks and Customer, eClinicalWorks and/or its licensor(s) are, and will be, the owner of (inclusive of all IP Rights therein) (i) the services, (ii) the Software, (iii) any other templates, ideas, methodologies, designs, materials, or technology developed or provided by eClinicalWorks. |
| Consent | Customer is responsible for obtaining all necessary patient consent to permit eClinicalWorks to provide services as agreed upon in this Addendum. |
| Customer gives consent to eClinicalWorks and its affiliates to use and exchange PHI and PII for the purposes of providing and supporting ePA services, which shall include but not be limited to enhanced monitoring, customer support, contacting Pharmacy Benefit Managers, and contacting Customer in order to support the Prior Authorization and appeals process for initiated Prior Authorizations. Customer will have the ability to opt-out of ePA services by providing notice to eClinicalWorks as detailed in the original License Agreement. | |
| Customer Responsibilities | Any content provided by eClinicalWorks through the Software is for informational and educational purposes only and is not a substitute for the professional judgment of a Provider in diagnosing and treating patients. eClinicalWorks will at no time provide, direct, or control, and does not have the authority to provide, direct, or control, any service, function, or acts of Customer or Customer’s Providers that would constitute the clinical practice of medicine or the provision of professional medical services. Customer recognizes that eClinicalWorks does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on or transmitted through the Software (regardless if the foregoing is mentioned or transmitted by healthcare providers, insurance providers, or similar professionals or organizations). | Customer understands and agrees that Customer is solely responsible for and has sole and exclusive property of, and eClinicalWorks is not liable or responsible for, patients’ medical records; provided, that eClinicalWorks shall be afforded access to patient medical records to the extent required for providing the Software. |
| Third Party Components | Third Party Components Customer acknowledges and agrees that the Software may contain or interface with third-party applications, software and/or materials and open source software (collectively, “Third-Party Software Components”) and Customer will comply with any applicable end user license agreements (“Third-Party EULAs”). NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, ALL Third-Party Software Components ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. |
| Disclaimer | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTEES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER, ANY OF ITS AFFILIATES OR ANY OTHER PARTY WITH RESPECT TO THE SOFTWARE, APPLICATIONS, SERVICES, PRODUCTS, DOCUMENTATION, OR DELIVERABLES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. |
| Limitation of Liability | ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER WITH RESPECT TO THE SERVICES GIVING RISE TO THE LIABILITY OVER THE MONTHS IN WHICH LIABILITY OCCURRED NOT TO EXCEED TWELVE (12) MONTHS. ECLINICALWORKS WILL NOT BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS ADDENDUM, THE SOFTWARE, THE APPLICATIONS, OR SERVICES, EVEN IF ECLINICALWORKS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
Addendum For healow® Meet
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum (if accepted), and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the healow® Meet module to facilitate a group televisit. healow Meet is a functionality that allows a moderator to meet with a group of patients in a private view where patients do not see each other but the moderator can sell all participants. A “Moderator” is considered to be any Provider, Customer Personnel or other individual who moderates a healow Meet session. |
| healow Meet allows up to 50 participants per healow Meet visit. | |
| Notice | When using the product, a patient can only see the provider and their self on the screen. Any other parties who may join the call are not visible to that patient. Customer is solely responsible for determining if this method of providing medical services to patient is appropriate and compatible with applicable laws. |
| Customer’s Responsibilities | Any content provided by eClinicalWorks is for informational and educational purposes only and is not a substitute for the professional judgment of a Provider in diagnosing and treating patients. eClinicalWorks will at no time provide, direct, or control, and does not have the authority to provide, direct, or control, any service, function, or acts of Customer or Customer’s Providers that would constitute the clinical practice of medicine or the provision of professional medical services. Customer recognizes that eClinicalWorks does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on or transmitted through the healow Meet session (regardless if the foregoing is mentioned or transmitted by healthcare providers, insurance providers, or similar professionals or organizations). eClinicalWorks is not responsible for, and disclaims any and all liability resulting from, Customer’s communication with, or provision of healthcare services to, patients through healow Meet. Customer understands and agrees that Customer is solely responsible for, and eClinicalWorks is not liable or responsible for, ensuring that, with respect to Customer’s Providers using healow Meet: (i) each Provider has an unrestricted, active medical or other clinical license in any state or other professional certification; (ii) each Provider is providing professional clinical or medical services, including via healow Meet, in a manner that complies with all applicable laws, regulations, professionally recognized standards and policies and procedures applicable to Provider (including, but not limited to, laws and regulations regarding the provision of telemedicine and telehealth services); and (iii) each Provider has obtained consent from the patient to the extent required by, and in accordance with, all applicable laws, regulations, and standards, and has established a valid patient-provider relationship in compliance with all applicable laws, regulations, and standards. Customer understands and agrees that Customer is solely responsible for, and eClinicalWorks is not liable or responsible for, ensuring each Provider obtains and maintains any medical or professional liability insurance policy or policies as may be required by applicable laws, regulations, and standards. |
| Disclaimer | eClinicalWorks makes no representation or warranty about the patient’s identity, and eClinicalWorks cannot be held responsible for impersonation. Customer bears all responsibility for confirming a patient’s identity. Customer understands and agrees that eClinicalWorks makes no representations regarding the accuracy of information provided by patients through healow Meet. Customer understands and agrees that eClinicalWorks is not liable or responsible in any way for cancelled or otherwise unfulfilled healow Meet sessions or any injury resulting therefrom, or for any other injury resulting from the use of healow Meet whatsoever. Customer understands and agrees that patients must agree to the Terms of Use in order to access healow Meet. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. | |
| Potential Future Assignment | Customer acknowledges that eClinicalWorks may assign eClinicalWorks’ rights and obligations under this Addendum to healow, LLC (“healow”). If such assignment occurs, healow will assume all rights and responsibilities of eClinicalWorks under this Addendum. |
| Applicable law and reimbursement | Customer understands and agrees that eClinicalWorks does not guarantee, and is not responsible or liable for ensuring that the healow Meet will enable patients and Customer’s Providers to communicate in a manner that (i) complies with all applicable laws and regulations, including but not limited to laws and regulations regarding the provision of telemedicine and telehealth services, and/or (ii) qualifies for any partial or full reimbursement or insurance coverage from any third-party payors or insurers, or otherwise meets requirements imposed by third-party payors or insurers. Customer understands and agrees that eClinicalWorks makes no representations regarding the reimbursement status or coverage by third-party payors or insurers of any healthcare services provided via healow Meet, and is not responsible for any payments or collection of payments relating to such healow Meet from patients, third-party payors, insurers or others. |
Permitted Sublicensee License Agreement Pass-Through Terms for HealthWise
Healthwise, Incorporated (“Healthwise”) is a nonprofit organization whose mission since 1975 has been to Help People Make Better Health Decisions. Healthwise requires agreement to these terms for its products:
1.WARRANTY WAIVERS.
- a. Client, as the organization that uses and provides access to the Healthwise content, acknowledges that it has the discretion and responsibility to determine the type and accuracy of information that prompts delivery of the Healthwise content and related health messaging to which patient population. CLIENT IS SOLELY RESPONSIBLE FOR MAKING FINAL JUDGMENTS REGARDING DELIVERY OF THE HEALTHWISE CONTENT. HEALTHWISE DOES NOT GIVE MEDICAL ADVICE. Healthwise content is based on current medical literature and physician review. Healthwise content is intended to help people make better health care decisions and take greater responsibility for their own health. However, use of Healthwise content is not intended to replace the advice of a doctor.
- b. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT RESELLER, HEALTHWISE AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR THE RESULTS OF THE USE OF THE HEALTHWISE CONTENT, INCLUDING, BUT NOT LIMITED TO, USERS’ CHOOSING TO SEEK OR NOT TO SEEK PROFESSIONAL MEDICAL CARE, OR USERS’ CHOOSING OR NOT CHOOSING SPECIFIC TREATMENT BASED ON THE HEALTHWISE CONTENT.
- c. REGARDING HEALTHWISE CONTENT, RESELLER, HEALTHWISE, AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL RESELLER, HEALTHWISE OR ITS SUPPLIERS BE LIABLE FOR LOSS OF DATA, SUBSTITUTE SERVICES, LOSS OF PROFIT, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR ANY OTHER LEGAL THEORY.
2. MODIFICATIONS. Client may (or may request Reseller to) modify the Healthwise Patient Instructions only under the direction of a licensed healthcare professional. Client assumes all responsibility and liability, including malpractice liability, associated with any modifications. If any modifications are made, Client will adapt the copyright statement on the Healthwise products to indicate the modification and the retained ownership by Healthwise as follows: “©Healthwise, Incorporated. Information adapted under license by [Your Organization Name].” Other than this requirement, Client will not alter or delete copyright statements, disclaimers, warnings, notices, license restrictions, and/or limitations of liability provisions on or in the Healthwise content. Client may add disclaimers so long as it does not conflict with or modify the Healthwise disclaimers and/or proprietary notices.
3. INDEMNITY. Client will defend Reseller, Healthwise and their suppliers, and their officers, directors and employees (“Indemnitees”) against any claims and indemnify and hold Indemnitees harmless against any causes of action, losses, liabilities, expenses (including reasonable attorney’s fees) and obligations arising out of:
- a. Client determinations of which patient population will receive Healthwise content and the type and accuracy of information that prompts delivery of the Healthwise content; or
- b. Misuse, modification, or inappropriate distribution of the Healthwise content by Client or user.
4. NATIONAL CANCER INSTITUTE PHYSICIAN DATA QUERY (PDQ®). Some material in the PDQ® is from copyrighted publications of the respective copyright claimants. Users of PDQ are referred to the publication data appearing in the bibliographic citations, as well as to the copyright notices appearing in the original publication, all of which are hereby incorporated by reference. Because use of the PDQ data for insurance reimbursement decisions is contrary to the nature of the database, which is designed as a research tool and not to reflect all possible treatment options, Client agrees to not use it for reimbursement decision purposes.
5. CERNER MULTUM DRUG REFERENCE. The Multum Information Services, Inc. SDK patient education drug information service is included in the Healthwise content. Client will maintain all required Multum End-User Agreements included in the Healthwise content. Client acknowledges that users will be required to agree to the Multum End-User License Agreement by one of the following ways: (a) one time per user upon entry to the Multum content, leaving a “cookie” on the eligible user’s computer to record eligible user’s agreement; (b) upon entry to the Multum content at least once each user session; or (c) providing each eligible user a link to the Multum End-User License Agreement language. The link shall appear on each screen when the Multum content can be viewed by the user, and shall read: “Your use of the content provided in this service indicates that you have read, understood and agree to the End-User License Agreement, which can be accessed by clicking on this link.”
6. HEALTHNOTES, INC. COMPLEMENTARY AND ALTERNATIVE MEDICINE (CAM) DATABASE. If Healthnotes, Inc.’s CAM Database is included in the Licensed Product, Client shall not allow the CAM Database to be viewed or re-broadcast in a retail store or retail environment or on a website for any retail store or retail environment.
7. DRUG INTERACTION CHECKER. If the Healthwise Drug Interaction Checker using First Databank, Inc. (“FDB”) content is included as a part of the Licensed Product, Client shall not allow direct placement of links to the Drug Interaction Checker within pharmacy or medical practice management systems which support drug dispensing, medication order entry, prescription pricing, claims preparation, clinical medical records management applications, or the like. Client will maintain all required FDB End User Agreements included in the Licensed Product as directed by Healthwise. Client acknowledges that users will be required to affirmatively agree to the following notice and language in the First Databank End-User Terms of Use prior to obtaining access to the Drug Interaction Checker: “The drug information contained on this site is not exhaustive and is not intended to cover all possible uses, precautions, interactions or adverse effects, nor should it be construed to indicate that use of a particular drug is safe, appropriate or effective for you or anyone else. The drug information contained on this site is provided for general information purposes only and is not intended as individual medical advice and is not a substitute for the expertise and judgment of healthcare professionals. A healthcare professional should be consulted before taking any drug or commencing or discontinuing any course of treatment. To the fullest extent permitted by law, we (and our content providers) shall not have any liability or responsibility for damage or injury (including death) to you, other persons or property arising from any use of this drug information. The display and use of this drug information is subject to First DataBank End-User Terms of Use located at the FDB website.
By clicking through and enabling this feature, you acknowledge your review and acceptance of such Terms of Use and this notice.
Addendum for HEDIS Analytics
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | The HEDIS Analytics contains Healthcare Effectiveness Data and Information Set (HEDIS®) measures and specifications (the “HEDIS Data”). The HEDIS Data is owned and copyrighted by the National Committee for Quality Assurance (“NCQA”). Customer hereby agrees to the NCQA terms in Exhibit B. |
| Functionality | “HEDIS Analytics” means dashboards which will include up to 50 of the HEDIS and/or other clinical quality measures as listed on Exhibit A of this Agreement. |
| Notice | Customer bears the responsibility for obtaining and, where necessary, renewing patient consent to participate in this service. |
| Included Implementation Services | Included Implementation Services means remote training, set-up and configuration services for the following products if included in the package selected: Overview of HEDIS Analytics The included days break down as one day (eight hours) for each module respectively: HEDIS. If the Customer is already contracted for one or more of the products in the bundle, then the implementation time for that product is not included in this agreement. Included Implementation Services are to be used for products included in the Population Health Bundle. Service hours are to be used within six months of deployment of any one component of the bundle, unused hours will not be refunded or credited. A thirty-six (36) month Initial Term is required to have services included in the monthly subscription fee. Additional remote service hours can be purchased at $100 per hour. |
| Fees and Payment | If HEDIS Dashboard is purchased as a part of a software bundle then pricing outlined in the bundle agreement will apply. Note: |
| Initial Term | 12 months. |
| Auto Renewal or Cancellation | By agreeing to this Addendum, Customer authorizes eClinicalWorks to auto-renew this Addendum for an additional one-year period that commence after the end of previous term. To discontinue auto renewal or cancel this Addendum, Customer may contact eClinicalWorks at least 30 days prior to the end of the term. |
| Disclaimer | ECLINICALWORKS DISCLAIMS ANY WARRANTY THAT THE SURVEY WILL PRODUCE SPECIFIC RESULTS OR SATISFY REPORTING OR CERTIFICATION REQUIREMENTS. The survey functionality’s usefulness depends on information provided by Customer. |
| Indemnification | Customer agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with the services provided by the processing partner described in this Addendum. |
| Limitation of Liability | ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE MONTHS IN WHICH LIABILITY OCCURRED NOT TO EXCEED TWELVE (12) MONTHS. |
Exhibit A
Quality Measure
| Measure ID | Category | Measure Description |
|---|---|---|
| 2020_0038-1 | Pediatric | HEDIS 2020 Childhood Immunization Status: Rotavirus - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-10 | Pediatric | HEDIS 2020 Childhood Immunization Status: Pneumococcal - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-11 | Pediatric | HEDIS 2020 Childhood Immunization Status: VZV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-12 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 2 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-13 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 3 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-14 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 4 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-15 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 5 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-16 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 6 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-17 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 7 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-18 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 8 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-19 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 9 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-2 | Pediatric | HEDIS 2020 Childhood Immunization Status: DTap - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-20 | Pediatric | HEDIS 2020 Childhood Immunization Status: Combination 10 - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-3 | Pediatric | HEDIS 2020 Childhood Immunization Status: Hep A - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-4 | Pediatric | HEDIS 2020 Childhood Immunization Status: Hep B - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-5 | Pediatric | HEDIS 2020 Childhood Immunization Status: HiB - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-6 | Pediatric | HEDIS 2020 Childhood Immunization Status: Influenza - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-7 | Pediatric | HEDIS 2020 Childhood Immunization Status: IPV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-8 | Pediatric | HEDIS 2020 Childhood Immunization Status: MMR - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_0038-9 | Pediatric | HEDIS 2020 Childhood Immunization Status: PCV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AAP-01 | Access/Availability of Care | HEDIS 2020 Adults Access to Preventive Services(AAP) Age: 20-44 Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AAP-02 | Access/Availability of Care | HEDIS 2020 Adults Access to Preventive Services(AAP) Age: 45-64 Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AAP-03 | Access/Availability of Care | HEDIS 2020 Adults Access to Preventive Services(AAP) Age: 65 & over Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AAP-M-01 | Access/Availability of Care | HEDIS 2020 Adult Access to Preventive Services (AAP) Age: 20-44 Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AAP-M-02 | Access/Availability of Care | HEDIS 2020 Adult Access to Preventive Services (AAP) Age: 45-64 Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AAP-M-03 | Access/Availability of Care | HEDIS 2020 Adult Access to Preventive Services(AAP) Age: 65 & over Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_ABA | Prevention and Screening | HEDIS 2020 Adult BMI Assessment - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_ADV | Prevention and Screening | HEDIS 2020 Annual Dental Visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_AWC | Pediatric | HEDIS 2020 Adolescent Well-Care Visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_BCS | Prevention and Screening | HEDIS 2020 Breast Cancer Screening - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CAP01 | Access/Availability of Care | Childrens and Adolescents Access to Primary Care - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CAP02 | Access/Availability of Care | Childrens and Adolescents Access to Primary Care - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CAP03 | Access/Availability of Care | Childrens and Adolescents Access to Primary Care - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CAP04 | Access/Availability of Care | Childrens and Adolescents Access to Primary Care - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CBP | Prevention and Screening | HEDIS 2020 Controlling High Blood Pressure (CBP) : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CCS | Prevention and Screening | HEDIS 2020 Cervical Cancer Screening : Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_CDC | Prevention and Screening | HEDIS 2020 Comprehensive Diabetes Care: HbA1c Superior Control (HbA1c Less than 7.0) - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_COA-1 | Prevention and Screening | HEDIS 2020 Care for Older Adults: Advance Care Planning- Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_COA-2 | Prevention and Screening | HEDIS 2020 Care for Older Adults: Functional Status Assessment- Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_COA-3 | Prevention and Screening | HEDIS 2020 Care for Older Adults: Medication Review- Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_COA-4 | Prevention and Screening | HEDIS 2020 Care for Older Adults: Pain Assessment- Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_COL | Prevention and Screening | HEDIS 2020 Colorectal Cancer Screening : 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_IMACMB1 | Pediatric | HEDIS 2020 Immunization for Adolescents (IMA) - Meningococcal and Tdap - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_IMACMB2 | Pediatric | HEDIS 2020 Immunization for Adolescents (IMA) - Meningococcal,Tdap,HPV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_IMAHPV | Pediatric | HEDIS 2020 Immunization for Adolescents (IMA) - HPV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_IMAMEN | Pediatric | HEDIS 2020 Immunization for Adolescents (IMA) - Meningococcal - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_IMATD | Pediatric | HEDIS 2020 Immunization for Adolescents (IMA) - Tdap - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_LSC | Prevention and Screening | Lead Screening in Children (LSC)- Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NCS | Prevention and Screening | HEDIS 2020 Non-Recommended Cervical Cancer Screening in Adolescent Females - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0033-1 | Prevention and Screening | HEDIS 2020 Chlamydia Screening in Women Ages 16-20 - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0033-2 | Prevention and Screening | HEDIS 2020 Chlamydia Screening in Women Ages 21-24 - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0055 | Diabetes | HEDIS 2020 Comprehensive Diabetes Care: Eye Exam - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0057 | Diabetes | HEDIS 2020 Comprehensive Diabetes Care: A1C Testing - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0059 | Diabetes | HEDIS 2020 Comprehensive Diabetes Care: HbA1c Poor Control (HbA1c Greater than 9.0) - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0061 | Diabetes | HEDIS 2020 Comprehensive Diabetes Care: BP Control (less than 140/90) : 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0062 | Diabetes | HEDIS 2020 Comprehensive Diabetes Care: Nephropathy Screening - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0063 | Diabetes | Diabetes: LDL Screening |
| 2020_NQF0064 | Diabetes | Diabetes: LDL Control |
| 2020_NQF0575 | Diabetes | HEDIS 2020 Comprehensive Diabetes Care: A1c Control (less than 8.0) - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_NQF0575-1 | Diabetes | Diabetes: A1c Tests (Less than 9.0) |
| 2020_W15 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - At least One Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-0 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - No Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-1 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - One Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-2 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - Two Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-3 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - Three Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-4 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - Four Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-5 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - Five Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W15-6 | Pediatric | HEDIS 2020 Well-Child Visits in the First 15 Months of Life - Six or more Well-Child visit - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W34 | Pediatric | HEDIS 2020 Well-Child Visits in the Third, Fourth, Fifth and Sixth Years of Life - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W34-3 | Pediatric | HEDIS 2020 Well-Child Visits in the Third Year of Life - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W34-4 | Pediatric | HEDIS 2020 Well-Child Visits in the Fourth Year of Life - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W34-5 | Pediatric | HEDIS 2020 Well-Child Visits in the Fifth Year of Life - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_W34-6 | Pediatric | HEDIS 2020 Well-Child Visits in the Sixth Year of Life - Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_WCC-1 | Prevention and Screening | HEDIS 2020 Weight Assessment and Counseling for Nutrition and Physical Activity for Children (3-11)- Adjusted, Certified, Unaudited HEDIS Rate |
| 2020_WCC-2 | Prevention and Screening | HEDIS 2020 Weight Assessment and Counseling for Nutrition and Physical Activity for Adolescents (12-17)- Adjusted, Certified, Unaudited HEDIS Rate |
| 2021_NQF0418 | Prevention and Screening | PREV-12 (NQF 0418): Preventive Care and Screening - Screening for Clinical Depression and Follow-up Plan |
| AAP-01 | Access/Availability of Care | Ambulatory or Preventive care visit (Age: 20-44 with Commercial Insurance) |
| AAP-02 | Access/Availability of Care | Ambulatory or Preventive care visit (Age: 45-64 with Commercial Insurance) |
| AAP-03 | Access/Availability of Care | Ambulatory or Preventive care visit (Age: 65 and above with Commercial Insurance) |
| AAP-M-01 | Access/Availability of Care | Ambulatory or Preventive care visit (Age: 20-44 with Medicare/Medicaid) |
| AAP-M-02 | Access/Availability of Care | Ambulatory or Preventive care visit (Age: 45-64 with Medicare/Medicaid) |
| AAP-M-03 | Access/Availability of Care | Ambulatory or Preventive care visit (Age: 65 and above with Medicare/Medicaid) |
| ADV | Prevention and Screening | Annual Dental Visit |
| AWC | Pediatric | Adolescent Well-Care Visits Age:12-21 |
| BCS | Prevention and Screening | Breast Cancer Screening |
| CAP-01 | Access/Availability of Care | Children and Adolescents Access to Primary Care Practitioners (1-2 years) |
| CAP-02 | Access/Availability of Care | Children and Adolescents Access to Primary Care Practitioners (Above 2 years till 6 years) |
| CAP-03 | Access/Availability of Care | Children and Adolescents Access to Primary Care Practitioners (7 years to 11 years) |
| CAP-04 | Access/Availability of Care | Children and Adolescents Access to Primary Care Practitioners (12 years to 19 years) |
| CBP | Prevention and Screening | Controlling High Blood Pressure:Ages 18-85 |
| CCS | Prevention and Screening | Cervical Cancer Screening |
| CDC | Cardiac | Diabetes: HbA1c Superior Control (HbA1c Less than 7.0) |
| CMC-1 | Cardiac | Cholesterol Management for Cardiac Patients: Screening |
| CMC-2 | Cardiac | Cholesterol Management for Cardiac Patients: Control |
| COA-1 | Prevention and Screening | Care for Older Adults: Advance Care Planning |
| COA-2 | Prevention and Screening | Care for Older Adults: Functional Status Assessment |
| COA-3 | Prevention and Screening | Care for Older Adults: Medication Review |
| COA-4 | Prevention and Screening | Care for Older Adults: Pain Assessment |
| COL | Prevention and Screening | Colorectal Cancer Screening |
| COVID19-1 | Respiratory | Positive Respiratory Illness Screening |
| COVID19-2 | Respiratory | COVID-19 Diagnosis |
| CWP | Pediatric | Appropriate Testing for Children with Pharyngitis |
| DRR-1 | Behavioral | Depression Remission or Response for Adolescents and Adults - Follow-Up PHQ-9 |
| DRR-1_2020 | Behavioral | HEDIS 2020 Depression or Response for Adolescent and Adults (Follow up PHQ-9) Adjusted, Certified, Unaudited HEDIS Rate |
| DRR-1_MY2020 | Behavioral | HEDIS MY2020 Depression or Response for Adolescent and Adults (Follow up PHQ-9) Adjusted, Certified, Unaudited HEDIS Rate |
| DRR-2 | Behavioral | Depression Remission or Response for Adolescents and Adults - Remission |
| DRR-2_2020 | Behavioral | HEDIS 2020 Depression or Response for Adolescent and Adults (Remission) Adjusted, Certified, Unaudited HEDIS Rate |
| DRR-2_MY2020 | Behavioral | HEDIS MY2020 Depression or Response for Adolescent and Adults (Remission) Adjusted, Certified, Unaudited HEDIS Rate |
| DRR-3 | Behavioral | Depression Remission or Response for Adolescents and Adults - Response |
| DRR-3_2020 | Behavioral | HEDIS 2020 Depression or Response for Adolescent and Adults (Response) Adjusted, Certified, Unaudited HEDIS Rate |
| DRR-3_MY2020 | Behavioral | HEDIS MY2020 Depression or Response for Adolescent and Adults (Response) Adjusted, Certified, Unaudited HEDIS Rate |
| LBP | Musculoskeletal | Use of Imaging Studies for Low Back Pain (Inverse Measure) |
| LSC | Pediatric | Lead Screening in Children |
| MY2020_0038-1 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Rotavirus - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-10 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Pneumococcal - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-11 | Pediatric | HEDIS MY2020 Childhood Immunization Status: VZV - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-12 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 2 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-13 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 3 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-14 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 4 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-15 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 5 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-16 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 6 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-17 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 7 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-18 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 8 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-19 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 9 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-2 | Pediatric | HEDIS MY2020 Childhood Immunization Status: DTap - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-20 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Combination 10 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-3 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Hep A - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-4 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Hep B - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-5 | Pediatric | HEDIS MY2020 Childhood Immunization Status: HiB - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-6 | Pediatric | HEDIS MY2020 Childhood Immunization Status: Influenza - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-7 | Pediatric | HEDIS MY2020 Childhood Immunization Status: IPV - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-8 | Pediatric | HEDIS MY2020 Childhood Immunization Status: MMR - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_0038-9 | Pediatric | HEDIS MY2020 Childhood Immunization Status: PCV - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_AAP-01 | Access/Availability of Care | Adults Access to Preventive Services(AAP) Age: 20-44 Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_AAP-02 | Access/Availability of Care | Adults Access to Preventive Services(AAP) Age: 45-64 Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_AAP-03 | Access/Availability of Care | Adults Access to Preventive Services(AAP) Age: 65 & over Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_AAP-M-01 | Access/Availability of Care | Adult Access to Preventive Services (AAP) Age: 20-44 Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_AAP-M-02 | Access/Availability of Care | Adult Access to Preventive Services (AAP) Age: 45-64 Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_AAP-M-03 | Access/Availability of Care | Adult Access to Preventive Services(AAP) Age: 65 & over Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_ADV | Prevention and Screening | HEDIS MY2020 Annual Dental Visit - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_BCS | Prevention and Screening | HEDIS 2020 Breast Cancer Screening - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_COL | Prevention and Screening | MY2020_COL: HEDIS MY2020 Colorectal Cancer Screening (COL) - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_IMACMB1 | Pediatric | HEDIS MY2020 Immunization for Adolescents (IMA) - Meningococcal and Tdap - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_IMACMB2 | Pediatric | HEDIS MY2020 Immunization for Adolescents (IMA) - Meningococcal,Tdap,HPV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_IMAHPV | Pediatric | HEDIS MY2020 Immunization for Adolescents (IMA) - HPV - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_IMAMEN | Pediatric | HEDIS MY2020 Immunization for Adolescents (IMA) - Meningococcal - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_IMATD | Pediatric | HEDIS MY2020 Immunization for Adolescents (IMA) - Tdap - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_LSC | Prevention and Screening | HEDIS MY2020 Lead Screening in Children (LSC) - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_NCS | Prevention and Screening | HEDIS MY2020 Non-Recommended Cervical Cancer Screening in Adolescent Females - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_NQF0033-1 | Prevention and Screening | HEDIS MY2020 Chlamydia Screening in Women Ages 16-20 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_NQF0033-2 | Prevention and Screening | HEDIS MY2020 Chlamydia Screening in Women Ages 21-24 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_SPC | Cardiac | Statin Therapy for patients with Cardiovascular disease - Received Statin Therapy |
| MY2020_SPD | Diabetes | HEDIS MY 2020 Statin Therapy for Patients With Diabetes - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_SPR | Respiratory | HEDIS MY2020 Use of Spirometry Testing in the Assessment and Diagnosis of COPD - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_W15 | Pediatric | HEDIS MY2020 Well-Child Visits in the First 15 Months of Life - Six or more Well-Child visit - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_W30 | Pediatric | HEDIS MY2020 Well-Child Visits in 15-30 Months of Life - Two or more Well-Child visit - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_WCV1 | Pediatric | HEDIS MY2020 Child and Adolescent Well Visits 3-11 years - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_WCV2 | Pediatric | HEDIS MY2020 Child and Adolescent Well Visits 12-17 years - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_WCV3 | Pediatric | HEDIS MY2020 Child and Adolescent Well Visits 18-21 years - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2020_WCV4 | Pediatric | HEDIS MY2020 Child and Adolescent Well Visits 3-21 years - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| NCS | Prevention and Screening | Non-Recommended Cervical Cancer Screening in Adolescent Females |
| NQF0018 | Prevention and Screening | Controlling High Blood Pressure : Ages 18-59 |
| NQF0018-1 | Prevention and Screening | Controlling High Blood Pressure : Ages 60-85 without Diabetes |
| NQF0018-2 | Prevention and Screening | Controlling High Blood Pressure : Ages 60-85 with Diabetes |
| NQF0024-1 | Prevention and Screening | Weight Assessment, Nutritional and Activity Counseling for Adolescents (3-16) |
| NQF0024-2 | Prevention and Screening | Weight Assessment, Nutritional and Activity Counseling for Adolescents (16-17) |
| NQF0028-1 | Prevention and Screening | Tobacco Status: Assessment |
| NQF0028-2 | Prevention and Screening | Tobacco Status: Cessation Intervention |
| NQF0033-1 | Prevention and Screening | Chlamydia Screening: Ages 16-20 |
| NQF0033-2 | Prevention and Screening | Chlamydia Screening: Ages 21-24 |
| NQF0036 | Respiratory | Use of Appropriate Medications for People with Asthma |
| NQF0038-1 | Pediatric | Childhood Immunization Status: Rotavirus |
| NQF0038-10 | Pediatric | Childhood Immunization Status: Pneumococcal |
| NQF0038-11 | Pediatric | Childhood Immunization Status: VZV |
| NQF0038-12 | Pediatric | Childhood Immunization Status: Combination 2 (DTaP, IPV, MMR, HiB, HepB, VZV) |
| NQF0038-13 | Pediatric | Childhood Immunization Status: Combination 3 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV) |
| NQF0038-14 | Pediatric | Childhood Immunization Status: Combination 4 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, HepA) |
| NQF0038-15 | Pediatric | Childhood Immunization Status: Combination 5 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, RV) |
| NQF0038-16 | Pediatric | Childhood Immunization Status: Combination 6 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, Influenza) |
| NQF0038-17 | Pediatric | Childhood Immunization Status: Combination 7 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, HepA, RV) |
| NQF0038-18 | Pediatric | Childhood Immunization Status: Combination 8 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, HepA, Influenza) |
| NQF0038-19 | Pediatric | Childhood Immunization Status: Combination 9 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, RV, Influenza) |
| NQF0038-2 | Pediatric | Childhood Immunization Status: DTap |
| NQF0038-20 | Pediatric | Childhood Immunization Status: Combination 10 (DTaP, IPV, MMR, HiB, HepB, VZV, PCV, HepA, RV, Influenza) |
| NQF0038-3 | Pediatric | Childhood Immunization Status: Hep A |
| NQF0038-4 | Pediatric | Childhood Immunization Status: Hep B |
| NQF0038-5 | Pediatric | Childhood Immunization Status: HiB |
| NQF0038-6 | Pediatric | Childhood Immunization Status: Influenza |
| NQF0038-7 | Pediatric | Childhood Immunization Status: IPV |
| NQF0038-8 | Pediatric | Childhood Immunization Status: MMR |
| NQF0038-9 | Pediatric | Childhood Immunization Status: PCV |
| NQF0041-1 | Prevention and Screening | Influenza Immunization: Current Flu Season (October 1 Current year - March 31 Next year) |
| NQF0041-2 | Prevention and Screening | Influenza Immunization: Prior Flu Season (October 1 Prior year - March 31 Current year) |
| NQF0053 | Musculoskeletal | Osteoporosis Management in Women who had a Fracture |
| NQF0054 | Musculoskeletal | DMARD Therapy for Rheumatoid Arthritis |
| NQF0055 | Diabetes | Diabetes: Eye Exam |
| NQF0056 | Diabetes | Diabetes: Foot Exam |
| NQF0057 | Diabetes | Diabetes: A1c Screening |
| NQF0058 | Respiratory | Avoidance of Antibiotic Treatment for Adults with Acute Bronchitis (Inverse measure) |
| NQF0059 | Diabetes | Diabetes: HbA1c Poor Control (HbA1c Greater than 9.0) |
| NQF0060 | Diabetes | HbA1c Testing for Pediatric Patients |
| NQF0061 | Diabetes | Diabetes: BP Control (less than 140/90) |
| NQF0062 | Diabetes | Diabetes: Nephropathy Screening |
| NQF0063 | Diabetes | Diabetes: LDL Screening |
| NQF0064 | Diabetes | Diabetes: LDL Control |
| NQF0066 | Diabetes | CAD: ACE/ARB Therapy for Patients with Diabetes or LVEF less than 40% |
| NQF0067 | Cardiac | Coronary Artery Disease (CAD): Oral Antiplatelet Therapy Prescribed for Patients with CAD |
| NQF0068 | Cardiac | IVD: Daily Aspirin Use |
| NQF0070 | Cardiac | CAD: Beta-Blocker Therapy for AMI or LVSD |
| NQF0081 | Cardiac | HF: ACE ARB Therapy for LVSD |
| NQF0101 | Prevention and Screening | Falls: Screening for Future Fall Risk- Adjusted, Uncertified, Unaudited HEDIS Rate |
| NQF0105-1 | Behavioral | Anti-Depressant Medication Management: Acute Phase |
| NQF0108-1 | Behavioral | Follow-Up Care for Children Prescribed ADHD Medication: Initiation Phase |
| NQF0418 | Prevention and Screening | Depression Screening and Follow-up documented |
| NQF0421 | Prevention and Screening | Body Mass Index (BMI) Screening and Follow-Up |
| NQF0421-1 | Prevention and Screening | Body Mass Index (BMI) Screening |
| NQF0421-2 | Prevention and Screening | Body Mass Index (BMI) Follow-up documented |
| NQF0575 | Diabetes | Diabetes: A1c Control (less than 8.0) |
| NQF0575-1 | Diabetes | Diabetes:A1C Tests (Less than 9.0) |
| NQF1407 | Pediatric | Immunizations for Adolescents: Meningococcal |
| NQF1690 | Prevention and Screening | Adult BMI Assessment |
| NQF1959 | Prevention and Screening | Human Papillomavirus Vaccine for Female Adolescents |
| NQF2468 | Diabetes | Diabetes: Adherence to Oral Diabetes Agents for Individuals |
| PNU | Prevention and Screening | Pneumonia Vaccination for Patients 65 Years and Older- Adjusted, Uncertified, Unaudited HEDIS Rate |
| SPC | Cardiac | Statin Therapy for patients with Cardiovascular disease - Received Statin Therapy |
| SPD | Diabetes | Statin Therapy for patients with Diabetes - Received Statin Therapy |
| SPR | Respiratory | Use of Spirometry Testing in Assessment and Diagnosis of COPD |
| URI | Respiratory | Appropriate Treatment for Children with Upper Respiratory Infection (URI) (Inverse Measure) |
| W15 | Pediatric | Well Child: First 15 months - Atleast one Well-Child visit |
| W15-0 | Pediatric | Well Child: First 15 months - No Well-Child visit |
| W15-1 | Pediatric | Well Child: First 15 months - One Well-Child visit |
| W15-2 | Pediatric | Well Child: First 15 months - Two Well-Child visits |
| W15-3 | Pediatric | Well Child: First 15 months - Three Well-Child visits |
| W15-4 | Pediatric | Well Child: First 15 months - Four Well-Child visits |
| W15-5 | Pediatric | Well Child: First 15 months - Five Well-Child visits |
| W15-6 | Pediatric | Well Child: First 15 months - Six or more Well-Child visits |
| W34 | Pediatric | Well-Child Visits in the Third, Fourth, Fifth and Sixth Years of Life |
| W34-3 | Pediatric | Well Child Visits in the Third year of Life |
| W34-4 | Pediatric | Well Child Visits in the Fourth year of Life |
| W34-5 | Pediatric | Well Child Visits in the Fifth year of Life |
| W34-6 | Pediatric | Well Child Visits in the Sixth year of Life |
| MY2021_0038-1 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Rotavirus - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-10 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Pneumococcal - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-11 | Pediatric | HEDIS MY2021 Childhood Immunization Status: VZV - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-12 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 2 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-13 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 3 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-14 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 4 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-15 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 5 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-16 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 6 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-17 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 7 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-18 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 8 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-19 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 9 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-2 | Pediatric | HEDIS MY2021 Childhood Immunization Status: DTap - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-20 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Combination 10 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-3 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Hep A - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-4 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Hep B - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-5 | Pediatric | HEDIS MY2021 Childhood Immunization Status: HiB - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-6 | Pediatric | HEDIS MY2021 Childhood Immunization Status: Influenza - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-7 | Pediatric | HEDIS MY2021 Childhood Immunization Status: IPV - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-8 | Pediatric | HEDIS MY2021 Childhood Immunization Status: MMR - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_0038-9 | Pediatric | HEDIS MY2021 Childhood Immunization Status: PCV - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_AAP-01 | Access/Availability of Care | HEDIS MY2021 Adults Access to Preventive Services(AAP) Age: 20-44 Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_AAP-02 | Access/Availability of Care | HEDIS MY2021 Adults Access to Preventive Services(AAP) Age: 45-64 Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_AAP-03 | Access/Availability of Care | HEDIS MY2021 Adults Access to Preventive Services(AAP) Age: 65 & over Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_AAP-M-01 | Access/Availability of Care | HEDIS MY2021 Adult Access to Preventive Services (AAP) Age: 20-44 Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_AAP-M-02 | Access/Availability of Care | HEDIS MY2021 Adult Access to Preventive Services (AAP) Age: 45-64 Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_AAP-M-03 | Access/Availability of Care | HEDIS MY2021 Adult Access to Preventive Services(AAP) Age: 65 & over Non Commercial : Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_ADV | Prevention and Screening | HEDIS MY2021 Annual Dental Visit - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_IMACMB1 | Pediatric | HEDIS MY2021 Immunization for Adolescents (IMA) - Meningococcal and Tdap - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_IMACMB2 | Pediatric | HEDIS MY2021 Immunization for Adolescents (IMA) - Meningococcal,Tdap,HPV - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_IMAHPV | Pediatric | HEDIS MY2021 Immunization for Adolescents (IMA) - HPV - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_IMAMEN | Pediatric | HEDIS MY2021 Immunization for Adolescents (IMA) - Meningococcal - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_IMATD | Pediatric | HEDIS MY2021 Immunization for Adolescents (IMA) - Tdap - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_LSC | Pediatric | HEDIS MY2021 Lead Screening in Children (LSC) - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NCS | Prevention and Screening | HEDIS MY2021 Non-Recommended Cervical Cancer Screening in Adolescent Females - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0033-1 | Prevention and Screening | HEDIS MY2021 Chlamydia Screening in Women Ages 16-20 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0033-2 | Prevention and Screening | HEDIS MY2021 Chlamydia Screening in Women Ages 21-24 - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_SPC | Cardiac | HEDIS MY20201 Statin Therapy for patients with Cardiovascular disease - Received Statin Therapy |
| MY2021_SPD | Diabetes | HEDIS MY 2021 Statin Therapy for Patients With Diabetes - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_SPR | Respiratory | HEDIS MY2021 Use of Spirometry Testing in the Assessment and Diagnosis of COPD - Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_W15 | Pediatric | HEDIS MY2021 Well-Child Visits in the First 15 Months of Life - Six or more Well-Child visit - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_W30 | Pediatric | HEDIS MY2021 Well-Child Visits in 15-30 Months of Life - Two or more Well-Child visit - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_WCV1 | Pediatric | HEDIS MY2021 Child and Adolescent Well Visits 3-11 years - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_WCV2 | Pediatric | HEDIS MY2021 Child and Adolescent Well Visits 12-17 years - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_WCV3 | Pediatric | HEDIS MY2021 Child and Adolescent Well Visits 18-21 years - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_WCV4 | Pediatric | HEDIS MY2021 Child and Adolescent Well Visits 3-21 years - 2021 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_COA-1 | Prevention and Screening | HEDIS MY2021 Care for Older Adults: Advance Care Planning- Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_COA-2 | Prevention and Screening | HEDIS MY2021 Care for Older Adults: Functional Status Assessment- Adjusted, Certified, Unaudited HEDIS Rate |
| M2021_COA-3 | Prevention and Screening | HEDIS MY2021 Care for Older Adults: Medication Review- Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_COA-4 | Prevention and Screening | HEDIS MY2021 Care for Older Adults: Pain Assessment- Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_KED | Diabetes | HEDIS MY2021 Kidney Health Evaluation for Patients with Diabetes- Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0055 | Diabetes | HEDIS MY2021 Comprehensive Diabetes Care: Eye Exam - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0057 | Diabetes | HEDIS MY2021 Comprehensive Diabetes Care: A1C Testing - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0059 | Diabetes | HEDIS MY2021 Comprehensive Diabetes Care: HbA1c Poor Control (HbA1c Greater than 9.0) - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0061 | Diabetes | HEDIS MY2021 Comprehensive Diabetes Care: BP Control (less than 140/90) : 2020 Adjusted, Certified, Unaudited HEDIS Rate |
| MY2021_NQF0062 | Diabetes | HEDIS MY2021 Comprehensive Diabetes Care: Nephropathy Screening - 2020 Adjusted, Certified, Unaudited HEDIS Rate |
Exhibit B END USER AGREEMENT (EULA) PROVIDED TO DIRECT CUSTOMERS BY LICENSEE, TO LICENSED USERS BY RESALE CUSTOMERS, TO AUTHORIZED USERS BY DIRECT CUSTOMERS, AND TO PARTICIPANTS BY LICENSED USERS, AS APPLICABLE AND APPROPRIATELY MODIFIED
eClinicalWorks’s (“Vendor”) EMR (“Product”) being provided to [Customer] (“Customer” or “you”) contains Healthcare Effectiveness Data and Information Set (HEDIS®) measures and specifications and survey specifications for the Consumer Assessment of Healthcare Providers and Systems (CAHPS®) (the “Data”). The Data is owned and copyrighted by the National Committee for Quality Assurance (“NCQA”) and has been licensed to Vendor for inclusion in the Product. The HEDIS measures and specifications expressly exclude third-party intellectual property rights in the HEDIS Value Set Directory (“HEDIS VSD”), including without limitation code values owned, licensed or otherwise provided by third parties (“Third-Party Codes”). Please read this End-User License Agreement ("EULA"), which is a binding agreement between you and NCQA, carefully before downloading or using the Data within the Product.
TO THE EXTENT YOU PERMIT ACCESS TO THE DATA THROUGH THE PRODUCT TO A THIRD PARTY, WHETHER AFFILIATED OR UNAFFILIATED, EACH AN “AUTHORIZED USER,” EXCEPT FOR THIS PARAGRAPH, YOU AGREE TO FLOW DOWN THE TERMS OF THIS EULA TO SUCH THIRD PARTY PRIOR TO PERMITTING ACCESS TO THE DATA. YOU SHALL BE RESPONSIBLE FOR THE ACTS AND OMMISSIONS OF YOUR AUTHORIZED USERS.
BY DOWNLOADING OR USING THE DATA WITHIN THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD OR USE THE DATA.
1. License Grant. Subject to the terms and conditions of this EULA, NCQA grants you a limited, perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Data or any portion thereof for the following non-commercial purposes: competitor analysis; benchmark analysis; trended data analysis; quality improvement initiatives; data analysis; cost analysis; analysis of performance from year to year; profiling performance goals and surveillance; population health initiatives; and/or market research.
2. License Restrictions. You shall:
- (i) use the Data only for population health purposes within an affiliated health plan network (e.g. Accountable Care Organization) and internal, quality improvement purposes (e.g., trend analysis) and not publicly display, disseminate or publish the Data, Adjustments (defined below) thereof or any portion of the same;
- (ii) prominently display NCQA’s trademark and copyright notices, including the measure Adjustment and certification notices, as applicable, as provided in this EULA on any output that includes the Data or any portion thereof;
- (iii) only Adjust the Data, or any portion thereof, as explicitly permitted by the Rules for Allowable Adjustments of HEDIS (the “Rules”), except that you may apply or adapt the Data to your non-U.S. jurisdiction (including without limitation translations; mapping, combining or cross-referencing Data with local third-party code values);
- (iv) report or submit HEDIS measure results (“Rates”) to external programs only if those Rates have been calculated by a HEDIS-certified vendor (“HEDIS Certified Vendor”) and stem from Rates that have been audited and approved by an NCQA-certified HEDIS Compliance Auditor (“HEDIS Compliance Auditor”), or as expressly approved in writing by NCQA in advance;
- (v) not use the Data or any portion thereof for any purpose other than as specifically set forth in this EULA;
- (vi) not use the Third-Party Codes without an authorized license from the copyright owners;
- (vii) only publicly display Rates or conduct pay for performance incentive initiatives from/on Certified, Uncertifiable or Retired Measures;
- (viii) not use, or authorize or permit any third party, affiliate, subsidiary or related entity to use the Data or any portion thereof for any purpose other than as specifically set forth in this EULA, including but not limited to copying, selling, renting, leasing, licensing, sublicensing, or distributing the Data or any portion thereof;
- (ix) not reproduce, copy, reverse engineer, decompile or disassemble the Data or modify or prepare derivative works from the Data or any portion thereof except as expressly authorized by this EULA;
- (x) not alter or remove any copyright notices, patent notices, trademark and service mark notices, or other proprietary notices or disclaimers affixed to the Data;
- (xi) not use the Data 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; and
- (xii) not use the Data for purposes of: (a) benchmarking or competitive analysis of the Data or (b) developing a product or service that could reasonably be determined as a replacing the Data. NCQA agrees that the foregoing provision does not restrict or prevent you in any manner from offering or developing a product or service that includes (i) measures, risk models or other specification independently developed by you, or (ii) measures, risk models or other specifications from a third party that may be or are competitive to any NCQA product or offering.
3.HEDIS VSD. The HEDIS VSD contains Third Party Codes, including without limitation CPT® by American Medical Association, LOINC® by Regenstrief Institute, Inc., SNOMED CT® by the International Health Terminology Standards Development Organisation, RxNorm by the U.S. National Library of Medicine, and Uniform Billing Codes by the American Hospital Association. All uses of the Third-Party Codes may require a license from the copyright owner.
4.Ownership, Copyright and Disclosure.
- a. Except for the Third-Party Codes, title to and full ownership of Data and all intellectual property rights therein (including, but not limited to, all copyrights, patent rights and trade secret rights) belong to NCQA, or NCQA has obtained the necessary rights in the Data to grant the rights and licenses set forth herein. This EULA provides only a limited license to use the Data and transfers no ownership or intellectual property interest or title in or to the Data. NCQA’s name and logo, and all other names, logos, trademarks and icons identifying NCQA and its programs, products and services are proprietary trademarks of NCQA and any use not expressly provided for in this EULA is strictly prohibited. NCQA holds a copyright in these materials and can rescind or alter these materials at any time. These materials may not be modified by anyone other than NCQA or its designee. Use of the Rules to make permitted adjustment of the materials does not constitute a modification.
- b. As between NCQA and you, sole ownership rights to the Data and Adjustments reside with NCQA. “Adjust” or “Adjustments” as used in this EULA means all customizations, modifications, enhancements or other improvements developed by, on behalf of or implemented by you as permitted herein. You hereby irrevocably waive any and all claims you may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Data and Adjustments. NCQA’s name and logo, and all other names, logos, icons, trademarks, and/or service marks identifying NCQA and its programs, products and services are proprietary trademarks of NCQA and any use not expressly provided for in this EULA is strictly prohibited.
5.Breach. Any material breach of this EULA by you may cause irreparable harm to NCQA and shall entitle NCQA to seek injunctive relief and all legal and equitable remedies available to NCQA.
6.Disclaimers.
- a. THE HEDIS MEASURES AND SPECIFICATIONS WERE DEVELOPED BY AND ARE OWNED BY NCQA. THE HEDIS MEASURES AND SPECIFICATIONS ARE NOT CLINICAL GUIDELINES AND DO NOT ESTABLISH A STANDARD OF MEDICAL CARE.
- b. NCQA MAKES NO REPRESENTATIONS, WARRANTIES OR ENDORSEMENT ABOUT THE QUALITY OF ANY ORGANIZATION OR PHYSICIAN THAT USES OR REPORTS PERFORMANCE MEASURES AND NCQA HAS NO LIABILITY TO ANYONE WHO RELIES ON SUCH MEASURES OR SPECIFICATIONS.
- c. NCQA MAKES NO WARRANTY TO YOU, EXPRESS OR IMPLIED, WITH RESPECT TO INFORMATION OR MATERIALS DELIVERED PURSUANT TO THIS EULA, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ANY WARRANTY THAT THE DATA WILL BE FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS OR OTHER RIGHTS OF THIRD PARTIES AND ANY WARRANTY AS TO THE ACCURACY QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE DATA.
- d. NCQA DOES NOT CERTIFY EVERY PERMUTATION OF THE RULES FOR ALLOWABLE ADJUSTMENT OF HEDIS FOR A MEASURE. AS SUCH, NCQA SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY MEASURE ADJUSTMENT PERFORMED BY THE VENDOR OR YOU. SUCH MEASURE ADJUSTMENTS ARE AT YOUR OWN RISK.
- e. NCQA DISCLAIMS ALL LIABILITY FOR USE OR ACCURACY OF ANY THIRD-PARTY CODES.
- f. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
7. Indemnity.You are responsible for your use of the Data, and you will defend and indemnify NCQA and their respective officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Indemnified Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Data; (b) your violation of any portion of this EULA, any representation, warranty, or agreement referenced in this EULA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. NCQA reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
8. Limitation of Liability. NCQA SHALL HAVE NO LIABILITY TO YOU FOR: (1) ANY DAMAGES RESULTING FROM USE OR INTERPRETATION OF THE DATA, INCLUDING BUT NOT LIMITED TO THE IMPACT, PROVISION OR STANDARD OF MEDICAL CARE; OR (2) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE OR OTHER INDIRECT DAMAGES ARISING UNDER OR RELATED TO THIS EULA, IN EACH CASE WHETHER OR NOT NCQA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIABILITY OF NCQA SHALL OTHERWISE BE LIMITED TO ACTUAL AND DIRECT DAMAGES, NOT TO EXCEED $10,000.
THE LIABILITY OF THE CUSTOMER TO NCQA ARISING UNDER THIS EULA WHETHER IN CONTRACT, TORT, OR OTHERWISE SHALL BE LIMITED TO ACTUAL AND DIRECT DAMAGES. THE CUSTOMER SHALL HAVE NO LIABILITY FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING UNDER OR RELATED TO THIS EULA, WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. NCQA’s Notice of Copyright.
- a.NCQA holds a copyright in the Data and can rescind or alter the Data at any time. The Data may not be modified by anyone other than NCQA.
- b.Any commercial use and/or internal or external reproduction, distribution and publication must be approved by NCQA and are subject to a license at the discretion of NCQA. Any use of the materials to identify records or calculate measure results, for example, requires a custom license and may necessitate certification pursuant to NCQA’s Measure Certification Program. Reprinted with permission by NCQA. © [current year] NCQA, all rights reserved.
- c.The American Medical Association (“AMA”) holds a copyright to the CPT® codes contained in the measure specifications. All rights reserved. CPT is a trademark of the AMA. No fee schedules, basic units, relative values or related listings are included in CPT. The AMA assumes no liability for the data contained in the CPT codes. Applicable FARS/DFARS restrictions apply to government use.
- d.The AMA also hold copyright to the Health Care Provider Taxonomy Code Set codes. The codes are published in cooperation with the National Uniform Claim Committee (“NUCC”) by the AMA. Applicable FARS/DFARS restrictions apply.
- e.The American Hospital Association holds a copyright to the Uniform Billing Codes (“UB”) contained in the measure specifications. The UB Codes in the HEDIS specifications are included with the permission of the AHA. The UB Codes contained in the HEDIS specifications may be used by health plans and other health care delivery organizations for the purpose of calculating and reporting HEDIS measure results or using HEDIS measure results for their internal quality improvement purposes. All other uses of the UB Codes require a license from the AHA. Anyone desiring to use the UB Codes in a commercial product to generate HEDIS results, or for any other commercial use, must obtain a commercial use license directly from the AHA. To inquire about licensing, contact ub04@aha.org.
- f.The American Dental Association (“ADA”) holds a copyright to the Current Dental Terminology (“CDT”) codes contained in certain measure specifications. The CDT codes in the HEDIS specifications are included with the permission of the ADA. All uses of the CDT codes require a license from the ADA. No alteration, amendments, or modifications of the CDT or any portion thereof is allowed. Resale, transmission, or distribution of copies of the CDT or other portions of the CDT is also not allowed. To inquire about licensing, contact CDT-SNODENT@ada.org.
10. Display of Measure Rates. Except for output used solely for internal, quality improvement purposes (e.g., trend or gap analysis), you agree to clearly and conspicuously display, along with the HEDIS measure name or acronym, the applicable HEDIS measurement year and complete calculated HEDIS measure result (“Rate”) name (e.g., HEDIS MY 2020 Use of Imaging Studies for Low Back Pain - Unaudited Health Plan HEDIS Rate (or) HEDIS MY 2020 LBP - Unaudited Health Plan HEDIS Rate) next to any Rate on all output containing a Rate, including such Rates that may be used for population health purposes within an affiliated health plan network, in accordance with the following:
- a. Unadjusted Certified Measures. A Rate that has been certified via a NCQA Measure Certification ProgramTM, and is based on unadjusted HEDIS specifications, may not be called a “Health Plan HEDIS Rate” until it is audited and designated reportable by a HEDIS Compliance Auditor. Until such time, applicable Rates shall be designated or referred to as “Unaudited Health Plan HEDIS Rates.”
- b. Adjusted Certified Measures. A Rate that has been certified via a NCQA Measure Certification Program, and is based on adjusted HEDIS specifications, may not be called an “Adjusted HEDIS Rate” until it is audited and designated reportable by a HEDIS Compliance Auditor. Until such time, applicable Rates shall be designated or referred to as “Adjusted, Unaudited HEDIS Rates.”
- c. Unadjusted Uncertified Measures. At times, the logic used to produce Rates from the Product will not have been certified by NCQA. A Rate that has not been certified via a NCQA Measure Certification Program, and is based on unadjusted HEDIS specifications, may not be called a “Health Plan HEDIS Rate” until it is audited and designated reportable by a HEDIS Compliance Auditor. Such Rates are for reference only and are not an indication of measure accuracy. Until such time, such Rates shall be designated or referred to as “Uncertified, Unaudited Health Plan HEDIS Rates” and may only be used for population health purposes within an affiliated health plan network and internal, quality improvement purposes (e.g., trend analysis).
- d. Adjusted Uncertified Measures. At times, the logic used to produce Rates from the Product will not have been certified by NCQA. A Rate from a HEDIS measure that has not been certified via a NCQA Measure Certification Program, and is based on adjusted HEDIS specifications, may not be called an “Adjusted HEDIS Rate” until it is audited and designated reportable by a HEDIS Compliance Auditor. Such Rates are for reference only and are not an indication of measure accuracy. Until such time, such Rates shall be designated or referred to as “Adjusted, Uncertified, Unaudited HEDIS Rates” and may only be used for population health management purposes within an affiliated health plan network and internal, quality improvement purposes (e.g., trend analysis).
- e. Uncertifiable Measures. Not all HEDIS measure specifications are eligible for NCQA certification. As such, the logic used to produce Rates from those measures have not been certified by NCQA. As such, they shall be designated or referred to as “Uncertifiable, Unaudited Health Plan HEDIS Rates” or “Adjusted, Uncertifiable, Unaudited HEDIS Rates,” as applicable. A list of current HEDIS measure specifications ineligible for certification can be found on NCQA’s website via ncqa.org. Once audited and designated reportable by an NCQA-Certified HEDIS Compliance Auditor, the “Unaudited” designation may be removed.
- f.For the sake of clarity, for each of Section 10 a.-e. above, once the measure rate is audited and designated reportable by an NCQA-Certified HEDIS Compliance Auditor, the “Unaudited” designation may be removed.
11. Termination. If you violate any provision of this EULA, your permission to use the Data may be terminated, upon notice. NCQA reserves the right to modify or discontinue the Data at any time (including by limiting or discontinuing certain features of the Data), temporarily or permanently, without notice to you. Termination of this EULA shall not impair your right to continue to use the Data contained in the Product or Rates contained in reports generated from the Product prior to the termination of this EULA; provided such use is consistent with the limitations and restrictions set forth in this EULA.
12. Disputes.
a.Governing Law. This EULA will be governed by the laws of the District of Columbia without giving effect to District of Columbia choice-of-law principles. To the maximum extent permitted under applicable law, this EULA will not be subject to the Uniform Computer Information Transactions Act (prepared by the National Conference of Commissioners on Uniform State Laws) as currently enacted or as may be codified or amended from time to time by any jurisdiction. PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (“U.N. CONVENTION”), THE PARTIES AGREE THAT THE U.N. CONVENTION SHALL NOT APPLY TO THIS EULA. For the sake of clarity, you agree to comply with all applicable U.S. and non-U.S. laws, including but not limited to export control laws and regulations and agree to the enforceability of these laws in the U.S. U.S. intellectual property and contract laws, including U.S. copyright laws, shall be the governing law with respect to all intellectual property and other proprietary rights in the Data and Adjustments and otherwise arising out of or relating to this EULA.
b.Dispute Resolution – Entities Incorporated in the United States. Any dispute arising out of or in connection with this EULA, the rights and obligations under this EULA or the breach, termination, formation or validity of this EULA (a “Dispute”) that cannot be resolved within thirty (30) days shall be referred to and settled by arbitration. The arbitration shall be conducted in accordance with the Arbitration Rules of the American Arbitration Association (the “AAA”) in effect at the time of the arbitration, except as such rules may be modified by mutual agreement of the parties. The applicable rules shall be the Commercial Rules in the event of a domestic dispute and the International Rules in the event of an international dispute, and any disagreement as to the applicable rules shall be resolved by the arbitrator appointed as described below. The seat of the arbitration shall be Washington, DC and the arbitration shall be conducted in English.
Disputes shall be heard by a panel of three (3) arbitrators. Within thirty (30) days after the commencement of arbitration, each of the parties shall select one person to act as an arbitrator and the two (2) selected shall select, in consultation with the parties that appointed them, a third arbitrator who shall serve as the president of the tribunal within forty five (45) days of their appointment. If the arbitrators selected by each party are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA.
The award of the arbitrators shall be accompanied by a reasoned, written opinion. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Each party shall continue to perform its obligations under this EULA pending final resolution of any dispute resolution procedure; provided that, nothing in this Section shall be construed as forfeiting the parties’ rights to seek interim relief in a court of competent jurisdiction, and such actions shall not be incompatible with this EULA to arbitrate contained herein or the availability of interim measures of protection under the Arbitration Rules.
The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including but not limited to any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the tribunal, the AAA, the parties, their counsel and any person necessary for the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise.
The terms of this EULA requiring arbitration are self-executing, and it is unnecessary for either party to petition a court to compel arbitration in order to initiate arbitration. The parties agree that any issue regarding the arbitrability of any claims or disputes arising under, relating to or in connection with this EULA is an issue solely for the arbitrators, not a court, to decide.
THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY OR OTHERWISE ON ANY CLAIM, CAUSE OF ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY INVOLVING OR RELATED TO THE TERMS, COVENANTS OR CONDITIONS OF THIS EULA OR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATED TO THIS EULA. THE PROVISIONS OF THIS EULA RELATING TO WAIVER OF TRIAL BY JURY SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS EULA.
c. Dispute Resolution – Entities Incorporated Outside the United States.Any dispute arising out of or in connection with the use of the Licensed Measure Specifications under the Agreement, the rights and obligations under the Agreement or the breach, termination, formation or validity of the Agreement (a “Dispute”) that cannot be resolved within thirty (30) days shall be referred to and settled by arbitration administered by the International Centre of Dispute Resolution (the “ICDR”) in accordance with its International Arbitration Rules (the “Arbitration Rules”) in effect as of the Effective Date. Disputes shall be heard by a panel of three (3) arbitrators. Within thirty (30) days after the commencement of arbitration, each of the Parties shall select one person to act as arbitrator and the two (2) selected shall select, in consultation with the Parties that appointed them, a third arbitrator who shall serve as the president of the tribunal within forty-five (45) days of their appointment. If the arbitrators selected by each Party are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the ICDR in accordance with the Arbitration Rules. The legal seat of arbitration shall be Washington, District of Columbia USA, provided that the tribunal may, for convenience, and without affecting the legal seat of the arbitration, order that hearings or meetings be held in such other location(s) as it may deem appropriate. The language of the arbitration shall be English. The award of the arbitrators shall be accompanied by a reasoned, written opinion. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Each Party shall continue to perform its obligations under this Agreement pending final resolution of any dispute resolution procedure; provided that, nothing in this Section shall be construed as forfeiting the Parties’ rights to seek interim relief in a court of competent jurisdiction, and such actions shall not be incompatible with the agreement to arbitrate contained herein or the availability of interim measures of protection under the Arbitration Rules.
The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including but not limited to any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the ICDR, the parties, their counsel and any person necessary for the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise.
The terms of this EULA requiring arbitration are self-executing, and it is unnecessary for either party to petition a court to compel arbitration in order to initiate arbitration. The parties agree that any issue regarding the arbitrability of any claims or disputes arising under, relating to or in connection with this EULA is an issue solely for the arbitrators, not a court, to decide.
THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY OR OTHERWISE ON ANY CLAIM, CAUSE OF ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY INVOLVING OR RELATED TO THE TERMS, COVENANTS OR CONDITIONS OF THIS EULA OR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATED TO THIS EULA. THE PROVISIONS OF THIS EULA RELATING TO WAIVER OF TRIAL BY JURY SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS EULA.
d. Vendor Disputes. ANY DISPUTE YOU HAVE WITH VENDOR OR A THIRD PARTY IS DIRECTLY BETWEEN YOU AND VENDOR, AND YOU IRREVOCABLY RELEASE NCQA (AND ITS OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
e. No Class Action. EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
13.Export Control Laws.You shall abide by the Export Administration Regulations (15 C.F.R. Part 730 et seq.); and (b) the sanctions, embargoes and restrictions administered by the United States Department of the Treasury Office of Foreign Assets Control as set forth in 31 C.F.R. 500-598 and certain executive orders, the European Union, European Union member states, United Nations, World Bank and other relevant government body (“Export Control Laws”) in use of the Data. The Data may be subject to Export Control Laws. You shall not directly or indirectly, export, re-export, or release the Data to, or make the Data accessible from, any country, jurisdiction or person to which export, re-export, or release is prohibited by applicable law. You shall comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Data available outside the U.S.
You represent and warrant you are not a Restricted Party. “Restricted Party” means, collectively, any party that (i) appears on a restricted party list maintained by any relevant government body, including without limitation the Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identification List, Foreign Sanctions Evader List, Denied Persons List, Unverified List, Entity List, and United Nations Security Council Sanctions Lists; (ii) is headquartered in, located in, or organized under the laws of a country or territory subject to comprehensive territorial sanctions, currently, Cuba, Iran, North Korea, Syria, and the Crimea region; or (iii) is owned or controlled by or acting on behalf of any party identified in (i) or (ii) above. You represent and warrant that you or any person acting on your behalf has not taken any action that is reasonably likely to result in it being designated as a Restricted Party.
14. Additional Terms; Modifications.
- a. Additional Terms. Your use of the Data and Rates may be subject to additional terms, policies, rules or guidelines applicable to the Data or Rates that NCQA may post on its website (the “Additional Terms”), subject to the section of this EULA titled “Modification of this EULA.” All Additional Terms are incorporated by this reference into, and made a part of, this EULA. The rights granted under this EULA are limited to the Data and Rates, and nothing herein grants you any rights to the Product.
- b. Modification of this EULA. You acknowledge that the EULA may be modified or replaced on a going-forward basis at any time. Please check NCQA’s website periodically for changes to this EULA. If a change to this EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Data and yet to be calculated Rates. This EULA will be identified by the most recent date of revision and will be effective immediately upon being made available through NCQA’s website or otherwise through the Product, except: (i) if any such modification materially alters your rights under this EULA, an attempt to notify you will be made directly through a message sent by NCQA to the email address you have provided to Vendor, if any, or through a pop-up window or other notification when you access or use the Product; (ii) such materially modified EULA will be effective upon the earlier of your use of the Data or calculated Rates therefrom with actual knowledge of the changes or thirty (30) days after the changes are made available to you; and (iii) no modifications to this EULA will apply to any dispute between you and NCQA that arose prior to the date of such modification. What constitutes a material change will be determined at NCQA’s sole reasonable discretion. Your use of the Data or yet to be calculated Rates after modifications to this EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this EULA or any modifications to this EULA, then you agree that your sole and exclusive remedy is to discontinue any use of the Data, including continued calculation of Rates therefrom.
- c.Changes to the Data. NCQA reserves the right to modify, suspend or discontinue, temporarily or permanently, the Data with or without notice and without liability to you.
15. Feedback.If you provide NCQA with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Data (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and NCQA will have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Data. You hereby grant NCQA a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use for any purpose your Feedback related to the Data. You acknowledge that you will address all support and Product-related requests and issues to the Vendor, and NCQA is not responsible for such requests or issue solving.
16. Miscellaneous.
- a.Entire Agreement. This EULA sets forth the entire understanding of the parties relating to your use of the Data and supersedes all prior agreements and understandings between the parties relating to your use of the Data. This EULA shall control in the event of any conflict between this EULA and any Additional Terms.
- b.Further Assurances. Each party shall, upon the reasonable request of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this EULA.
- c.Severability; Waiver. If any part of any provision of this EULA is found to be invalid or unenforceable, the remainder of this EULA shall remain in full force and effect. No failure to enforce any terms of this EULA shall: (i) be effective unless expressly set forth in writing; (ii) constitute a waiver of such term in the future; or (iii) in any way affect the other terms hereof.
- d.Notice. Any notice required or permitted to be delivered pursuant to this EULA shall be in writing and shall be deemed given upon delivery. All such notices shall be addressed to NCQA at the address set forth below, by email, or to such other address as NCQA shall notify you in accordance with this Section:
AVP, Measure Validation
NCQA
1100 13th Street NW, Third Floor
Washington, DC 20005
Phone: 202-955-3500
- e.Independent Contractor. The relationship among the parties is and will be that of independent contractors. This EULA does not establish or create a partnership, joint venture, or similar relationship among the parties and neither party has authority to contract for or bind the other party in any manner whatsoever.
- f.Assignment. You shall not assign or delegate this EULA or any of your rights or obligations hereunder without the prior written consent of NCQA. Any attempted assignment by you without such consent shall be null and void. NCQA may assign this EULA, or any of its rights under this EULA, to any third party with or without your consent.
- g.Language. The EULA all other communications under or in connection with the EULA shall be in, the English language. Any translation into any other language shall not be an official version thereof, and in the event of any conflict in interpretation between the English version and such translation, the English version shall control.
17. Contact Information. If you have any questions about this EULA, please contact NCQA via my.ncqa.org.
Addendum for IMO® PROBLEM IT TERMINOLOGY
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | Intelligent Medical Objects, Inc. is the company providing this product. Customer hereby agrees to Intelligent Medical Objects’ License Agreement in Exhibit A. |
| Functionality | Customer desires to add connectivity to the Intelligent Medical Objects’ service. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A IMO LICENSE AGREEMENT FOR IMO® PROBLEM IT TERMINOLOGY
The Software (defined hereunder) contains the IMO® Problem IT terminology product (“Service”) from Intelligent Medical Objects, Inc. (“IMO”). The Service and the eClinicalWorks, LLC (“eCW”) software (“Software”) are separate products provided by separate entities. This End User License Agreement (“EULA”) is a binding agreement between IMO and the person or entity identified on the applicable eCW order form/license agreement as the licensee of the Software ("END-USER").
IMO PROVIDES THE SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT END-USER (DEFINED BELOW) ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE ACCEPTANCE BOX AND CLICKING “CONTINUE” ON THE SCREEN YOU (A) ACCEPT THIS EULA AND AGREE THAT END-USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF END-USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF END-USER AND BIND END-USER TO ITS TERMS. IF END-USER DOES NOT AGREE TO THE TERMS OF THIS EULA, IMO WILL NOT AND DOES NOT LICENSE THE SERVICE TO END-USER AND YOU MUST NOT INSTALL OR ACCESS THE SERVICE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR OR END-USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PORTION OF OTHE SERVICE THAT END-USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF IMO’S SERVICE.
1. Grant of License. The license granted herein is a non-exclusive, non-transferable license for END-USER to use the Service solely in conjunction with the Software for internal use: (i) in a production/clinical setting; and (ii) in a non-production/non-clinical setting for backup, archival, support, testing, training and demonstration purposes; provided END-USER complies with the restrictions set forth in Section 2.
2. Restrictions. END-USER shall not cause or permit others to copy, duplicate, redistribute, loan, rent, retransmit, publish, license or sublicense or otherwise transfer, or commercially exploit, the Service, in whole or part. END-USER shall not prepare derivative works or incorporate the Service, in whole or part, in any other system or work; or reverse engineer, decompile, disassemble, decrypt, translate, alter, adapt or modify the Service, in whole or part.
3. Ownership. This EULA provides only a license of rights to use the Service, and does not provide for the sale or other transfer of title. Except for third party content included in the Service, IMO has and shall have exclusive title to and ownership of all of its products, including the Service and of all of its sub-parts and components, and of all updates, modifications, alterations, customizations, derivative works, revisions or enhancements thereof, and of all software, source code, and trade secrets, and proprietary research, equations, screens, techniques, methodology, analysis, programming or know-how thereof. Any ideas or requests for terms submitted by END-USER to eCW or IMO for inclusion in the Service shall be considered part of a derivative work of the Service and shall be owned by IMO with all rights assigned by END-USER to IMO. END-USER shall not be charged for such regular inclusion of added terms. END-USER will have a perpetual, non-exclusive license to use, display or modify these requested terms apart from the Service.
4. Technical Warranty. The Service, as provided by IMO, does not include any disabling devices such as devices that result in the electronic recapture of programming, undocumented functions, passwords, keys, security devices or trap doors, or any computer viruses.
5. Disclaimer of Warranties. EXCEPT FOR WARRANTIES THAT MAY NOT BE DISCLAIMED AS A MATTER OF LAW OR THAT ARE INCLUDED HEREIN, THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND IMO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR NATURE OF THE SERVICE, NONINFRINGEMENT, COMPATIBILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- a. Any warranties expressly provided herein do not apply if: (i) the END-USER alters, mishandles or improperly uses, stores or installs all, or any part, of the Service; (ii) the END-USER uses, stores or installs the Service on a computer system which fails to meet the specifications for the Software; or (iii) the breach of warranty arises out of or in connection with acts or omissions of persons or entities other than IMO.
6. Assumption of Risk. END-USER ACKNOWLEDGES THAT THE SERVICE IS NOT A SUBSTITUTE FOR THE CARE PROVIDED BY LICENSED HEALTH CARE PRACTITIONERS. AS BETWEEN END-USER AND IMO, END-USER HEREBY ASSUMES FULL RESPONSIBILITY FOR: (A) ITS USE OF THE SERVICE; AND (B) INSURING THE APPROPRIATENESS OF USING AND RELYING UPON THE INFORMATION IN VIEW OF ALL ATTENDANT CIRCUMSTANCES, INDICATIONS, AND CONTRAINDICATIONS. NIETHER IMO OR ECW SHALL BE RESPONSIBLE AND HAS NO LIABILITY TO ANY PERSON FOR: (A) ANY ERRORS, MISSTATEMENTS, INACCURACIES OR OMISSIONS REGARDING CONTENT DELIVERED THROUGH THE SERVICE; (B) ANY DELAYS IN OR INTERRUPTIONS OF SUCH DELIVERY; OR (C) ANY DATA OR INFORMATION INPUT INTO THE SERVICE BY THE END-USER. ADDITIONALLY, IMO UNDERTAKES NO OBLIGATION TO SUPPLEMENT OR UPDATE CONTENT OF THE SERVICE.
- a. The Service does not endorse drugs, diagnose patients, or recommend therapy. The Service is an informational resource designed to assist licensed health care practitioners in DOCUMENTING THE carE of their patients. THE INFORMATION CONTAINED WITHIN THE SERVICE IS INTENDED FOR USE ONLY BY PHYSICIANS AND OTHER HEALTH CARE PROFESSIONALS WHO SHOULD RELY ON THEIR CLINICAL DISCRETION AND JUDGMENT IN DIAGNOSIS AND TREATMENT.
- END-USER ACKNOWLEDGES THAT (I) MEDICAL FACT EXTRACTION IS A STATISTICAL PROCESS, (II) INACCURACIES ARE INHERENT IN THIS PROCESS AND THE OUTPUT FROM PRODUCTS AND SERVICES EMPLOYING THIS PROCESS, AND (III) THE SERVICE EMPLOYS THIS PROCESS. END-USER ACKNOWLEDGES AND AGREES THAT IT IS THE SOLE RESPONSIBILITY OF END-USER TO IDENTIFY AND CORRECT ANY INACCURACIES AND ERRORS BEFORE USING AND/OR RELYING ON THE RESULTS OF THE USE OF THE SERVICE PROVIDED UNDER THIS EULA.
7. Disclaimer of Liability. EXCEPT FOR IMO’S OBLIGATONS UNDER SECTION 8(B), in no event shall either IMO or ecw be liable to any person including, but not limited to END-USER and persons treated by or on behalf of END-USER for any CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS EULA OR THE SERVICE. IMO's total liabilities arising out of or related to this EULA are limited to the fees received by IMO from ECW for END-USER’s use of the Service. ECW is not a party to this EULA and has no liability hereunder.
8. Indemnification.
- a. By END-USER. END-USER agrees to indemnify, defend, and hold IMO and eCW harmless from any claims, costs, liabilities, judgments, attorneys’ fees, settlements, penalties or other losses in all causes including, but not limited to losses for tort, personal injury, medical malpractice or product liability arising out of or relating to: (a) END-USER’s use of the Service; (b) any data or information input into the Service by END-USER; (c) END-USER’s negligence or intentional misconduct; and (d) any breach of this EULA by END-USER. In the event that END-USER indemnifies IMO, then: (i) END-USER will retain qualified counsel with demonstrable experience defending claims of the type to be defended, who shall be preapproved by IMO; and (ii) END-USER agrees to let IMO participate in the defense of any action, at IMO’s option and expense.
- b. By IMO. IMO agrees to indemnify, defend, and hold END-USER harmless against third party claims, costs, liabilities, judgments, attorneys’ fees, settlements, and penalties brought against END-USER arising out of, related to, or alleging that the IMO Service infringes on a United States patent, trademark or copyright of a third party (collectively “Indemnified Claim”); provided END-USER promptly, but within thirty (30) days, notifies IMO in writing of such Indemnified Claim. IMO shall have sole control of the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided END-USER will have the right to approve the terms of any settlement or compromise that restricts its rights granted under this Agreement or subjects it to any ongoing obligations. IMO shall have no indemnification obligation to END-USER to the extent that an Indemnified Claim arises out of: (i) END-USER’S violation of this EULA; (ii) information incorporated into the Service by END-USER or eCW; (iii) a modification or addition to the Service made by END-USER or eCW; or (iv) the use of the Service in combination with any program or equipment or any part thereof not furnished or approved by IMO.
9. Intellectual Property Disclaimers; Use of Trademarks. END-USER will not alter, cover or remove any trademark, copyright or other proprietary rights notice placed by IMO or a third party in or on the Service. END-USER will not use or modify any IMO or third party trademarks, trade names, service marks, corporate names or logos or those of its affiliates (collectively “Marks”) or any advertising materials containing any of the foregoing unless it has obtained the prior written approval of IMO, which may be withheld for any reason. Goodwill associated with the Marks inures solely to IMO and the respective third party owners. END-USER acknowledges and agrees that it shall not, directly or indirectly, do anything inconsistent with the validity, ownership, distinctiveness or integrity of the Marks, or the goodwill attaching thereto, nor shall it assist any third party in doing so.
10.END-USER Documentation. END-USER is responsible for generating any user documentation related to the Service that it may require.
11.Security. END-USER shall establish the appropriate firewalls and security systems, such that the Service is accessed only by authorized employees or contractors of END-USER and is not used in a manner that would violate the terms of this EULA.
12.Term and Termination. The term of this EULA begins upon installation of the Software and/or Service and continues for the term specified in END-USER’s Software license agreement. This EULA may be terminated by IMO or eCW at any time if: (i) END-USER violates any provision of this EULA; or (ii) eCW’s relationship with IMO terminates. If this EULA is terminated for any reason, END-USER agrees to immediately return or destroy all copies of the Service and all companying items and certify the return or destruction thereof.
13.Conflicts. If END-USER has a license agreement directly with IMO for use of the Service within END-USER’s instance of the Software (“License Agreement”), then the terms of the License Agreement, and not the terms of this EULA, shall govern.
14.General. END-USER will hold the terms of this EULA confidential. END-USER will ensure that anyone with authorized access to the Service will comply with the provisions of this EULA and Schedule A. If any provision of this EULA is determined to be unenforceable, the rest of this EULA will remain in full force. Headings in this EULA are for convenience only and are not part of this EULA. The delay or failure to assert a right herein or to insist upon compliance with any term or condition of this EULA shall not constitute a waiver of that right or excuse a subsequent failure to perform any term or condition. END-USER may not assign any of the rights herein without prior written approval from IMO. This EULA will be governed by the State of Illinois without regard to choice-of-law principles. The courts of the State of Illinois and/or the United States District Court for the Northern District of Illinois shall have exclusive jurisdiction over any action arising under or related to the subject matter of this EULA and the parties agree to submit to the jurisdiction of the courts of the State of Illinois and the United States District Court for the Northern District of Illinois. This EULA is the entire agreement between END-USER and IMO as to the subject matter. Any amendment must be in writing signed by both END-USER and IMO.
Addendum for Medi-Span Clinical
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | Wolters Kluwer Clinical Drug Information, Inc. is the company providing this product. Customer hereby agrees to terms required by Medi-Span in Exhibit A. |
| Functionality | Customer desires to add connectivity to Medi-Span Clinical. Medi-Span Clinical is an automated clinical screening solution supports clinicians with making better informed medication-related decisions across the continuum of care. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
WOLTERS KLUWER CLINICAL DRUG INFORMATION, INC., LICENSED CONTENT ADDENDUM
1.1 This Wolters Kluwer Clinical Drug Information, Inc., Licensed Content Addendum is an addendum to the agreement between Licensor and Customer.
1.1.1 The following definitions are incorporated into the Addendum:
1.1.2 “Addendum” means this addendum to the agreement between Licensor and Customer.
1.1.3 “Clinician” means an MD, DO, DDS, DDM, OD, Physician’s Assistant (PA), advanced practice nurse, licensed pharmacist, or other properly licensed professional clinician authorized to write or dispense prescriptions.
1.1.4 “Customer” means the party electronically accepting this Addendum.
1.1.5 “Customer Application” means Licensor’s software.
1.1.6 “Customer Authorized User” means a person permitted by Customer to access or use Customer Application, including, without limitation, Clinicians, and who is subject to the terms of this Addendum.
1.1.7 “Licensor” means eClinicalWorks, LLC.
1.1.8 “WKCDI” means Wolters Kluwer Clinical Drug Information, Inc., an Ohio corporation.
1.1.9 “WKCDI Licensed Content” means certain data or software provided to Licensor under separate license from WKCDI and provided by Licensor to Customer through use of Customer Application.
1.2 License Grant.During the term of this Addendum, Licensor grants to Customer a limited, non-exclusive, non-transferable license to access and use certain content from the WKCDI Licensed Content which Licensor has previously and separately licensed from WKCDI and included within Customer Application. Customer and its Customer Authorized Users may use the WKCDI Licensed Content pursuant to a limited and restricted license in conformance with the terms of the license from WKCDI. Customer and its Customer Authorized Users may not provide data from the WKCDI Licensed Content to third-parties for any other purpose. This is not a sale of the WKCDI Licensed Content or of a copy of the WKCDI Licensed Content. Any use or attempted use of the WKCDI Licensed Content other than as expressly permitted herein is a material breach of this Addendum and a material breach of the license granted by WKCDI to Licensor. Only Customer Authorized Users may access and use the WKCDI Licensed Content through Customer Application. The WKCDI Licensed Content was developed for use only in the United States and its territories.
1.3 Customer Authorized Users Compliance.Customer shall take commercially reasonable measures to ensure its Customer Authorized Users compliance with the terms of this Addendum. Customer shall promptly report to Licensor any breach of this Addendum by a Customer Authorized User, but in no event later than five calendar days after becoming aware of a breach.
1.4 License Restrictions.Customer and its Customer Authorized Users shall not: (a) print in whole or in substantial part the WKCDI Licensed Content; (b) modify, translate, reverse engineer, decompile, disassemble, or attempt to derive or alter any source code of the WKCDI Licensed Content or any underlying software; (c) use the WKCDI Licensed Content to provide service bureau, time sharing, or similar services to third parties, including any parent, subsidiary, or other affiliate of Customer unless such use by the parent, subsidiary, or other affiliate is explicitly permitted by Licensor and such parent, subsidiary or other affiliate is bound by the terms of this Addendum; (d) distribute, sublicense, sell, assign, transfer, rent, lease, pledge, or encumber the WKCDI Licensed Content, or make any attempt to do so; (e) alter, remove, obscure, or hinder delivery of any copyright, disclaimer, or proprietary notice appearing in the WKCDI Licensed Content; (f) take any action compromising the enjoyment and use of the WKCDI Licensed Content by any other WKCDI or Licensor customer; or (g) take any action compromising WKCDI’s or Licensor’s rights in or to use of the WKCDI Licensed Content. Redistribution of the WKCDI Licensed Content in whole or substantial part for any purpose is not permitted.
1.5 Compliance with Laws.Customer shall use the WKCDI Licensed Content and the information contained therein and results derived therefrom, in compliance with applicable federal, state, and local laws, rules, and regulations.
1.6 No Competitive ProductsUnder no circumstances shall Customer use the WKCDI Licensed Content or information contained therein or results derived therefrom, to develop a product(s) or service(s) in any format similar to, or which could be competitive with, Customer Application or the WKCDI Licensed Content.
1.7 Customer Modifications.Customer shall not modify, or create a derivative work from, the WKCDI Licensed Content without the explicit, prior written permission of WKCDI and Licensor. Customer assumes all liability for any modification made by Customer, on behalf of Customer, or by a Customer Authorized User. WKCDI and Licensor specifically disclaim all warranties of any nature, express and implied, regarding any Customer-modified or Customer Authorized User-modified WKCDI Licensed Content.
1.8 Product Documentation, Training, Support.In the event that WKCDI provides Licensor with documentation or an alert that has the potential to affect patient safety or clinical practice, Licensor is obligated under its agreement with WKCDI to make such known to Customer. Upon notification of such an alert or documentation, Customer shall promptly provide Customer Authorized Users with access to a hard copy or instructions for obtaining an electronic copy of the alert or documentation as provided by Licensor to Customer. Customer shall have sole responsibility for ensuring that Customer Authorized Users have sufficient training to use the WKCDI Licensed Content in a reasonably competent manner before providing them with access to the WKCDI Licensed Content. WKCDI will not provide support directly to Customer; rather all support regarding Customer Application or the WKCDI Licensed Content will be provided to Customer by Licensor.
1.9 Professional Responsibility.Customer acknowledges and agrees that the professional duty to a patient in the provision of healthcare services (including but not limited to the dispensing of drug prescriptions, provision of drug information, substitution of one drug product for another, availability of generic substitutable alternative drug products, providing instruction, and answering questions a patient may have) lies solely with the healthcare professional providing direct patient care or pharmacy services. Customer acknowledges and agrees that clinical information and screening functions in the WKCDI Licensed Content are intended only as a limited supplement to, and not replacement for, the professional clinical judgment of a healthcare professional. Customer acknowledges and agrees that neither WKCDI nor Licensor provides medical, pharmaceutical, or other professional advice or patient services in connection with this Addendum or as part of or as a result of the provision of the WKCDI Licensed Content and that neither WKCDI nor Licensor has the ability to verify patients’ understanding of their medications and the effects of such medications. Customer acknowledges that content from the WKCDI Licensed Content provided to patients: (a) is not a substitute for verbal medication counseling or physical demonstration of an administration technique by a healthcare professional, (b) may be confusing to certain patients when not interpreted by a healthcare professional, and (c) is designed solely to support the verbal information transfer by healthcare professionals and to serve as a non-comprehensive take home reference source for patients or caregivers. Accordingly, Customer, through its Customer Authorized Users, is required to, and will, independently apply their medical, nursing, pharmaceutical, or other professional knowledge, expertise, and judgment with respect to determining the correctness, completeness, timeliness, and suitability of the content or function of the WKCDI Licensed Content for each patient for whom Customer or a Customer Authorized User provides any services or products and, where applicable and within the discretion of the healthcare professional, provide each patient with appropriate, individualized verbal counseling regarding potential relevant health care conditions and the use of, or potential adverse consequences associated with, a particular drug, drug combination, or course of therapy. Therefore, as between Customer, on the one hand, and WKCDI on the other hand, Customer takes full responsibility for its and Customer Authorized Users use of the content in, and function of, the WKCDI Licensed Content in patient care.
1.10 Effect of Termination.Upon expiration or termination of this Addendum for any reason, the right to use the WKCDI Licensed Content granted hereunder terminates. Customer shall (a) within thirty (30) days cease all use of the WKCDI Licensed Content; (b) take such steps as are necessary to prohibit further use of the WKCDI Licensed Content; and (c) furnish a written description of the steps taken if so requested by WKCDI or Licensor. If so required by law or a regulatory agency, for archival purposes only, Customer may retain data from the WKCDI Licensed Content if the data was derived in accordance with this Addendum. Data from the WKCDI Licensed Content that has been included in a patient’s electronic health record prior to termination may be retained in that electronic health record after termination.
1.11 Title.Customer agrees that all right, title, and interest in and to the WKCDI Licensed Content and all information therein, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of WKCDI. To the extent that Customer inadvertently or otherwise acquires any rights to the WKCDI Licensed Content or any portion thereof in a manner not set forth herein, Customer agrees to execute, and to cause its representatives to execute, any assignment agreements or other instruments assigning, transferring, and conveying to WKCDI all right, title, and interest in and to the WKCDI Licensed Content, including copyrights and other intellectual property.
1.12 Disclosure.Customer shall treat the WKCDI Licensed Content as confidential. Customer shall not share or disclose the WKCDI Licensed Content to any individual or entity other than as set forth herein. If Customer receives a request to disclose the WKCDI Licensed Content to a third-party, Customer shall promptly communicate such request to WKCDI and Licensor for approval, disapproval, or objection.
1.13 No Other Rights.Rights not expressly granted to Customer herein are reserved to WKCDI and/or Licensor as may be the case. Neither Customer nor Customer Authorized Users have any implied rights in, or to use of, the WKCDI Licensed Content; rather, all rights applicable to Customer and Customer Authorized Users are expressly set forth in this Addendum.
1.14 Equitable Relief.Customer agrees that money damages would not be a sufficient remedy for any actual or threatened breach of the provisions of this Addendum by Customer or Customer Authorized Users and that, in addition to all other remedies, WKCDI is entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, and Customer further agrees to waive, and to use its best efforts to cause its directors, officers, employees, and agents to waive, any requirement for the proving of actual money damages or securing or posting of any bond in connection with such remedy.
1.15 DISCLAIMER OF WARRANTIES.WKCDI RECEIVES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS AND GOVERNMENT AGENCIES. WKCDI CANNOT, AND DOES NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, OR SUBSTANTIATE THE CONTENT FOR ACCURACY, TIMELINESS, OR COMPLETENESS AND DISCLAIMS ALL RESPONSIBILITY FOR ANY OMISSIONS OR ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. IN ADDITION, THE CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES, OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR HEALTH CONDITION, DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF HEALTH CONDITIONS, PRESCRIPTION AND NON-PRESCRIPTION DRUGS AND TREATMENT OPTIONS, IT DOES NOT INCLUDE ALL HEALTH CONDITIONS, DRUGS, VACCINES, DEVICES, AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN HEALTH CONDITION, DRUG OR DRUG COMBINATION, OR TREATMENT OPTION IS NOT AN INDICATION THAT NO SUCH WARNING MAY BE RELEVANT TO A PARTICULAR PATIENT. MOREOVER, THE CONTENT THAT MAY BE PROVIDED TO CUSTOMER OR CUSTOMER AUTHORIZED USERS MAY PROVIDE USEFUL INFORMATION ABOUT HEALTH CONDITIONS, MEDICATIONS, AND TREATMENT OPTIONS, BUT THE CONTENT IS LIMITED AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE CONTENT IS NOT INTENDED, AND CUSTOMER AGREES NOT TO RELY ON, AND AGREES TO INSTRUCT CUSTOMER AUTHORIZED USERS NOT TO RELY ON, THE CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, NURSES, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE.
IN LIGHT OF THE FOREGOING, THE WKCDI LICENSED CONTENT IS FURNISHED BY WKCDI “AS IS” AND WKCDI, ITS AFFILIATES, AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WKCDI LICENSED CONTENT OR ANY SERVICES HEREUNDER AND DISCLAIM ALL IMPLIED REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE ARISING OUT OF OR RELATED TO THIS ADDENDUM, THE WKCDI LICENSED CONTENT, OR RESULTS DERIVED THEREFROM INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS AND WARRANTIES (i) REGARDING COMPREHENSIVENESS, SUITABILITY, AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THE WKCDI LICENSED CONTENT (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OR ANY WARRANTY THAT THE CONTENT SATISFIES GOVERNMENT REGULATIONS. NO WKCDI OR LICENSOR EMPLOYEE, CONSULTANT, REPRESENTATIVE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS ADDENDUM.
1.16 LIMITATION OF LIABILITY.NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, IN NO EVENT SHALL WKCDI, LICENSOR, ITS OR THEIR AFFILIATES OR LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO CUSTOMER, CUSTOMER AUTHORIZED USERS, ITS OR THEIR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS ADDENDUM OR USE OF THE WKCDI LICENSED CONTENT, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (A) DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE, OR IMPROPER USE OF THE WKCDI LICENSED CONTENT OR (B) FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN AN AMOUNT EXCEEDING THE LICENSE FEES ATTRIBUTABLE TO THE WKCDI LICENSED CONTENT PAID BY CUSTOMER TO LICENSOR DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH SPECIFIC INSTANCE OF LIABILITY. IN NO EVENT WILL LICENSOR, WKCDI, ITS SUBSIDIARIES OR AFFILIATES, OR ANY OF ITS OR THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER, CUSTOMER AUTHORIZED USERS, ITS OR THEIR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS ADDENDUM, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL), REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY AS WELL AS THE DISCLAIMERS SET FORTH HEREIN ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN AND WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS A MATERIAL PART OF THE CONSIDERATION PROVIDED BY CUSTOMER IN EXCHANGE FOR THE RIGHTS CUSTOMER HAS BEEN GRANTED HEREUNDER.
1.17 Customer Indemnification.Customer shall defend, indemnify and hold harmless WKCDI, Licensor and its and their licensors and affiliates and their respective officers, directors, employees, contractors and agents, from all claims, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) arising out of, connected with, or resulting in any way from any third party action, claim, or any other assertion of a legal right (including by a government entity), even if the claim is groundless, fraudulent, or false, in connection with, resulting from, arising out of, or relating to, Customer’s or Customer Authorized Users’: (a) use of the WKCDI Licensed Content; (b) provision of any content from the WKCDI Licensed Content to patients or other third-parties by Customer or Customer Authorized Users; or (c) modification made to the WKCDI Licensed Content by Customer or Customer Authorized Users. If Customer is a governmental entity subject to statutory limitations that apply to this section, Customer shall provide the indemnifications to the full extent permitted by the statutory limitations but not in violation of such limitations. In the event of an action subject to indemnification hereunder, Customer shall provide written notice to Licensor and WKCDI in a timely manner after Customer receives actual notice of the existence of a claim. Customer shall have the right, at its expense, to employ counsel reasonably acceptable to WKCDI and/or Licensor, as applicable, to defend the claim, and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing duties or restrictions upon WKCDI may be effected without the prior written consent of WKCDI. WKCDI and/or Licensor, as applicable, will cooperate in such action by making available to Customer, at Customer’s expense, records reasonably necessary for the defense of the claim.
1.18 Third Party Beneficiary.Customer acknowledges and agrees that the provisions of this Agreement are intended to inure to the benefit of WKCDI, and that WKCDI is an intended third party beneficiary. If Customer breaches any of these provisions, Licensor and/or WKCDI will be entitled to enforce this Agreement directly against Customer, whether in Licensor's or WKCDI's name.
1.19 Government End-Users.The Licensed Content, all its components, and the information contained therein qualify as “commercial computer software” and “commercial computer software documentation” under Federal Acquisition Regulation (“FAR”) 2.101 and 12.212, paragraph (a)(1) of the Department of Defense FAR Supplement (“DFARS”) clause 252.227-7014, “Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation,” and DFARS 227.7202. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government Licensees/Authorized Users acquire the WKCDI Licensed Content with only those license rights set forth in this Addendum.
Addendum for Medi-Span
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | Medi-Span is the company providing this product. Customer hereby agrees to terms required by Medi-Span in Exhibit A. |
| Functionality | Customer desires to add connectivity to Medi-Span’s Knowledge Bases. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
Terms Required by Medi-Span
1.Intellectual Property. Customer will not alter, amend, modify, or change in any respect, any Medi-Span products unless authorized to do so by Medi-Span. Without limiting the foregoing, Customer shall have no right to use, modify, reproduce, or distribute Medi-Span products, nor the right to license third parties to exercise any rights with regards to Medi-Span products.
2.Disclaimers.
- a. Medi-Span has utilized reasonable care in collecting and reporting the information contained in the Medi-Span products and has obtained such information from sources believed to be reliable. Medi-Span, however, does not warrant the accuracy of codes, prices, or other data contained in the Medi-Span products. Information reflecting prices is not a quotation or offer to sell or purchase. The clinical information contained in the Medi-Span products is intended as a supplement to, and not a substitute for, the knowledge, expertise, skill, and judgement of physicians, pharmacists, or other healthcare professionals in patient care. The absence of a warning for a given drug or drug combination should not be construed to indicate that the drug or drug combination is safe, appropriate, or effective in any given patient.
- b. MEDI-SPAN MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AND FURTHER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF THE DATA FROM WHICH THE MEDI-SPAN PRODUCTS ARE COMPILED, NOR THE COMPATIBILITY OF THE MEDI-SPAN PRODUCTS WITH CUSTOMER’S HARDWARE AND SYSTEMS, AND SPECIFICIALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- c. IN NO EVENT SHALL MEDI-SPAN BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF MEDI-SPAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- d. IN NO EVENT SHALL MEDI-SPAN’S LIABILITY EXCEED THE AMOUNT PAID TO IT BY ECLINICALWORKS FOR THE CURRENT FEE TERM OF THIS LICENSE AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR CLAIM, AND REGARDLESS OF WHETHER THE ACTION OR CLAIM IS BASED ON ANY ALLEGED ACT OR OMISSIONON OF MEDI-SPAN, INCLUDING BUT NOT LIMITED TO ANY ACTION BASED ON NEGLIGENCE, BREACH OF WARRANTY OR BREACH OF CONTRACT.
3.Professional Responsibility. Customer acknowledges that the professional duty to the patient in providing healthcare services lies solely with the healthcare professional providing patient care services. Customer takes full responsibility for the use of information provided by the Medi-Span products in patient care and acknowledges that the use of the Medi-Span products in no way is intended to replace or substitute for professional judgement. Medi-Span does not assume any responsibility for actions of Customer which may result in any liability or damages due to malpractice, failure to warn, negligence, or any other basis. Customer shall ensure that all healthcare professionals using the Medi-Span products are aware of the limitations of the use of the Medi-Span products.
Addendum for 3M FLUENCY MOBILE & DIRECT®
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | 3M Health Information Systems, Inc. (“3M”) is the company providing this product. Customer hereby agrees to the 3M END USER LICENSE AGREEMENT in Exhibit A. |
| Functionality | Customer desires to add connectivity to 3M Fluency Mobile and/or Direct® (“3M Product”). |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
3M END USER LICENSE AGREEMENT
1.The use of the 3M Product pursuant to this End User License Agreement is non-exclusive and non-assignable, and the 3M Product is solely for Customer’s internal use, used in compliance with this End User License Agreement, and Customer shall not: (i) use the 3M Product to process data for the benefit of any other entity, (ii) make the 3M Product accessible to any entity other than a reported authorized user, (iii) make any modifications, derivatives works of, disassembling or otherwise reverse engineering the 3M Product, and (iv) make copies of the 3M Product, except for archival and backup purposes;
2.The use of the 3M Documents pursuant to this End User License Agreement is non-exclusive and non-assignable, and the 3M Documents are solely for Customer’s internal use, used in compliance with this End User License Agreement, and that the Customer must not: (i) provide, or make accessible, the 3M Documents to any third party (i.e., the Customer must hold the 3M Documents in confidence and may not allow a third-party access to the 3M Documents), (ii) make any modifications to or derivatives of the 3M Documents, including the removal of any copyright or other proprietary rights notices, and (iii) making copies of the 3M Documents, except for archival and backup purposes.
- a.“3M Documents” means written product reference, technical requirements, operations and/or users manuals and other proprietary documents, and all revisions thereto, which provide specifications or instructions for the use of the 3M Product furnished to Vendor by 3M.
3.The liability of 3M and its licensors is expressly limited to the fullest extent permitted by law.
4.This End User License Agreement will be terminated if Customer violates its terms and fails to cure such violation.
5.To the extent Customer licenses other 3M products directly from 3M that require data transfer between the 3M Product and 3M products set forth on Customer’s 3M agreement, Customer authorizes eClinicalWorks to disclose Customer’s data to 3M for performance of services that 3M provides to Customer under a separate agreement between 3M and Customer.
6.3M has the right to aggregate and modify all Customer data sent to 3M using the 3M Product, and to use such data to develop, enhance, deliver, and support the 3M Product(s) and their underlying technologies. 3M has ownership of all feedback relating to the 3M Product(s).
Prescription Drug Monitor Programming (PDMP) ACKNOWLEDGMENT
By and through this Acknowledgment, Customer requests that eClinicalWorks, LLC (“eClinicalWorks”) interface with APPRISS for the purpose of allowing Customer to utilize the multistate prescription drug monitor programming (PDMP) through APPRISS’s NarxCare or Gateway solution. This Acknowledgment is incorporated into the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) and its purpose is to make additional software and/or services available to Customer. It constitutes a binding agreement between eClinicalWorks and Customer.
Customer Representations
- a)By accepting this Acknowledgement, the individual making that acceptance is authorized to do so and to bind the Customer to the terms of this Acknowledgment.
- b)Customer has obtained login credentials directly from APPRISS and agrees to be bound by the terms and conditions included in its agreement with APPRISS.
- c)Customer understands that nothing in this Acknowledgment modifies, amends, or changes in any way any other contracts or agreements between Customer and eClinicalWorks.
- d)Customer requests, authorizes, and directs eClinicalWorks to transmit protected health information (PHI) to APPRISS to facilitate the agreement between Customer and APPRISS.
Terms and Conditions
- a)Limitation on Liability. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL ECLINICALWORKS BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND RELATED TO THE SUBJECT MATTER OF THIS ACKNOWLEDGEMENT, EVEN IF ECLINICALWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- b)Customer agrees to indemnify, defend, and hold harmless eClinicalWorks for any claim arising out of Customer’s use of the APPRISS NarxCare or Gateway solution or out of Customer’s contractual relationship with APPRISS.
Addendum For Quality Reporting Document Architecture (“QRDA”)
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement (incorporated by reference), each Terms of Use (incorporated by reference), this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add the Quality Reporting Document Architecture (“QRDA”) service for extracting and submitting QRDA files. Customer, through users having administrative rights, can configure the specific providers who will participate in this service. |
| Prerequisite | This module should be activated when Customer is ready to begin QRDA reporting. Customer must first setup the MIPS Dashboard. Customer must further have the minimum quality measures already selected, mapped, and configured for each provider. |
| Additional Fees and Payment | This agreement does not include submission of data for any incentive program. Additional fees may apply for consulting services |
| Cancellation | To cancel contact eClinicalWorks a via a Support Case logged on the Customer Care Portal. Cancellation may take up to 60 days |
| Disclaimer | eClinicalWorks will extract data from the required fields in Customer’s EHR database to generate a properly formatted QRDA file. HOWEVER, the resulting QRDA file is only as accurate as the data that Customer has correctly entered into the EHR database. ECLINICALWORKS MAKES NO COVENANT, WARRANTY, OR REPRESENTATION AS TO THE ACCURACY OR CORRECT ENTRY OF THE DATA STORED BY CUSTOMER AND THEN EXTRACTED FOR INCLUSION IN THE QRDA FILE, AND ECLINICALWORKS DISCLAIMS ANY AND ALL LIABILITY FOR THE ACCURACY OR CORRECT ENTRY OF THE DATA STORED IN THE CUSTOMER’S EHR DATABASE. Customer bears sole responsibility for accurately and correctly entering data that will be included in the QRDA file. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Warranties | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
Addendum For Santovia
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Functionality | Customer desires to add Santovia patient education for the entire practice. Only one education can be active at any time. If Customer chooses to activate one integration, any others will be automatically deactivated. |
| Add on fees and payment | Add on services to Santovia will be signed and agreed after Santovia patient education is switched on. |
| Disclaimer | Santovia and eClinicalWorks are independent entities with no claim to the other’s trademarks. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with Santovia’s education services associated with this Addendum |
| Warranties | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
eClinicalWorks Scribe
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
"eClinicalWorks Scribe" is functionality which allows natural language processing and conversion of free text into displayed structured and reportable data (eg: Allergies, Vitals, Assessments).
Disclaimer: eClinicalWorks disclaims any warranty that the service will perfectly translate voice to text, as well as any warranty of merchantability, accuracy, or fitness for a particular purpose.
TeleVisits
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
Customer understands and agrees that eClinicalWorks does not guarantee, and is not responsible or liable for ensuring that the Telehealth Solutions will enable patients and Customer’s Providers to communicate in a manner that (i) complies with all applicable laws and regulations, including but not limited to laws and regulations regarding the provision of telemedicine and telehealth services, and/or (ii) qualifies for any partial or full reimbursement or insurance coverage from any third-party payors or insurers, or otherwise meets requirements imposed by third-party payors or insurers. Customer understands and agrees that eClinicalWorks makes no representations regarding the reimbursement status or coverage by third-party payors or insurers of any healthcare services provided via the Telehealth Solutions, and is not responsible for any payments or collection of payments relating to such Telehealth Solutions from patients, third-party payors, insurers or others.
Any content provided by eClinicalWorks through the Patient Portal or the Telehealth Solutions is for informational and educational purposes only and is not a substitute for the professional judgment of a Provider in diagnosing and treating patients. eClinicalWorks will at no time provide, direct, or control, and does not have the authority to provide, direct, or control, any service, function, or acts of Customer or Customer’s Providers that would constitute the clinical practice of medicine or the provision of professional medical services. Customer recognizes that eClinicalWorks does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on or transmitted through the Telehealth Solutions (regardless if the foregoing is mentioned or transmitted by healthcare providers, insurance providers, or similar professionals or organizations). eClinicalWorks is not responsible for, and disclaims any and all liability resulting from, Customer’s communication with, or provision of healthcare services to, patients through the Telehealth Solutions. Customer understands and agrees that Customer is solely responsible for, and eClinicalWorks is not liable or responsible for, ensuring that, with respect to Customer’s Providers using the Telehealth Solutions: (i) each Provider has an unrestricted, active medical or other clinical license in any state or other professional certification; (ii) each Provider is providing professional clinical or medical services, including via the Telehealth Solutions, in a manner that complies with all applicable laws, regulations, professionally recognized standards and policies and procedures applicable to Provider (including, but not limited to, laws and regulations regarding the provision of telemedicine and telehealth services); and (iii) each Provider has obtained consent from the patient to the extent required by, and in accordance with, all applicable laws, regulations, and standards, and has established a valid patient-provider relationship in compliance with all applicable laws, regulations, and standards. Customer understands and agrees that Customer is solely responsible for, and eClinicalWorks is not liable or responsible for, ensuring each Provider obtains and maintains any medical or professional liability insurance policy or policies as may be required by applicable laws, regulations, and standards.
Customer understands and agrees that eClinicalWorks makes no representations regarding the accuracy of information provided by patients through the Telehealth Solutions. Customer understands and agrees that eClinicalWorks is not liable or responsible in any way for cancelled or otherwise unfulfilled TeleVisits or h2h Communications or any injury resulting therefrom, or for any other injury resulting from the use of Telehealth Solutions whatsoever. Customer understands and agrees that patients must agree to the Terms of Use in order to access Telehealth Solutions.
Addendum for NDSC
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | National Decision Support Company, LLC (NDSC) is the company providing this product. Customer hereby agrees to NDSC’s Terms of Use in Exhibit A. |
| Functionality | Customer desires to add connectivity to the NDSC services. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
NDSC’s Terms of Use
The NDSC services are provided via the internet and customer acknowledges that neither NDSC nor its suppliers operate or control the internet. As such, the NDSC services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Neither NDSC nor its suppliers are responsible for any delays, delivery failures, or other damages resulting from such problems. Customer acknowledges and agrees that customer, as between NDSC and customer, is solely responsible for its use of all data and output from the NDSC services, including confirming the condition, quality, accuracy, reliability, suitability, and functionality of the NDSC services.
The NDSC services and other services provided under this Addendum are provided “as-is, “where-is,” and “as-available,” with all faults and without warranty of any kind. NDSC expressly disclaims on behalf of itself and its suppliers any and all warranties of any kind, express, implied, or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Neither NDSC nor any NDSC supplier represents or warrants that access to the NDSC services will be uninterrupted or error-free, that defects (if any) will be corrected, or that the NDSC services are free of viruses or other harmful components; nor does NDSC or its suppliers make any representations or warranties about the accuracy, reliability, currency, quality, performance, or suitability of the NDSC services or other services.
Addendum for Nuance
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | Nuance Communications, Inc. (“Nuance”) is the company providing this product. Customer hereby agrees to Nuance’s Terms of Use in Exhibit A. |
| Functionality | Customer desires to add connectivity to the Nuance services. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
HEALTHCARE MASTER AGREEMENT
PLEASE READ THIS HEALTHCARE MASTER AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE EXECUTING AN ORDER WITH THE AUTHORIZED RESELLER IDENTIFIED BELOW FOR THE PURCHASE OF NUANCE PRODUCTS. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS APPLICABLE TO YOUR PURCHASE OF THE NUANCE PRODUCTS FROM THE AUTHORIZED RESELLER. WHEN YOU EXECUTE AN ORDER WITH THE AUTHORIZED RESELLER FOR THE PURCHASE OF NUANCE PRODUCTS, THIS AGREEMENT BECOMES A BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU, AS THE PARTY TO THE ORDER WITH AUTHORIZED RESELLER, AND NUANCE COMMUNICATIONS, INC. (“NUANCE”), LOCATED AT 1 WAYSIDE DRIVE, BURLINGTON, MA 01803. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE THE ORDER. PLEASE NOTE THIS AGREEMENT GRANTS NON-EXCLUSIVE LIMITED LICENSES AND RIGHTS TO USE CERTAIN SOFTWARE AND SERVICES BUT DOES NOT CONSTITUTE A SALE OR TRANSFER OF ANY SOFTWARE CODE.
General Terms and Conditions
This Agreement consists of the General Terms and Conditions below and all Schedules, Addenda and Exhibits attached to or incorporated by reference in this Agreement. You are referred to hereafter as the “Company.” Nuance and Company are sometimes referred to individually as a “Party” and collectively as the “Parties.” In consideration of the mutual covenants stated below, and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1.DEFINITIONS. In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall have the meanings set forth below:
- 1.1. “Affiliates” means any entity that is directly or indirectly controlled by, under common control with, or in control of a Party. For these purposes, an entity shall be treated as being controlled by another if that other entity (i) has fifty percent (50%) or more of the votes in such entity, or (ii) is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
- 1.2. “Authorized Reseller” means Nuance’s authorized reseller, eClinical Works, LLC (“ECW”), with offices at 2 Technology Drive, Westborough, MA 01581.
- 1.3. “Authorized User(s)” are those individuals who are authorized, subject to the terms and conditions of this Agreement, to access and use the Nuance Software and/or Hosted Services, which individuals are limited to those authorized under the applicable Schedule or Order.
- 1.4. “Data” means the audio, image, and/or text data input, all data elements output (e.g. interpretation of clinical contents in xml or other format), associated transcripts or medical reports, whether in draft or final form, any information received from Company under any Order under this Agreement, or any other clinical information received by Nuance from Company under this Agreement.
- 1.5. “Documentation” means the administrative guide and user’s guide provided by Nuance to Company to facilitate the use of the Nuance Products and Hosted Services.
- 1.6. “Equipment” means Nuance Equipment and Third Party Equipment, collectively.
- 1.7. “General Terms and Conditions” means the term of this Agreement contained under the heading “General Terms and Conditions.”
- 1.8. “Hosted Service” means a Nuance proprietary subscription-based software as a service (SaaS) offering specified in an Order, as more particularly described in the applicable Schedule. Any software provided by Nuance which is sited at Company (for example client software to access the Hosted Services) is considered Software and subject to the terms governing Software.
- 1.9. “Maintenance Services” means the services that Nuance provides, pursuant to an Order, to maintain Software and Equipment (as applicable) and to provide end user support, as more fully described at URL- http://support.nuance.com/healthcare under “Healthcare Hardware and Software Maintenance Options” or as otherwise described in an applicable Schedule. The Maintenance Services applicable during any annual Maintenance Services period shall be the Maintenance Services terms and conditions in effect as of the first date of each such annual Maintenance Services period. Maintenance Services does not include Hosted Services support which is provided by Nuance on the terms set forth in this Agreement and/or the applicable Schedule.
- 1.10. “Nuance Equipment” means Nuance manufactured hardware specified in an Order.
- 1.11.“Nuance Products” means the Nuance Software and Nuance Equipment, collectively.
- 1.12. “Nuance Software” means the object code version of any Nuance proprietary software product specified in an Order, including all corrections, modifications, enhancements, Updates and Upgrades (if any) thereto that Nuance may provide to Company under this Agreement, and all related Documentation.
- 1.13. “Order” means an order for Software licenses, Equipment and/or Services that is signed and issued by Company to Authorized Reseller, for which Authorized Reseller submits a corresponding order to Nuance that is accepted by Nuance, or, as the context requires, the order that Authorized Reseller places with Nuance based on Company’s order. An Order includes any applicable Statement of Work.
- 1.14. “Professional Services” means any installation, project management and/or consulting services provided by Nuance pursuant to an Order, as specified in an Order, and which may be more fully described in a Statement of Work.
- 1.15. “Schedule” means each of the documents identified as a Schedule or as an addendum to a Schedule that define the specific terms that apply to the specific Nuance Products and Services and license models identified in an Order, and which form part of this Agreement by being attached or by being incorporated by reference as identified in Exhibit B or in the Order.
- 1.16. “Services” means Maintenance Services, Training Services, Professional Services, Hosted Services and/or Transcription Services, as applicable.
- 1.17. “Software” means Nuance Software and Third Party Software, collectively.
- 1.18. “Statement of Work” or “SOW” means the supplement to an Order, if any, that details the Professional Services and/or Training Services purchased under the Order.
- 1.19. “Term” is defined in Section 7.1 of the General Terms and Conditions.
- 1.20. “Third Party Equipment” means any third party manufactured hardware to be provided by Nuance as specified in an Order.
- 1.21. “Third Party Software” means any third party proprietary software to be provided by Nuance as specified in an Order.
- 1.22. “Training Services” means any training services provided by Nuance pursuant to an Order, as specified in an Order.
- 1.23. “Transcription Services” means any transcribing services and/or editing services provided by Nuance pursuant to an Order, as specified in an Order and more fully described in the applicable Schedule for Transcription Services.
- 1.24. “Update” means a release of Nuance Software, issued as part of Maintenance Services (or as part of an Authorized Reseller maintenance plan authorized and supported by Nuance), that may include minor feature enhancements, and/or bug fixes and/or fixes of minor errors and/or corrections, and typically is identified by an increase in a release or version number to the right of the first decimal (for example, an increase from Version 5.1 to 5.2 or from Version 5.1.1 to 5.1.2). “Update” shall not be construed to include Upgrades.
- 1.25. “Upgrade” means a release of Nuance Software, issued as part of Maintenance Services (or an Authorized Reseller maintenance plan authorized and supported by Nuance), that may include some feature enhancements and/or additional capabilities (functionality) over versions of the Nuance Software previously supplied to Company, and typically is identified by an increase in the release or version number to the left of the decimal (for example, an increase from Version 5.2 to Version 6.0). Upgrades do not include new software and/or products that Nuance, in its sole discretion, designates and markets as being independent from the previously purchased Nuance Software.
2. SCOPE OF AGREEMENT. The terms of this Agreement apply to Company’s purchase of the Software licenses, Equipment, and Services specified in an Order. Nuance may accept an Order by fulfilling it.
3. GRANT OF RIGHTS.
3.1. Software
- 3.1.1.License Grant. Subject to the terms and conditions of this Agreement, Nuance grants to Company, and Company accepts, a limited, non-exclusive, non-transferable, non-sub-licensable license to permit its Authorized Users to use the Nuance Software and/or Hosted Services and associated Documentation listed in the applicable Order, in accordance with the grant of rights and/or licenses specified in the applicable Schedule, provided such use is (i) commensurate with the intended use of the Nuance Software and/or Hosted Services (as prescribed in this Agreement and the applicable Documentation), and (ii) solely for Company’s internal business purposes unless other purposes are expressly permitted by the applicable Schedule. Any open source software which may be included in the Software is licensed under the applicable public license.
- 3.1.2.Third Party Software. Third Party Software supplied by Nuance is subject to the terms and conditions of this Agreement and the applicable third party terms as may be specified in an applicable Schedule or Order.
- 3.1.3.Updates and Upgrades. Upon installing any Update or Upgrade to Nuance Software, Company shall discontinue use of the previous version of such Nuance Software and Company will be licensed to use only the updated or upgraded version of the Nuance Software, in accordance with the license granted by Nuance with respect to such Nuance Software. Company will not be entitled to Updates and Upgrades if it is not under a current Nuance-authorized maintenance services plan with Nuance (or Authorized Reseller, if applicable) under which Updates and Upgrades are made available.
- 3.2. Equipment. Equipment supplied by Nuance is subject to the terms and conditions of this Agreement and, if Third Party Equipment, the applicable third party terms as may be specified in an applicable Schedule or Order.
- 3.3. Proprietary Rights; Restrictions. Notwithstanding any use of the term “sale,” “purchase” or other similar terms in this Agreement, Nuance and its licensors retain all right, title and interest in and to the Software, Services and Documentation, and any derivative works thereof, including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith. Without limiting the generality of the foregoing, Company will not itself, directly or indirectly, and will not permit Authorized Users, other employees or contractors, or any third party to (i) access the Hosted Services with software or means other than as described in this Agreement, (ii) submit any automated or recorded requests to the Hosted Services except as otherwise provided in this Agreement, (iii) modify, port, translate, or create derivative works of the Software, Services, or Documentation, (iv) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Software or Services by any means, (v) sell, lease, license, sublicense, copy, assign, transfer, share, market, or distribute the Software, Services or Documentation, except as expressly permitted in this Agreement, (vi) grant any access to, or use of, the Software or Services on a service bureau, timesharing or application service provider basis, (vii) remove any proprietary notices, labels or marks from the Software, Services or Documentation, (vii) release to a third party the results of any benchmark testing of the Software or Services, or (viii) defeat or circumvent any controls or limitations contained in or associated with the use of the Software. In no event shall anything in this Agreement or in Nuance’s conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark or other intellectual property right not explicitly licensed. All rights not expressly granted to Company under this Agreement are reserved by Nuance and/or its licensors.
- 3.4. Authorized Users. Company is responsible for each Authorized User’s compliance with the terms of this Agreement and guarantees each Authorized User’s compliance with the terms of this Agreement. Company will be liable for any act or omission by an Authorized User that, if performed or omitted by Company, would be a breach of this Agreement. Company will, at its expense, defend any and all claims, actions, suits, or proceedings made or brought against Nuance by any Authorized User with respect to this Agreement (each, a “User Claim”), and pay any losses, claims, costs, expenses, damages, or liabilities (including reasonable attorneys’ fees) sustained or incurred by Nuance arising from a User Claim. Company shall promptly notify Nuance upon learning of any actual or suspected unauthorized possession or use of any Software or Hosted Services supplied under this Agreement.
4.SERVICES. Subject to the terms and conditions of this Agreement, Nuance will provide the Services specified in an Order.
- 4.1. Maintenance Services. Unless otherwise provided in an applicable Schedule or Order, Nuance will provide Maintenance Services for Nuance Software licensed on a fixed term basis for the duration of each such license term. Company is required to purchase first year Maintenance Services for all other licenses of Software unless otherwise agreed by Nuance and Nuance will provide the first year Maintenance Services indicated in the applicable Order. If Nuance offers Maintenance Services for the applicable Software and/or Equipment for renewal periods, Nuance or Authorized Reseller will, at least thirty (30) days prior to the end of the then-current Maintenance Service term, invoice Company for a subsequent one-year renewal term of Maintenance Services at the rates in effect on the renewal date. Company shall, if it wishes to renew annual Maintenance Services for the applicable Software and/or Equipment, pay the invoice for renewal Maintenance Services in full within thirty (30) days of the date of such invoice. If Company elects not to renew Maintenance Services, Company shall not be required to pay the invoice for subsequent annual renewals, provided Company notifies Authorized Reseller or Nuance of its election not to renew before the end of the then-current Maintenance Services term or before any earlier date required by Authorized Reseller. Company acknowledges that failure to pay its invoice for Maintenance Services within the required 30-day period or before the expiration of the current Maintenance Services period will result in Maintenance Services expiring with respect to such Software and/or Equipment. If permitted by Nuance, Company may reinstate Maintenance Services that have expired, provided that Company first pays all Maintenance Services fees that would have been due for the period following the expiration of the previous Maintenance Service period, and orders all Professional Services (at Nuance’s then-current rates) necessary to implement the then-current version of the applicable Software. The initial annual Maintenance Services Term shall commence as described in the applicable Schedule and Order, and each subsequent annual Maintenance Services Service Term will commence on the anniversary thereof. Company must purchase the same Maintenance Service level for all Software licenses and Equipment units for a given Nuance Product. Unless otherwise agreed, Nuance shall not be obligated to provide Maintenance Services for, or required as result of, (i) any Software or Equipment modified by any party other than Nuance, (ii) any Software or Equipment used for other than its intended purpose, (iii) any Software or Equipment used with equipment not specified as compatible in the Documentation,(iv) any Software or Equipment being used with software not supplied by Nuance, unless specified as compatible in the Documentation, (v) any Software or Equipment (or any associated equipment, software or firmware) which Company failed to properly install or maintain, (vi) any willful misconduct or negligent action or omission of Company, (vii) any computer malfunction not attributable to the Software or Equipment, or (viii) damage to Software or Equipment from any external source, including computer viruses not attributable to Nuance, computer hackers, or force majeure events.
- 4.2. Training Services. Unless otherwise agreed to by the Parties, Training Services will be held at a designated Nuance location during Nuance’s standard business hours, excluding Nuance recognized holidays. If the Parties agree to hold any Training Services at Company’s site, all such Training Services (including associated travel time) will be conducted between the hours of 8:00 a.m. to 5:00 p.m. local Company site time, Monday through Friday, excluding Nuance recognized holidays. Company shall ensure that all Training Services attendees are or will be Authorized Users and have the skills and experience to participate in the training sessions.
- 4.3. Professional Services. Unless otherwise agreed to by the Parties, all Professional Services (including associated travel) will be conducted between the hours of 8:00 a.m. to 5:00 p.m. local Company site time, Monday through Friday, excluding Nuance recognized holidays.
- 4.4. Hosted Services. Hosted Services will be as further described in, and will be provided by Nuance in accordance with, the applicable Schedule.
- 4.5. Transcription Services. Transcription Services will be as further described in, and will be provided by Nuance in accordance with, the applicable Schedule.
- 4.6. On-Location Services. If Nuance will perform Services at a location other than a Nuance facility, Company shall provide or arrange for the necessary equipment, information, and facilities required by Nuance to perform such Services, as specified by Nuance.
5. MEDICAL CARE RESPONSIBILITY. COMPANY ACKNOWLEDGES THAT SOFTWARE AND SERVICES ARE NOT ERROR FREE. FURTHERMORE, SPEECH RECOGNITION, NATURAL LANGUAGE PROCESSING, AND MEDICAL FACT EXTRACTION (SUCH AS PERFORMED IN MEDICAL TRANSCRIPTION SERVICES) ARE STATISTICAL PROCESSES THAT ARE INHERENTLY INACCURATE AND THAT ERRORS OCCUR IN THE CONTENT, OUTPUT AND RESULTS OF SUCH PROCESSES THAT NUANCE IS NOT RESPONSIBLE FOR. COMPANY AGREES THAT IT IS THE SOLE RESPONSIBILITY OF COMPANY AND EACH AUTHORIZED USER TO IDENTIFY AND CORRECT ANY SUCH ERRORS AND INACCURACIES BEFORE USING AND/OR RELYING ON THE CONTENT, RESULTS OR OUTPUT OF ANY SOFTWARE AND/OR SERVICES PROVIDED UNDER THIS AGREEMENT, FOR ANY MEDICAL-PRACTICE-RELATED PURPOSES. COMPANY AGREES THAT NUANCE IS NOT PROVIDING MEDICAL PRACTICE ADVICE, AND THAT COMPANY AND EACH AUTHORIZED USER WILL CONSULT WITH AND RELY EXCLUSIVELY ON ITS OWN PHYSICIANS OR OTHER MEDICAL DIRECTION FOR REVIEW, NECESSARY REVISIONS AND APPROVAL OF ANY AND ALL SUCH MEDICAL-PRACTICE-RELATED CONTENT, RESULTS OR OUTPUT. NUANCE ASSUMES NO RESPONSIBILITY FOR ANY OF THE FOREGOING, AND COMPANY SHALL INDEMNIFY AND HOLD HARMLESS NUANCE AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS (EACH, AN “INDEMNIFIED PARTY”), FROM AND AGAINST ANY DAMAGES, CLAIMS OR OTHER LIABILITIES FOR THE WRONGFUL DEATH OR PERSONAL INJURY OF A THIRD PARTY DIRECTLY OR INDIRECTLY CAUSED OR ARISING OUT OF (I) COMPANY’S USE OR NON-USE OF ANY SOFTWARE OR SERVICE, (II) ANY CONTENT, RESULTS OR OUTPUT FROM ANY SOFTWARE OR SERVICE, (III) ANY MEDICAL-PRACTICE-RELATED RECOMMENDATIONS PROVIDED BY NUANCE, AND (IV) COMPANY’S FAILURE TO IDENTIFY AND CORRECT ANY INACCURACIES AND/OR ERRORS IN THE CONTENT, RESULTS OR OUTPUT OF ANY SOFTWARE AND/OR SERVICES PROVIDED UNDER THIS AGREEMENT.
6. PAYMENT AND DELIVERY.
- 6.1. Purchases from Authorized Reseller. Company is responsible for paying Authorized Reseller all fees indicated in its Orders with the Authorized Reseller, and related taxes and expenses, in accordance with terms of its agreement with the Authorized Reseller. Company’s failure to pay Authorized Reseller any fees due to Authorized Reseller for the Software licenses, Equipment or Services indicated in an Order when due will be a material breach of this Agreement by Company.
- 6.2. Purchases from Nuance. Company is responsible for paying Authorized Reseller all fees indicated in the Order, and all applicable taxes and assessments related thereto. The following terms of this Section 6.2 shall apply only in the event that any fees are payable directly to Nuance under this Agreement (based on an order placed directly with Nuance, or as a result of Authorized Reseller assigning any Company order for Software, Equipment or Services to Nuance, or as indicated in the Agreement):
- 6.2.1. Fees. Nuance will invoice Company for any fees and other charges payable to Nuance and Company shall pay to Nuance all fees and other charges specified in such invoice. All fees due to Nuance under the Agreement are non-cancelable.
- 6.2.2. Expenses. Prices do not include travel expenses that may be incurred in the course of providing Services, including, but not limited to, transportation, meals, lodging and other living expenses. Company shall pay or reimburse Nuance for all such charges and expenses reasonably incurred.
- 6.2.3. Taxes. Company shall pay all taxes, duties, import and export fees, and any other charges or assessments, except the withholding of income taxes, which are applicable to the performance of this Agreement, and shall reimburse Nuance for any encumbrance, fine, penalty, or other expense which Nuance may incur as a result of Company’s failure to pay any such taxes, duties, fees, charges, or assessments. For purposes of this Agreement, the term “taxes” shall include, but is not limited to any and all assessments and other governmental charges, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use, value added, ad valorem, consumption, transfer, franchise and withholding taxes, except taxes imposed on the net income of Nuance, together with all interest, penalties and additions imposed with respect to such amounts. If any applicable law requires Company to withhold an amount from any payment to Nuance hereunder, Company shall effect such withholding, remit such amount to the appropriate taxing authority, and supply Nuance with the tax receipt evidencing the payment of such amount to the government within sixty (60) days of its receipt by Company. To the extent that an income tax convention between the country of Nuance and the country of Company permits, upon the filing of a proper application, for a reduction or elimination of such withholding tax, the Parties shall cooperate in the completion and filing of such application. Company shall provide to Nuance, and Nuance shall complete and return to Company, all applicable forms required by the governing tax authority in order to secure the reduction or elimination of withholding tax as authorized by the convention.
- 6.2.4. Payment. Except as otherwise set forth in the applicable Schedule or Company’s order with Nuance, Company shall pay all invoices issued by Nuance in U.S. dollars, either by mail or wire transfer, within thirty (30) days of the date of invoice in accordance with the remittance information contained on the invoice. Interest shall accrue at the rate of one and one half percent (1.5%) per month on any amounts past due. Company shall reimburse Nuance for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts from Company. If Company fails to pay for any Equipment, Nuance reserves the right to repossess such Equipment. Nuance reserves the right to suspend Services to Company in the event any invoice is past due. Company shall notify Nuance in writing within thirty (30) days of the date of invoice if it disputes any amount contained in an invoice.
- 6.2.5. Company Purchase Orders. Company agrees to pay Nuance’s invoices without a purchase order reference. Company acknowledges and agrees that if it is Company’s standard practice to issue unsigned purchase orders, such purchase orders are valid and binding. Neither Party shall be subject to provisions of any pre-printed terms on or attached to purchase orders generated by Company, or any Company policies, regulations, rules, or the like, including those set forth in any Company-sponsored registration system, regardless if such requires affirmative acknowledgement from a Nuance representative.
- 6.3. Audit. Company shall keep full, true and accurate records and accounts to support its use of the Software and Hosted Services, as applicable, under this Agreement. Nuance, or a third party appointed by Nuance, will have the right, not more than once a year and upon reasonable notice, to conduct an audit of Company’s systems and records to confirm compliance with the terms of this Agreement. Any audit will be performed during Company’s normal business hours. If an audit reveals that Company’s Software or Hosted Services usage exceeds its usage rights, as granted by Nuance, Company shall pay Nuance for all such excess usage, based on Nuance’s standard pricing in effect at the time of the audit. If such excess usage exceeds five percent (5%) of the authorized usage, Company shall also pay Nuance’s reasonable costs of conducting the audit. Nothing in this Section 6.3 will limit any other remedy available to Nuance.
- 6.4.Shipment. For Orders with Software and/or Equipment requiring delivery by Nuance within the United States, such Software and/or Equipment will be shipped “FOB Shipping Point”. For Orders with Software and/or Equipment requiring delivery by Nuance outside the United States, unless otherwise specified in the applicable Schedule or Order such Software and/or Equipment will be shipped “CPT Shipping Point,” or, at Nuance’s option, “EX WORKS” with carrier arranged by Company. As between Nuance and Company, Company shall bear all shipping, freight and transportation charges from Nuance’s warehouse facility.
7. TERM; TERMINATION.
- 7.1. Term. This Agreement commences on the date of the first Order accepted by Nuance and, unless terminated earlier in accordance with the terms hereof, will continue in effect, unless the Parties otherwise agree in writing (“Term”). Company’s rights and Nuance’s obligations related to Software licenses and/or Services delivered pursuant to an Order shall be limited to the duration or term of such Software license or Service as specified in the applicable Schedule or Order.
- 7.2. Termination for Cause. Either Party may terminate this Agreement or any Order upon written notice if the other Party commits a material breach of this Agreement or such Order and fails to cure such breach within thirty (30) days of receipt of written notice describing such breach. Notwithstanding the foregoing, Nuance may terminate this Agreement and/or any Order immediately upon written notice to Company if Company (a) infringes Nuance’s intellectual property rights, (b) commits, or permits any third party to commit, any breach of confidentiality obligations under Section 9 (“Confidentiality”), or (c) Company has a receiver appointed to handle its assets or affairs, admits that it is insolvent, or is otherwise unable to pay its debts as they mature, or ceases to do business in the ordinary course.
- 7.3. Effect of Termination. Upon termination of this Agreement, all Orders issued under this Agreement will immediately terminate. Upon the termination of an Order, all Software licenses and Services under such Order shall immediately terminate, and Company shall immediately (a) cease use of the applicable Software (in any form, including partial copies in its possession or under its control) and/or Services, (b) return to Nuance or destroy all copies of the Software and certify in writing to Nuance that no copies have been retained by Company within ten (10) days of any expiration or termination, and (c) pay any outstanding amounts due to Nuance. The expiration or termination of this Agreement, an Order, or any license shall not affect Company’s obligations to pay Authorized Reseller or Nuance for amounts due in connection this Agreement.
- 7.4. Survival. Notwithstanding anything to the contrary in this Section 7, the provisions of Sections 1, 3.3, 3.4, 5, 6, 7.3, 7.4, 8, 9, 10, 11, 12, and 14 of these General Terms and Conditions shall survive expiration or termination of this Agreement.
8. HIPAA. The Parties agree to the HIPAA Business Associate Addendum attached hereto as Exhibit A or other form of Business Associate terms and conditions that are attached or incorporated by reference in Exhibit A, wherein Nuance is identified as a “Business Associate” and Company is identified as a “Covered Entity”.
9. CONFIDENTIALITY.
- 9.1. Definition. Subject to the exceptions contained in this Section 9.1, "Confidential Information" shall mean (a) all information disclosed by a Party or its Affiliates (the “Disclosing Party”), in whatever tangible form or otherwise, to the other Party or its Affiliates (the “Receiving Party”) that is clearly marked “confidential” or with some other proprietary notice, (b) all information disclosed orally or otherwise in intangible form by the Disclosing Party and designated as confidential or proprietary at the time of the disclosure; and (c) the Software, Documentation, and information provided as part of any Services. Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it: (i) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party at the time of disclosure without any obligation of confidentiality; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party; or (v) is protected health information or any other personally identifiable information (the protection of which is governed by the Business Associate terms and conditions identified in Exhibit A). The obligation not to use or disclose Confidential Information will remain in effect until one of these exceptions occurs.
- 9.2. Permitted Disclosure. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall be permitted if such disclosure (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding Party shall first have given notice to the other Party hereto and shall have made a reasonable effort to obtain, and shall have permitted the other Party to seek to obtain, a protective order limiting the scope of the required disclosure and requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued, (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
- 9.3. Use and Obligations. The Receiving Party will not use the Disclosing Party’s Confidential Information for purposes other than as provided in this Agreement. The Receiving Party shall protect the Disclosing Party’s Confidential Information, to prevent its unauthorized use, disclosure, or publication to third parties, by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature. Confidential Information received by a Receiving Party hereto may be disclosed to and used by such Receiving Party’s employees, agents and contractors in accordance with the terms and conditions of this Agreement, and each Party shall be liable for any act or omission by its Affiliates, and its and their respective employees, agents and contractors, which, if performed or omitted by such Party, would be a breach of this Agreement. Each Party agrees that its Affiliates, and its and their respective employees, agents and contractors, shall be bound by the terms of an agreement protecting against unauthorized use or disclosure of Confidential Information that is at least as protective of the Disclosing Party’s rights as this Agreement. No Confidential Information shall be disclosed to any person who does not have a need for such information.
- 9.4. Return of Confidential Information. The Receiving Party shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party in tangible form: (i) upon the written request of the Disclosing Party; or (ii) upon the expiration or termination of this Agreement, whichever comes first. In both cases, the Receiving Party shall, upon request, promptly certify in writing that it has complied with the obligations of this Section 9.4. Notwithstanding the foregoing, each Party may retain a copy of the Confidential Information in electronic format in accordance with its corporate security and/or disaster recovery procedures.
10.DATA. Company is solely responsible for obtaining all necessary consents under applicable laws and regulations in order to allow Nuance to use the Data in accordance with this Section 10. Company gives Nuance the right, and Nuance has permission to use, the Data in accordance with this Section 10, and to de-identify the Data in accordance with 45 C.F.R. §164.514. Nuance and third parties acting under the direction of Nuance may use, compile (including creating statistical and other models), annotate and otherwise analyze the Data to develop, train, tune, enhance and improve the speech recognition, natural language understanding and other components of its software and services. Nuance shall own all intellectual property rights in all enhancements and improvements to its software and services that result from such use of the Data. Any and all information that Company provides will remain confidential, and Nuance may only provide access to Data to third parties acting under the direction of Nuance in order to fulfill the foregoing use of the Data, pursuant to confidentiality agreements, or to meet legal or regulatory requirements, such as under a court order or to a government institution if required or authorized by law. Nuance will not use the names of individuals and companies to contact anyone for any reason. Nuance receives, uses and/or maintains only copies of official medical records or portions thereof, the originals of which must continue to be maintained by Company or its contractors. Accordingly, the foregoing Data shall not be deemed an official medical record or health record for any patient.
11. LIMITED WARRANTIES.
- 11.1. Nuance Software Warranty. Nuance warrants that upon initial installation of the Nuance Software (in the case of Nuance Software that, pursuant to the applicable Order, is to be installed by Nuance) or initial delivery of the Nuance Software to Company (in all other cases), and for a period of ninety (90) days thereafter (the “Software Warranty Period”), the Nuance Software will operate in all material respects in conformity with its Documentation. Company’s sole and exclusive remedy and Nuance’s sole obligation for any breach of the warranty set forth in this Section 11.1 will be for Nuance, at Nuance’s option, to undertake reasonable efforts to correct or replace the nonconforming Nuance Software reported by Company during the Software Warranty Period, or to accept a return of the Nuance Software and refund to Company the fees paid by Company to Nuance for such non-conforming Nuance Software, and terminate the license to any such non-conforming Nuance Software.
- 11.2. Nuance Equipment Warranty. Nuance warrants that upon initial installation of the Nuance Equipment (in the case of Nuance Equipment that, pursuant to the applicable Order, is to be installed by Nuance) or initial delivery of the Nuance Equipment to Company (in all other cases), and for a period of ninety (90) days thereafter (the “Equipment Warranty Period”), the Nuance Equipment will operate in all material respects in conformity with its Documentation. Company’s sole and exclusive remedy and Nuance’s sole obligation for any breach of the warranties set forth in this Section 11.2 will be for Nuance, at Nuance’s option, to undertake reasonable efforts to correct or replace the nonconforming Nuance Equipment reported by Company during the Equipment Warranty Period, or to accept a return of and refund to Company, the fees paid by Company to Nuance for such non-conforming Nuance Equipment.
- 11.3. Services Warranty. Nuance warrants that the Maintenance Services, Training Services and Professional Services provided by Nuance pursuant to this Agreement shall be performed in a professional manner by trained and skilled personnel. Company must notify Nuance of any breach of such warranty within ninety (90) days following performance of the non-conforming Services giving rise to the breach of warranty claim. Company’s sole and exclusive remedy and Nuance’s entire liability for any breach of the warranty set forth in this Section 11.3 will be for Nuance to re-perform such non-conforming Services that Company notified Nuance of in accordance herewith. The only warranty rights, if any, for Hosted Services and Transcription Services shall be those set forth in the relevant Schedule.
- 11.4. Limitation of Warranties. The warranties set forth in this Section 11 (“Limited Warranties”) shall not apply, and Nuance shall have no warranty obligation or liability with respect to, (a) any Nuance Product that (i) is damaged through no fault of Nuance, (ii) is modified by anyone other than Nuance, (iii) is used for any purpose other than its intended purpose (as specified in the Documentation), (iv) is used with equipment not specified as compatible with the Nuance Product in such Nuance Product’s Documentation, (v) is used with software not specified as compatible with said Nuance Product in the Nuance Product’s Documentation, (vi) Company fails to properly install or maintain, (b) any computer malfunction not attributable to the Nuance Products or Nuance, (c) any incorrect use of the Nuance Products, or (d) any willful misconduct or negligent action or omission of Company.
- 11.5. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 11 (“LIMITED WARRANTIES”) ARE EXCLUSIVE AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND NUANCE HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT AND TITLE. NUANCE DOES NOT GUARANTEE THAT THE SOFTWARE, EQUIPMENT OR SERVICES WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULT, OR THAT THE SERVICES WILL BE PERFORMED WITHOUT ERROR OR INTERRUPTION. NUANCE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY THIRD PARTY EQUIPMENT.
- 11.6. Back up and Testing. Company acknowledges its responsibility to regularly back-up data and to adequately test, prior to deployment of each production version of the Software in a configuration that reasonably simulates Company’s planned production environment.
12. LIMITATION OF LIABILITY.
- 12.1. Scope. The following provisions set out the exclusions and limitations of liability of Nuance and its Affiliates, and their respective officers, agents, contractors and employees, to Company and its Affiliates, and their respective officers, agents, customers, contractors and employees, under or in connection with this Agreement, and/or in connection with any tortuous act or omission including without limitation negligence and/or breach of duty including statutory duty arising under or in connection with this Agreement.
- 12.2. Application. Nothing in this Agreement shall be taken to exclude or limit Nuance’s liability for fraud or fraudulent misrepresentation, for intentional or criminal misconduct; for death, personal injury or tangible property damage caused by its negligence in providing services at Company locations; or to the extent that such exclusion or limitation is not permitted by applicable law.
- 12.3. Limitation of Liability. Save for Nuance’s liability under the second subsection of this Section 12 (“Limitation of Liability”), which shall not be excluded or limited under this Agreement, the Parties, having assessed the risks, agree that Nuance’s total liability shall not exceed for each consecutive 12 months period (“Annual Period”) of this Agreement (the first period commencing on the Effective Date) an aggregate amount equal to 100% of the amount paid by the Company during the corresponding Annual Period.
- 12.4. No Consequential Damages. Subject to the foregoing provisions of this Section, Nuance shall not shall not be liable for loss of profits or revenues, loss of anticipated savings, loss of customers, or loss of use of any software or Data, nor for any special, consequential or indirect loss or damage, costs, expenses or other claims for consequential compensation, howsoever caused, which arise out of or in connection with this Agreement or the Services.
- 12.5. Third Party Suppliers. Under no circumstances shall Nuance’s third party suppliers of any component of the Nuance Software, Hosted Services or Nuance Equipment be responsible or liable to Company or its affiliates for any damages, direct or otherwise, arising under this Agreement or otherwise arising from the transactions contemplated herein. Such third party suppliers are third party beneficiaries of the foregoing sentence.
13. INDEMNIFICATION. Nuance shall, at its own expense, defend or, at its option, settle, any action brought against Company by a third party during the Term to the extent it is based on a claim that the Nuance Software and/or Hosted Services infringes any United States or Canadian patent, copyright or trademark, or misappropriates a trade secret of such third party. Nuance will indemnify Company against any losses, damages and expenses that are attributable to such claim or action and are assessed against Company in a final judgment. Nuance shall have the foregoing obligations only if Company provides Nuance with (a) a prompt written request to undertake the defense in such claim or action, (b) sole control and authority over the defense and settlement thereof, and (c) all available information and assistance necessary to settle and/or defend any such claim or action. If the Nuance Software and/or Hosted Services becomes, or in the opinion of Nuance, is likely to become, the subject of an infringement claim or action, Nuance may, at its option, (a) procure, at no cost to Company, the right to continue using the Nuance Software and/or Hosted Services, (b) replace or modify the Nuance Software and/or Hosted Services to render it non-infringing, provided there is no material loss of functionality, or (c) if, in Nuance’s reasonable opinion, neither (a) nor (b) above are commercially feasible, terminate Company’s right to use such Nuance Software and/or Hosted Services and (i) with respect to perpetual Nuance Software licenses, refunding the license fees Company paid for such Nuance Software, depreciated on a straight-line sixty (60) month basis from the delivery date, and (ii) with respect to Hosted Services, or term licenses or maintenance and support fees for Nuance Software, refund any prepaid and unused fees paid by the Company for the infringing Nuance Software and/or Hosted Services. Nuance will have no obligation or liability under this Section for any claim or action resulting from any of the following: (a) any claim or action that would have arisen due to Company’s business activities without use of the particular technology employed by the Nuance Software and/or Hosted Services, or (b) any claim or action resulting from any of the following: (i) modifications to the Nuance Software and/or Hosted Services by a party other than Nuance, (ii) the combination of the Nuance Software and/or Hosted Services with other products, processes, or materials not provided by Nuance if the Nuance Software and/or Hosted Services itself would not infringe, (iii) specifications or requirements supplied by Company that were used for the configuration of the Nuance Software and/or Hosted Services, or (iv) where Company continues allegedly infringing activities after being provided with modifications that would have avoided the alleged infringement. This Section states the sole obligation and exclusive liability of Nuance (express, implied, statutory or otherwise), and the sole remedy of Company, for any third-party claims or actions of infringement of any intellectual property or other proprietary right.
14. MISCELLANEOUS.
- 14.1. Assignment. Company shall not assign or otherwise transfer its rights and/or obligations under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by Nuance. Notwithstanding the foregoing, either Party may assign its rights and obligations hereunder to a third party in connection with (i) a merger with, (ii) the sale of substantially all of its assets to, (iii) a consolidation with, or (iv) the sale or intercompany assignment of a substantial part or all of its business utilizing this Agreement, provided (a) the assigning Party provides the other Party with prompt written notice of such sale, merger or consolidation, and (b) the assignee agrees to be bound by all terms and conditions set forth by this Agreement. Any such assignment by Company shall not increase the scope of any license or Service without the prior written consent of Nuance.
- 14.2. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excluded to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party and not due to its fault or negligence.
- 14.3. Notices. All notices hereunder shall be sent by the notifying Party, in writing, to the other Party (Attention: General Counsel) at its address set forth above (or such other address as it may communicate to the notifying Party in writing). Notice shall be deemed delivered and effective (i) when delivered personally, (ii) five (5) days after posting when sent by certified United States mail (return receipt requested), or (iii) one (1) day after posting when sent by reputable private overnight courier (e.g., DHL, Federal Express, etc.).
- 14.4. Relationship between the Parties. In all matters relating to this Agreement, Company and Nuance shall act as independent contractors. Except as may be otherwise expressly permitted hereunder, neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity. Nuance shall at all times have the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be performed by Nuance hereunder unless otherwise provided herein. Nuance shall, at all times, be responsible for the compliance of its third parties involved in the delivery of the Services in accordance with the terms and conditions of this Agreement. Nothing in this Agreement shall be construed to create any contractual relationship between Company and any such third parties, nor any obligation on the part of Company, to pay or to ensure the payment of any money due any such third party.
- 14.5. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA, without regard to choice of law rules, and Company hereby submits to the jurisdiction of the federal and state courts located in said Commonwealth and the applicable service of process. The official text of the Agreement and any Addendum or any notices given on accounts or statements required hereby shall be in English. In Canada, Province of Quebec for all contracts drafted in English, both Parties agree to write this document in English. Les Parties ont convenu de rédiger le présent document en langue anglaise.
- 14.6. Injunctive Relief. Each Party acknowledges that any use or disclosure of Confidential Information by a Receiving Party in breach of this Agreement or any violation of Nuance’s, its Affiliates’ or their respective licensors’ intellectual property rights may cause irreparable damage to the non-breaching Party, for which remedies other than injunctive relief may be inadequate, and the breaching Party agrees that it shall not object to the non-breaching Party seeking injunctive or other equitable relief to restrain the alleged breach or violation. The Parties further agree that in the event such equitable relief is granted in the United States, they will not object to courts in other jurisdictions granting provisional remedies enforcing such United States judgments.
- 14.7. Partial Invalidity; Waiver. If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event the Parties shall use reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. Any deviation by a Party from the terms and conditions required under applicable laws, rules and regulations shall not be considered a breach of this Agreement. Neither a failure of a Party to exercise any power or right given to such Party hereunder or to insist upon strict compliance by the other Party with its obligations hereunder, nor any custom or practice of the other Party at variance with the terms hereof, shall constitute a waiver of a Party's right to demand exact compliance with the terms of this Agreement.
- 14.8. Publicity. Each Party is authorized to use the name and logo of the other Party on its website solely to identify such Party’s relationship. In addition, either Party may refer to the existence of the Agreement or the relationship of the Parties in connection with a press release related to regulatory filings. Nuance may include Company’s name in Nuance’s customer list, and may identify Company as its customer in its sales presentations, marketing materials, advertising, promotion and similar public disclosures. Any additional statements regarding the relationship of the Parties hereunder shall require mutual written consent.
- 14.9. Entire Agreement; Headings; Counterparts. This Agreement, its Schedules, Exhibits, Amendments, and all Orders issued hereunder constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the Parties. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each of the Parties. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in counterparts and via electronic transmission, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument.
- 14.10. Order of Precedence. In the event of a conflict between or among the provisions in this Agreement, the order of precedence shall be as follows: (i) Schedules, (ii) General Terms and Conditions, (iii) Business Associate Terms and Conditions, (iv) Maintenance Services terms, and (v) each Order (except any invoicing or delivery terms explicitly stated on an applicable Order, or as explicitly otherwise provided in an applicable Order, or where the applicable Schedule states that Orders under such Schedule shall be superseding).
- 14.11. No Third Party Beneficiaries. Except as expressly stated otherwise in this Agreement, nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the Parties to this Agreement
- 14.12. Export Controls; Government Use. Company shall comply with all applicable export and import laws and regulations and, unless authorized by applicable governmental license or regulation, shall not directly or indirectly export or re-export any technical information or software subject to this Agreement to any prohibited destination. If software or services are being acquired by or on behalf of the U.S. Government or by a U.S Government prime contractor or subcontractor (at any tier), the software, services and related documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101. The software and documentation consists of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein.
- 14.13. Foreign Corrupt Practices Act. Company shall comply with all applicable laws or regulations in all countries in which Company conducts business. The fact that in some countries certain laws prohibiting particular conduct are not enforced in practice or that violation is not subject to public criticism or censure, will not excuse noncompliance with those laws. Furthermore, Company confirms by way of signature of this Agreement that Company has knowledge and understanding of the Foreign Corrupt Practices Act of the United States of America (“FCPA”) and shall comply with the FCPA at all times.
- 14.14. HHS Audit Right. Until the expiration of four (4) years after the furnishing of Services under this Agreement, Nuance shall make available, upon written request of the Secretary of the Department of Health and Human Services ("Secretary"), or upon request of the Comptroller General, or any of their duly authorized representatives, this Agreement and the books, documents and records of Nuance that are necessary to certify the nature and extent of the costs for which Company seeks reimbursement. Nuance further agrees that if Nuance carries out any of the duties of this Agreement through a subcontract with a value or cost of ten thousand dollars ($10,000) or more over a twelve (12) month period with a related organization, such subcontract shall contain a clause to the effect that until the expiration of four (4) years after furnishing services pursuant to such subcontract, the related organization shall make available to the Secretary or the Comptroller General, as the case may be, or any of their duly authorized representatives, the subcontract, and such books and documents and records of such organization that are necessary to verify the nature and extent of such costs.
- 14.15. Discount Reporting Obligations. Any discount or rebate, including a single discounted item or bundled discounts, received by Company hereunder is a "discount or other reduction in price," as such terms are defined under (i) the discount exception of the Medicare/Medicaid Anti-Kickback Statute (42 U.S.C. § 1320a 7b(b)(3)(A)) (“Discount Exception”) and (ii) the "safe harbor" regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h) (“Discount Safe Harbor”), on the products or services purchased by Company under the terms of this Agreement. Under the Discount Exception or Discount Safe Harbor, Company may have an obligation to accurately report the net cost actually paid by Company, under any state or federal program which provides cost- or charge-based reimbursement for the products or services covered by this Agreement, or as otherwise requested or required by any governmental agency.
- 14.16. GPO. Nuance and Company agree that this Agreement (inclusive of any Schedules and Orders) is not connected in any way to any General Purchasing Organization (“GPO”), and is not made part of or subject to the provisions of any GPO contract. No administrative fees (or similar fees) will be paid to any GPO as a result of the revenue hereunder.
- 14.17. Authorized Reseller. Authorized Reseller remains independent and separate from Nuance. Nuance is not responsible for, and Company releases Nuance from liability for, the actions, omissions, statements or recommendations of Authorized Reseller or any obligations that Authorized Reseller has to Company, including as relate to Company’s Orders with Authorized Reseller.
Business Associate Terms and Conditions HIPAA BUSINESS ASSOCIATE ADDENDUM
WHEREAS, Nuance (or “Business Associate”) may, pursuant to the Healthcare Master Agreement to which this HIPAA Business Associate Addendum is attached (the “Agreement”), perform certain services on behalf of or for Company (or “Covered Entity”) that require Nuance to access, create and use health information that is subject to the Health Insurance Portability and Accountability Act of 1996, Subtitle D of the Health Information Technology for Economic and Clinical Health Act, and their implementing regulations, as amended (collectively, “HIPAA”); and
WHEREAS, this Exhibit A, which is attached to and made part of the Agreement, serves to establish the responsibilities of both Parties regarding Protected Health Information (“PHI”), and to bring this Agreement into compliance with HIPAA.
NOW, THEREFORE, the Parties agree to the following additional terms and conditions to those otherwise in the Agreement:
AGREEMENT
1. Definitions. Capitalized terms used in this Exhibit A, but not otherwise defined, shall have the same meanings ascribed to them in HIPAA
2. No Third Party Beneficiary. Nothing in this Exhibit A is intended, nor shall be deemed, to confer any benefits on any third party.
3. Permitted Uses and Disclosures. Except as otherwise specified herein, Business Associate may use and/or disclose PHI to perform the functions, activities, or services for or on behalf of Covered Entity as specified in this Agreement, provided that such use and/or disclosure would not violate HIPAA if done by Covered Entity. Except as otherwise limited in this Agreement, Business Associate may:
- a. use PHI for the proper management and administration of Business Associate and to carry out the legal responsibilities of Business Associate, and except as otherwise limited by this Exhibit A or the Agreement, as permitted by HIPAA.
- b. disclose PHI for the proper management and administration of Business Associate and to carry out the legal responsibilities of Business Associate, provided that the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom PHI is disclosed that the PHI will remain confidential and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of PHI has been breached.
- c. use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 C.F.R. §164.504(e)(2)(i)(B).
- d. use PHI to create de-identified health information in accordance with 45 C.F.R. §164.514(b) and may disclose de-identified health information for any purpose permitted by law.
4. Responsibilities of Business Associate. Business Associate agrees:
- a. to use appropriate safeguards, and to comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement.
- b. not to use or further disclose PHI other than as permitted or required by this Agreement or by law.
- c. to report to Covered Entity any use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware, including a Breach of Unsecured PHI as required by 45 C.F.R. § 164.410, and any successful Security Incident of which it becomes aware. The Parties acknowledge and agree that this section 4.c. constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use, or disclosure of PHI.
- d. to make PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Business Associate available to Covered Entity for Covered Entity to comply with an Individual’s right of access to their PHI in compliance with 45 C.F.R. §164.524.
- e. to make PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Business Associate available to Covered Entity for amendment and incorporate any amendment(s) to PHI that Covered Entity directs, in accordance with 45 C.F.R. §164.526.
- f. to make the information required to provide an accounting of disclosures of PHI with respect to the Individual available to Covered Entity in response to a request from an Individual in accordance with 45 C.F.R. §164.528.
- g. to the extent this Agreement requires Business Associate to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 C.F.R. Part 164, to comply with the requirements of Subpart E that apply to Covered entity in the performance of such obligation(s).
- h. to make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary of the Department of Health and Human Services or his/her designee (the “Secretary”), in a time and manner designated by the Secretary, for purposes of determining Covered Entity’s compliance with the HIPAA.
- i. to ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to substantially the same restrictions and conditions that apply to Business Associate with respect to such information in accordance with 45 C.F.R. § 164.502(e)(1)(ii).
- j. if Business Associate knows of a pattern of activity or practice of a Subcontractor that constitutes a material breach or violation of HIPAA, to take reasonable steps to cure the breach or end the violation, as applicable, and if such steps are unsuccessful, terminate the contract or arrangement with such entity, if feasible.
- k. to the extent required by the “minimum necessary” requirements of HIPAA, Business Associate shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
- l. to refrain from receiving any remuneration in exchange for any Individual’s PHI unless such exchange (i) is pursuant to a valid authorization that includes a specification of whether the PHI can be further exchanged for remuneration by the entity receiving PHI of that Individual, or (ii) satisfies one of the exceptions enumerated in the HIPAA regulations and specifically Section 13405(d)(2) of the HITECH Act.
- m. to refrain from marketing activities that would violate HIPAA and specifically Section 13406 of the HITECH Act.
5. Responsibilities of Covered Entity. Covered Entity shall:
- a. provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R. §164.520, as well as any changes to such notice.
- b. provide Business Associate, in writing, with any changes in, or revocation of, permission by Individual to the use or disclosure of PHI, if such changes affect Business Associate’s permitted or required uses or disclosures. Upon receipt by Business Associate of such notice of changes, Business Associate shall cease the use and disclosure of any such Individual’s PHI except to the extent it has relied on such use or disclosure, or where an exception under HIPAA expressly applies.
- c. notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. §164.522
6. Termination.
- a.Termination for Cause. Either Party may immediately terminate this Agreement if such Party (the “Non-Breaching Party”) determines that the other Party (the “Breaching Party”) has breached a material term of this Exhibit A. Alternatively, the Non-Breaching Party may choose to provide the Breaching Party with written notice of the existence of an alleged material breach and afford the Breaching Party an opportunity to cure the alleged breach. Failure to cure the material breach within thirty (30) days of the written notice constitutes grounds for immediate termination of this Agreement.
b. Effect of Termination.
- (1) Except as provided in paragraph (2) of this Section 5(b), upon termination of this Agreement for any reason, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This Section 5(b)(1) shall apply to PHI that is in the possession of Business Associate and its subcontractors or agents. Business Associate shall retain no copies of the PHI.
- (2) In the event that Business Associate reasonably determines that returning or destroying the PHI is infeasible, Business Associate shall provide to Covered Entity, in writing, notification of the conditions that make return or destruction infeasible, and Business Associate shall extend the protections of this Exhibit A to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.
7.Indemnification.
Business Associate shall reimburse, indemnify and hold harmless Covered Entity for all direct costs, expenses (including reasonable attorneys’ fees), damages and other losses resulting directly from any negligent breach of this Business Associate Addendum, Security Incident or Breach of PHI maintained by Business Associate or Business Associate’s agent or subcontractor, subject to the provisions of the Agreement. The foregoing includes, without limitation: fines or settlement amounts owed to a state or federal government agency; the cost of any notifications to individuals or government agencies; credit monitoring for affected individuals; or other mitigation steps taken by Covered Entity to comply with HIPAA or state law.
Exhibit B
Schedules
| Schedule for Dragon Medical Practice Edition |
| Schedule for Dragon Medical Network Edition – Client License (Physician/Non-Physician) |
| Schedule for Nuance Management Server for Dragon Medical Network Edition |
| Schedule for Nuance Management Server for Dragon Medical Network Edition - Administrator License |
| Schedule for Dragon Medical One - User Licenses |
| Schedule for PowerMic Mobile - User Licenses |
| Schedule for Dragon Medical One and PowerMic Mobile - User Licenses (with Pilot License Option) |
SCHEDULE for DRAGON MEDICAL PRACTICE EDITION
The General Terms and Conditions and this Schedule for Dragon Medical Practice Edition (“Schedule”) apply to the Applicable Software specified in an Order. In the event of a conflict between the General Terms and Conditions and the terms of this Schedule, the terms of this Schedule will prevail.
1. Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Applicable Software” means the Dragon Medical Practice Edition Software specified in an Order.
- “Authorized User” is as defined below in Section 2 of this Schedule.
- “Clinician” means a person qualified in the clinical practice of healthcare (including, but not limited to, a physician, nurse, chiropractor, physical therapist, and physician’s assistant), working on behalf of Customer.
- “User Profile” means the record of an individual’s speaker-specific data that provides a consistent dictation experience across successive dictation sessions by such individual.
2. Grant of Rights. Subject to the terms and conditions of the General Terms and Conditions, this Schedule and the applicable Order, for each license to the Applicable Software purchased (as indicated in the Order), Nuance hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to allow a single Clinician (an “Authorized User”) to use the Applicable Software; provided such use is: (i) in a manner commensurate with its intended use (as prescribed by the Documentation), and (ii) solely for Customer’s internal business purposes. Customer shall not allow any Authorized User to use the Applicable Software for: (a) the Authorized User’s own personal use, or (b) the benefit of any third party. Customer shall not allow anyone other than the Authorized Users to use the Applicable Software. A separate license to the Applicable Software must be purchased for each Clinician whose User Profile is used by the Applicable Software.
SCHEDULE FOR DRAGON MEDICAL NETWORK EDITION - CLIENT LICENSE
The terms of this Schedule for Dragon Medical Network Edition - Client License (“Schedule”) apply to the Applicable Software specified in an Order (such Order, the “Applicable Order”). In the event of a conflict between the General Terms and Conditions and the terms of this Schedule, the terms of this Schedule will prevail.
1. Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Applicable Software” means Nuance’s Dragon Medical Network Edition (DMNE) Software, licensed pursuant to the “Physician Client License” or the “Non-Physician Client License” License Model.
- “Authorized User” is as defined below in Section 2 of this Schedule.
- “Device” means a personal computing device as specified in the accompanying Documentation.
- “License Duration” means the duration of the license grant specific to a particular Software license, which duration is either a Perpetual License or a Term License, as indicated in the Applicable Order.
- “NMS Software” means Nuance’s proprietary Nuance Management Server software product.
- “Non-Physician” means a person who is not a Physician (including, but not limited to, a nurse, physician assistant, or psychologists), working on behalf of Company.
- “Physician” means a person who is a physician (including, but not limited to, a full-time or part-time physician, resident, attending physician, physician with privileges, M.D., or D.O.) working on behalf of Company.
- “Perpetual License” means a license grant that is not limited in duration, subject to early termination pursuant to the Agreement.
- “Term License” means a license grant that is limited in duration, which duration is as indicated in the Applicable Order, subject to early termination pursuant to the Agreement.
- “User Profile” means the record of an individual’s speaker-specific data that provides a consistent dictation experience across successive dictation sessions by such individual.
2. Grant of Rights. Subject to the terms and conditions of the Agreement (including this Schedule), for each license to the Applicable Software purchased (as indicated in the Applicable Order), Nuance hereby grants Company, and Company accepts, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to allow a single Physician or Non-Physician (such Physician or Non-Physician, an “Authorized User”) to use the Applicable Software during the License Duration; provided such use is: (i) in a manner commensurate with the intended use of the Applicable Software (as prescribed by the Agreement and the Documentation), and (ii) solely for Company’s internal business purposes. Company shall not allow any Authorized User to use the Applicable Software for: (a) the Authorized User’s own personal use, or (b) the benefit of any third party. Company shall not allow anyone other than the Authorized Users to use the Applicable Software. A separate license to the Dragon Medical Network Edition Software must be purchased for each Physician or Non-Physician whose User Profile is used by the Dragon Medical Network Edition Software. Use of the Dragon Medical Network Edition Software requires that Company have a valid licensed copy of NMS Software, which software is licensed separately.
3. Restrictions. If the Applicable Software is identified on the Applicable Order as being a “Non-Physician Client License,” then the Authorized User under such license must be a Non-Physician, and Company shall not allow a Physician to utilize the Applicable Software under such license.
4. Right to Copy. Pursuant to the rights granted under Section 2 of this Schedule, Company may reproduce and install copies of the Applicable Software on as many Devices as is reasonably necessary to exercise its license rights under Section 2 of this Schedule. All such copies must be true and complete copies (including intellectual property notices) and be made from media or files supplied by Nuance to Company under the Agreement or from a network source if true and complete copies of such media or files supplied by Nuance are copied to the network source.
5. License Replacement Process for the Dragon Medical Network Edition Software.
If Company receives a discount on Dragon Medical Network Edition licenses in exchange for surrendering or terminating previously purchased licenses of a Dragon Medical product (the “Legacy Licenses”), any Legacy Licenses that form the basis for that discount shall be listed on the Order. If an Order identifies Legacy Licenses, then upon execution of the Order, Company’s rights to the Legacy Licenses will occur thirty (30) days following the date of the Applicable Order, or upon installation of the Dragon Medical Network Edition Software, whichever occurs first. If any of the Legacy Licenses were licensed to Company by a Nuance authorized reseller on a sublicense basis, then Company’s rights to the Dragon Medical Network Edition Software are subject to Company first terminating its license rights with respect to such Legacy Licenses. Upon termination of Company’s rights to the Legacy Licenses, Company shall uninstall and return to Nuance or destroy all copies of the Pre-existing Licenses and, upon written request from Nuance, certify to Nuance in writing that Company has done so, within ten (10) days of such notice.
SCHEDULE FOR NUANCE MANAGEMENT SERVER FOR DRAGON MEDICAL NETWORK EDITION
The terms of this Schedule for Nuance Management Server for Dragon Medical Network Edition (“Schedule”) apply to the Applicable Software specified in an Order (such Order, the “Applicable Order”). In the event of a conflict between the General Terms and Conditions and the terms of this Schedule, the terms of this Schedule will prevail.
1. Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Applicable Software” means the Nuance Management Server for Dragon Medical Network Edition Software specified in an Order, which Software consists of the Nuance Management Server (NMS) Software and the Dragon Medical Network Edition (DMNE) Software.
- “Authorized User” is as defined below in Section 2(b) of this Schedule.
- “DMNE Software” means the Dragon Medical Network Edition Software component of the Applicable Software.
- “Instance”. An “Instance” of the NMS Software is created by installing the NMS Software, or by duplicating an existing “Instance”. References to the NMS Software in this Schedule include “Instances” of the NMS Software.
- “License Duration” means the duration of the license grant specific to a particular Software license, which duration is either a Perpetual License or a Term License, as indicated in the Applicable Order.
- “NMS Software” means the Nuance Management Server Software component of the Applicable Software.
- “Operating System Environment” means a single instance of an operating system and instances of applications, if any, configured to run on that single operating system instance.
- “Perpetual License” means a license grant that is not limited in duration, subject to early termination pursuant to the Agreement.
- “Physical Operating System Environment” means an Operating System Environment configured to run directly on a physical hardware system that uses physical processors, each occupying a single socket on a system’s motherboard in a physical hardware system.
- “Processor” is generally a physical chip that resides in a physical socket of the hardware partition and contains one or more Cores.
- “Term License” means a license grant that is limited in duration, which duration is as indicated in the Applicable Order, subject to early termination pursuant to the Agreement.
- “Virtual Operating System Environment” means an Operating System Environment configured to run on a virtual (or otherwise emulated) hardware system that uses virtual processors, whereby a “virtual processor” is a processor in a virtual (or otherwise emulated) hardware system. A “virtual processor” is considered to have the same number of threads and cores as a physical processor on the underlying physical hardware system.
2. Grant of Rights. Subject to the terms and conditions of the Agreement (including this Schedule), Nuance hereby grants Company, and Company accepts, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license, solely during the License Duration, to: (a) install and run one Instance of the NMS Software for production purposes (such Instance, the “Production Instance”), and one Instance of the NMS Software solely for non-production testing purposes (such Instance, the “Testing Instance”). The Production Instance and Testing Instance shall each be run on one compatible Physical Operating System Environment or one Virtual Operating System Environment, whereby, to “run an Instance” means to load the NMS Software into memory and execute one or more of its instructions (once running, an Instance is considered to be running, whether or not its instructions continue to execute, until it is removed from memory). (b) allow up to: (i) twenty (20) Company employees and contractors, for both the Production Instance and Testing Instance, to use the Nuance Management Console for NMS to set up Company’s licensed users of Dragon Medical Network Edition Software, manage the user options, and perform maintenance tasks on the NMS Software; and (ii) five (5) Company employees and contractors, for both the Production Instance and Testing Instance, to use the DMNE Software for the sole purpose of testing Dragon Medical Network Edition Software - to support Company’s licensed users (each such employee and contractor under this Section 2(b), an “Authorized User”). For the avoidance of doubt, the Dragon Medical Network Edition Software component of the Applicable Software cannot be used for clinical dictation.
3. Restrictions. Company shall not allow any Authorized User to use the Applicable Software for: (a) the Authorized User’s own personal use, or (b) the benefit of any third party. Company shall not allow anyone other than the Authorized Users to use the Applicable Software.
SCHEDULE FOR NUANCE MANAGEMENT SERVER FOR DRAGON MEDICAL NETWORK EDITION - ADMINISTRATOR LICENSE
The General Terms and Conditions and this Schedule for Nuance Management Server for Dragon Medical Network Edition - Administrator License (“Schedule”) apply to any Administrator License of the Applicable Software identified in an Order.
1. Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Administrator License” means a limited, non-exclusive, non-transferable, non-sublicensable license for Customer to allow a single Authorized User to: (i) use the web portal to the NMS component of the Applicable Software to set up Customer’s licensed users of Dragon Medical Network Edition Software, manage the user options, and perform maintenance tasks on the NMS; and (ii) use the Dragon Medical 360 Network Edition Software component of the Applicable Software for the sole purpose of testing - to support Customer’s licensed users of Dragon Medical Network Edition Software.
- “Applicable Software” means the Nuance Management Server for Dragon Medical Network Edition (NMS for DMNE) Software, which consists of the Nuance Management Server (NMS) Software and the Dragon Medical Network Edition (DMNE) Software.
- “Authorized User” means an individual (a) Customer employee, or (b) contractor who has a need to use the Applicable Software based upon a contractual relationship with Customer.
- “Device” means a personal computing device as specified in the accompanying Documentation.
- “Instance”. An “Instance” of the NMS component of the Applicable Software is created by installing NMS, or by duplicating an existing “Instance”. References to the NMS in this Schedule include “Instances” of the NMS.
2. Grant of Rights. Subject to the terms and conditions of the General Terms and Conditions, this Schedule and the applicable Order, Nuance hereby grants Customer an Administrator License, for each such license purchased (as indicated in the Order). For the avoidance of doubt, the Dragon Medical Network Edition Software component of the Applicable Software cannot be used for clinical dictation.
3. Right to Copy. Pursuant to the rights granted under Section 2 above, Customer may reproduce and install copies of the Dragon Medical Network Edition Software component of the Applicable Software on the number of Devices as is reasonably necessary to exercise its license rights under Section 2. All such copies must be true and complete copies (including intellectual property notices) and be made from media or files supplied by Nuance to Customer under the Agreement or from a network source if true and complete copies of such media or files supplied by Nuance are copied to the network source.
4.Requirements. As a requirement for the Administrator License, Customer must have a valid license of the Applicable Software.
Schedule For Dragon Medical One - User Licenses (ECW Customers)
The terms of this Schedule for Dragon Medical One - User Licenses (“Schedule”) apply to the Hosted Services and Client Software (as defined below) specified in an Order as being sold on a per user or Client subscription license basis. This Schedule forms part of the Nuance Healthcare Master Agreement between Nuance and Company (the “Agreement”) and becomes binding on Company when Company executes an order with Authorized Reseller ECW for the purchase of per user subscription licenses to the Hosted Service. In the event of a conflict between the General Terms and Conditions and the terms of this Schedule, the terms of this Schedule will prevail.
1. Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Authorized User” is as defined below in Section 2.1 of this Schedule.
- “Client Software” means the Nuance Software, if any, provided to Company, by Nuance, as part of the Hosted Services, as listed in the Applicable Order.
- “Fees” means the fees for the Hosted Services and Client Software, as set forth on the applicable Order.
- “First Productive Use” means the date upon which Nuance has electronically delivered a URL that provides access to Hosted Solution functionality to Company, thereby enabling Company to install and access the Hosted Solution.
- “Hosted Services” means the Dragon Medical One Software as a Service (SaaS) offering owned and operated by Nuance, and specified in an Order; which SaaS offering is made available to Company as a service via the Internet.
- “Hosted Solution” means the collective offering of the Hosted Services and the associated Client Software.
- “Healthcare Facility” means a hospital, physician office, outpatient center, surgical facility, or other facility delivering healthcare services, that is wholly owned or controlled by Company. For purposes of this definition, “control” means (i) the power to elect a majority of the directors of a corporation or similar officers of an entity, or (ii) the power by contract to operate or manage the day-to-day operations of a health care facility.
- “Payment Schedule” means the payment schedule set forth on the applicable Order.
- “Service Term” means the term for which Company is granted the rights to the Hosted Services and Client Software and the term for which Company commits to paying for the Hosted Service, which term is as specified in Section 6.1 of this Schedule.
2. Grant of Rights.
- 2.1 Hosted Services. Subject to the terms and conditions of the Agreement (including this Schedule), for each subscription to the Hosted Solution purchased (as indicated in the applicable Order), Nuance hereby grants Company, and Company accepts, a revocable, non-exclusive, non-transferable, limited right to allow a single employee, agent or contractor at a Healthcare Facility (such employee, agent or Contractor, an “Authorized User”) to remotely, via the Internet, access and use the Hosted Services during the Service Term from within the United State; provided such access and use is: (i) in a manner commensurate with the intended use of the Hosted Services (as prescribed by the Agreement and the Documentation), and (ii) solely for Company’s internal business purposes performed at a Healthcare Facility, and (iii) solely by an Authorized User at or on behalf of a Healthcare Facility.
- 2.2 Client Software. Subject to the terms and conditions of the Agreement (including this Schedule), Nuance hereby grants Company, and Company hereby accepts, a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to allow Authorized Users to use the Client Software, during the Service Term, for the sole and limited purpose of accessing and using the Hosted Services as per the rights granted in Section 2.1 of this Schedule; provided that such use is in a manner commensurate with the intended use of the Client Software (as prescribed by the applicable Documentation). Company may reproduce and install copies of the Client Software on as many personal computing devices of the types specified in the accompanying Documentation as is reasonably necessary to exercise its license rights under Section 2.2. All such copies must be true and complete copies (including intellectual property notices) and be made from media or files supplied by Nuance to Company under the Agreement or from a network source if true and complete copies of such media or files supplied by Nuance are copied to the network source.
- 2.3 Restrictions. Company shall not allow any Authorized User to access and use the Hosted Services or the Client Software for (a) the Authorized User’s own personal use, or (b) the benefit of any third party. Company shall not (i) allow anyone other than the Authorized Users to access or use the Hosted Services or the Client Software, or any components thereof, or (ii) interfere with or disrupt the integrity or performance of the Hosted Services.
3. Nuance Responsibilities.
- 3.1 Hosted Services. Nuance agrees to host, operate and maintain the equipment and software comprising its Hosted Services, and to allow Company to access and use the Hosted Services, during the Service Term, in accordance with the terms of the Agreement.
- 3.2 Support. During the Service Term, Nuance shall provide Company with support in accordance with the terms set forth in Exhibit 1 to this Schedule. From time to time Nuance may provide Company with Updates and Upgrades to the Client Software. Company will need to implement and deploy such Updates and Upgrades to authorized users within 12 months from Nuance’s release date. Nuance will support all versions of the Client Software (with ‘version’ defined as a release with an increment of 0.1 or higher) for a minimum of 12 months as follows: at each point in time, Nuance will support the current version and the immediately preceding version of the Client Software and any other version of the Client Software with a general release date within the preceding 12 months.
4. Company Responsibilities.
- 4.1 Project Manager. During installation and operation of the Hosted Solution, Company shall provide a qualified individual who will manage and monitor the installation and assist with any issues that may arise during routine operation of the Hosted Solution.
- 4.2 Equipment and Internet Connectivity. Company shall provide, at its own expense, telecommunications (including Internet connectivity), firewall, and all equipment and operating system software necessary for Authorized Users to access and use the Hosted Solution, as recommended in the Documentation. Nuance shall have no responsibility for any costs incurred in connection with modifications or enhancements to Company’s system necessary for implementing Company’s interface with the Hosted Services or in connection with Company’s use of the Hosted Services. The communications and network interoperability requirements for Internet access to the Hosted Services are as described in the Documentation.
5. Payment. Upon commencement of the Service Term, Authorized Reseller shall invoice Company for the Fees in accordance with the Payment Schedule and Company shall pay Authorized Reseller’s invoices in accordance with its contract with Authorized Reseller. If Company ceases to be a customer of Authorized Reseller’s products then Section 8 will apply.
6. Term and Termination.
- 6.1 Service Term. Subject to the right to terminate set forth in the Agreement, the initial Service Term shall be as set forth in the applicable Order. Thereafter, subject to the right to terminate set forth in the Agreement, the Service Term will automatically renew for successive one (1) year periods unless either party notifies the other party, in writing and at least ninety (90) days prior to the expiration of the then-current Service Term, of its decision not to renew the Service Term. The initial Service Term will commence upon First Productive Use or one hundred eighty (180) days following the date of the applicable Order, whichever occurs first. Each renewal Service Term, if applicable, will commence immediately following expiration of the prior Service Term. Upon expiration or termination of the applicable Order or the Agreement, by either party, the Service Term shall terminate.
- 6.2 Effect of Termination. Upon the expiration or termination of the Service Term, Company’s rights to access and use the Hosted Services, as well as Company’s rights to use the associated Client Software, will terminate. Neither the expiration nor termination of the Service Term shall affect Company’s payment obligations. If the Service Term is terminated prior to the completion of the then-current Service Term, other than by Company in accordance with the Agreement for Nuance’s uncured material breach, Company shall owe Authorized Reseller (for the benefit of Nuance and Authorized Reseller), a fee equal to the total amount of Fees that would have come due over the remainder of the then-current Service Term but for the early termination (“Early Termination Fee”). Authorized Reseller shall invoice Company, in full, for the Early Termination Fee following the date of termination of the Service Term. Company shall pay the Early Termination Fee to Authorized Reseller, or, if directed to do so in writing by Authorized Reseller, Company shall pay the Early Termination Fee (or the unpaid balance of the Early Termination Fee) directly to Nuance.
7. Company Loyalty Discounts for Dragon Medical. If Company receives a discount on a Hosted Service in exchange for surrendering or terminating previously purchased licenses of a Dragon Medical product (the “Legacy Licenses”), any Legacy Licenses that form the basis for that discount shall be listed on the Order. If an Order identifies Legacy Licenses, then upon execution of the Order, Company’s rights to the Legacy Licenses shall terminate automatically, Company shall immediately cease using, un-install, and return to Nuance or destroy, the Legacy Licenses and any copies thereof, and within thirty days certify to Nuance in writing that Company has done so. Any Maintenance Services for the Legacy Licenses shall also be terminated upon execution of the Order.
8. Assignment of Company’s Orders to Nuance if Company is no longer an ECW Customer. Customer hereby consents to ECW’s assignment of certain Orders from ECW to Nuance on the following terms. ECW may assign Customer’s Orders for the purchase of Dragon Medical One and other Nuance Hosted Services to Nuance (the “Services”) if Customer ceases to be a Customer of ECW as a result of Customer rightfully terminating all its orders and contracts with ECW with respect to all ECW and third party software, services and equipment other than Nuance products and services. Such an assignment will not terminate Customer’s Orders, this Agreement or Customer’s subscriptions to the Services. Nuance will notify Customer in writing if Nuance accepts assignment of an Order from ECW and Nuance will continue to provide the Services at the prices stated in Customer’s assigned Orders for the duration of Customer’s subscriptions to the Services (aka Service Term, Order Term or Subscription Term) as stated in the assigned Orders. However, effective as of the assignment date identified in Nuance’s notice, all other terms and conditions relating to the assigned Orders will cease to apply except the terms of Customer’s Healthcare Master Agreement with Nuance, all of which will remain or become applicable to the assigned Orders, including the payment terms in Section 6.2 of the Agreement. After Customer receives notice from Nuance of such an assignment, Customer will pay Nuance’s invoices for amounts due under the Orders for services provided after the effective date of the assignment. Customer will continue to pay ECW’s invoices for services provided before the effective date of assignment. Following assignment of an Order to Nuance, ECW will be and remain solely liable to Customer for any obligations or claims relating to that Order based on events and circumstances occurring before the assignment. At Nuance’s request following notice of assignment, Customer will issue a zero-dollar order to Nuance solely for accounting tracking purposes. Customer may require additional Professional Services or Training Services in connection with Customer’s use of a different EHR system and will order such directly from Nuance.
Support for Dragon Medical One
For purposes of this Exhibit, references to “Hosted Solutions,” “Hosted Services” and “Client Software” shall mean the Dragon Medical One Hosted Solutions, Hosted Services, and associated Client Software.
1.Error Correction. Nuance will make reasonable efforts to repair any errors which are reported either in writing or verbally by the contacts identified in Section 2 below. An error is defined as any operation of the Hosted Solution that is materially different than described in the Documentation. An error also includes a “bug” or “crash” in which the Hosted Solution or portions of the Hosted Solution cease to function.
2.Question and Answer Support. Nuance will provide question and answer support. These services are only offered to the Administrative Contact, the Technical Contact, and the Executive Contact or their designee. Nuance is not responsible for providing support services directly to transcriptionists or to physicians.
3.Service Hours. Nuance shall provide service and support from 8:30 am to 5:00 pm, Monday through Friday in Company time zones, excluding the following holidays: New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, and Christmas Day. Nuance shall provide seven days a week, 24-hour per day support for Emergency Events. An Emergency Event is defined as a problem that (a) prevents physicians from dictating reports; (b) prevents users from accessing the Hosted Services; (c) prevents multiple transcriptionists from transcribing or editing documents; (d) prevents the printing of documents or (e) prevents interface transactions (i.e., the transmission from or receipt of data by Company’s computer systems).
4. Company Contacts. Company shall identify an Administrative Contact, a Technical Contact and an Executive Contact. These individuals will communicate to Nuance about the services rendered hereunder and then will be responsible for communicating, as needed, with the staff at Company.
5. Third Party Products; Interoperability. Nuance support for the Hosted Services and Client Software does not include support for products of other vendors. Software residing on Company’s work stations (such as Word and Microsoft Operating Systems) is not covered by this Agreement. Upgrades and new releases of all such third-party software are not provided or maintained by Nuance and must be obtained separately by Company. Nuance cannot guarantee that all conflicts that may occur between the operation of the Client Software and third party software or between the operation of the Hosted Services and third party software can or will be resolved. In a Microsoft environment, it is possible that programs provided by other vendors (e.g. an email program), may conflict with the Client Software. Nuance does not agree to resolve any such conflicts, if they are discovered. For further information on program interoperability, see the Nuance documentation for the Hosted Services.
6. Adequate Training. Nuance does not give a specific limit on the amount of Question/Answer support that it will give, but assumes that the existing staff will be adequately trained. If, for a period of two consecutive weeks, Company calls Nuance persistently for question/answer support, and Company’s Administrative Contact and Technical Contact have not previously attended the appropriate Nuance training class, then Company agrees to send those individuals to the Nuance University classes at the then-standard rates, or, alternatively, meet with Nuance to review the situation. For the purposes of this Section, the term "persistently" shall mean multiple telephone calls with questions every day.
SCHEDULE for POWERMIC MOBILE - USER LICENSES (ECW Customers)
The terms of this Schedule for PowerMic Mobile - User Licenses (“Schedule”) apply to the PowerMic Mobile hosted service specified in an Order as being sold on a per user subscription license basis. This Schedule forms part of the Nuance Healthcare Master Agreement between Nuance and Company (the “Agreement”) and becomes binding on Company when Company executes an order with Authorized Reseller ECW for the purchase of per user subscription licenses to the Hosted Service. In the event of a conflict between the General Terms and Conditions of the Agreement and the terms of this Schedule, the terms of this Schedule will prevail.
1. Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Authorized User” means a single employee, agent or contractor at a Healthcare Facility
- “Client Software” means the Nuance Software, if any, that Nuance provides to Company as part of the Hosted Solution that is necessary for access to a Hosted Service.
- “Fees” means the fees for the Hosted Services as set forth on the applicable Order.
- “First Productive Use” means the date upon which Nuance has electronically delivered a URL that provides access to Hosted Solution functionality to Company, thereby enabling Company to install and access the Hosted Solution.
- “Hosted Services” means the following Software as a Service (SaaS) offerings owned and operated by Nuance, as specified in an Order, which is made available to Company as a service via the Internet: PowerMic Mobile.
- “Hosted Solution” means the collective offering of the Hosted Services and the associated Client Software.
- “Healthcare Facility” means a hospital, physician office, outpatient center, surgical facility, or other facility delivering healthcare services, that is wholly owned or controlled by Company. For purposes of this definition, “control” means (i) the power to elect a majority of the directors of a corporation or similar officers of an entity, or (ii) the power by contract to operate or manage the day-to-day operations of a health care facility.
- “Payment Schedule” means the payment schedule set forth on the applicable Order between Company and Authorized Reseller.
- “Service Term” means the term for which Company is granted the rights to the Hosted Solution and the term for which Company commits to paying for the Hosted Solution, which term is as specified in Section 6.1 of this Schedule.
- “Term License” means a license grant that is limited in duration, which duration is as indicated in the applicable Order, subject to early termination pursuant to the Agreement.
2. Grant of Rights.
- 2.1 Hosted Services. Subject to the terms and conditions of the Agreement (including this Schedule), for each subscription to each Hosted Service purchased (as indicated in the applicable Order), Nuance hereby grants Company, and Company accepts, a revocable, non-exclusive, non-transferable, limited right to allow a single Authorized User to remotely, via the Internet, access and use the Hosted Service during the Service Term solely from within the United States (unless otherwise authorized by Nuance in writing); provided such access and use is: (i) in a manner commensurate with the intended use of the Hosted Services (as prescribed by the Agreement and the Documentation), and (ii) solely for Company’s internal business purposes performed at a Healthcare Facility. The PowerMic Mobile hosted service is licensed under this Schedule for use only in conjunction with a valid subscription to Nuance’s Dragon Medical One hosted service or a valid license to Nuance’s Dragon Medical Network Edition software, which must be purchased separately.
- 2.2 Client Software. Subject to the terms and conditions of the Agreement (including this Schedule), Nuance hereby grants Company, and Company hereby accepts, a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to allow Authorized Users to use the Client Software during the Service Term for the sole and limited purpose of accessing and using the Hosted Service as per the rights granted in Section 2.1 of this Schedule; provided that such use is in a manner commensurate with the intended use of the Client Software (as prescribed by the applicable Documentation). Company may reproduce and install copies of the Client Software on as many personal computing devices of the types specified in the accompanying Documentation as is reasonably necessary to exercise its license rights under Section 2.2. All such copies must be true and complete copies (including intellectual property notices) and be made from media or files supplied by Nuance to Company under the Agreement or from a network source if true and complete copies of such media or files supplied by Nuance are copied to the network source.
- 2.3 Restrictions. Company shall not allow any Authorized User to access and use the Hosted Services or the Client Software for (a) the Authorized User’s own personal use, or (b) the benefit of any third party. Company shall not (i) allow anyone other than the Authorized Users to access or use the Hosted Services or the Client Software, or any components thereof, or (ii) interfere with or disrupt the integrity or performance of the Hosted Services.
3. Nuance Responsibilities.
- 3.1 Hosted Services. Nuance agrees to host, operate and maintain the equipment and software comprising its Hosted Service, and to allow Company to access and use the Hosted Service, during the Service Term, in accordance with the terms and conditions of the Agreement.
- 3.2 Support. During the Service Term, Nuance will provide Company with support for the Hosted Service in accordance with the terms and conditions set forth in Exhibit 1 to this Schedule. From time to time Nuance may provide Company with Updates and Upgrades to the Client Software. Company will need to implement and deploy such Updates and Upgrades to authorized users within 12 months from Nuance’s release date. Nuance will support all versions of the Client Software (with ‘version’ defined as a release with an increment of 0.1 or higher) for a minimum of 12 months as follows: Nuance will support the current version and the immediately preceding of the Client Software; in addition, at any point in time Nuance will also support any version with a general release date within the preceding 12 months.
4. Company Responsibilities.
- 4.1 Project Manager. During installation and operation of the Hosted Solution, Company shall provide a qualified individual who will manage and monitor the installation and assist with any issues that may arise during routine operation of the Hosted Solution.
- 4.2 Equipment and Internet Connectivity. Company shall provide, at its own expense, telecommunications (including Internet connectivity), firewall, and all equipment and operating system software necessary for Authorized Users to access and use the Hosted Solution, as recommended in the Documentation. Nuance shall have no responsibility for any costs incurred in connection with modifications or enhancements to Company’s system necessary to implement Company’s interface with the Hosted Services or in connection with Company’s use of the Hosted Services. Nuance will not be responsible for fees billed by Company’s or an Authorized User’s mobile operator for use of the wireless or cellular networks necessary to send and receive data from the Hosted Service.The communications and network interoperability requirements for Internet access to the Hosted Services are described in the Documentation.
5. Payment. Upon commencement of the Service Term, Authorized Reseller shall invoice Company for the Fees in accordance with the Payment Schedule and Company shall pay Authorized Reseller’s invoices in accordance with its contract with Authorized Reseller. If Company ceases to be a customer of Authorized Reseller’s products then Section 7 will apply.
Term and Termination.
- 6.1 Service Term. Subject to the right to terminate as set forth in the Agreement, the initial Service Term shall be as set forth in the applicable Order (and may be identified in the Order as the Service Term, the Order Term, the License Term or other similar designation of the subscription license duration). Thereafter, subject to the right to terminate as set forth in the Agreement, the Service Term will automatically renew for successive one (1) year periods unless either party notifies the other party, in writing and at least ninety (90) days prior to the expiration of the then-current Service Term, of its decision not to renew the Service Term. The initial Service Term will commence upon First Productive Use or one hundred eighty (180) days following the date of the applicable Order, whichever occurs first. Each renewal Service Term, if applicable, will commence immediately following expiration of the prior Service Term. The Service Term shall terminate automatically upon termination or expiration of Company’s Dragon Medical One Hosted Service subscription or Company’s Dragon Medical Network Edition license, whichever PowerMic Mobile was purchased for use with, or upon expiration or termination of the applicable Order or the Agreement
- 6.2 Effect of Termination. Upon the expiration or termination of the Service Term, Company’s rights to access and use the Hosted Services, as well as Company’s rights to use the associated Client Software, will terminate. Neither the expiration nor termination of the Service Term shall affect Company’s payment obligations. If the Service Term is terminated prior to the completion of the then-current Service Term, other than by Company in accordance with the Agreement for Nuance’s uncured material breach, Company shall pay Nuance a fee equal to the total amount of Fees that would have come due over the remainder of the then-current Service Term but for the early termination (“Early Termination Fee”). Nuance shall invoice Company, in full, for the Early Termination Fee following the date of termination of the Service Term.
7. Assignment of Company’s Orders to Nuance if Company is no longer an ECW Customer. Customer hereby consents to ECW’s assignment of certain Orders from ECW to Nuance on the following terms. ECW may assign Customer’s Orders for the purchase of PowerMic Mobile and other Nuance Hosted Services to Nuance (the “Services”) if Customer ceases to be a Customer of ECW as a result of Customer rightfully terminating all its orders and contracts with ECW with respect to all ECW and third party software, services and equipment other than Nuance products and services. Such an assignment will not terminate Customer’s Orders, this Agreement or Customer’s subscriptions to the Services. Nuance will notify Customer in writing if Nuance accepts assignment of an Order from ECW and Nuance will continue to provide the Services at the prices stated in Customer’s assigned Orders for the duration of Customer’s subscriptions to the Services (aka Service Term, Order Term or Subscription Term) as stated in the assigned Orders. However, effective as of the assignment date identified in Nuance’s notice, all other terms and conditions relating to the assigned Orders will cease to apply except the terms of Customer’s Healthcare Master Agreement with Nuance, all of which will remain or become applicable to the assigned Orders, including the payment terms in Section 6.2 of the Agreement. After Customer receives notice from Nuance of such an assignment, Customer will pay Nuance’s invoices for amounts due under the Orders for services provided after the effective date of the assignment. Customer will continue to pay ECW’s invoices for services provided before the effective date of assignment. Following assignment of an Order to Nuance, ECW will be and remain solely liable to Customer for any obligations or claims relating to that Order based on events and circumstances occurring before the assignment. At Nuance’s request following notice of assignment, Customer will issue a zero-dollar order to Nuance solely for accounting tracking purposes. Customer may require additional Professional Services or Training Services in connection with Customer’s use of a different EHR system and will order such directly from Nuance.
Support for PowerMic Mobile
For purposes of this Exhibit, references to “Hosted Solution,” “Hosted Service” and “Client Software” means the PowerMic Mobile Hosted Solution, Hosted Service, and associated Client Software.
a. Error Correction. Nuance shall make reasonable efforts to repair any errors that are reported either in writing or verbally by Company’s Support Contacts (as defined below in Section 2). An error is defined as any operation of the Hosted Solution that is materially different than described in the Documentation. An error also includes a “bug” or “crash” in which the Hosted Solution or portions of the Hosted Solution cease to function.
b. Company Contacts; Question and Answer Support. Company must identify an Administrative Contact, a Technical Contact and an Executive Contact. These individuals must communicate to Nuance about the services rendered hereunder and then will be responsible for communicating, as needed, with Company staff. Nuance will provide question and answer support only to the Administrative Contact, the Technical Contact, and the Executive Contact or their designee. Nuance is not responsible for providing support services directly to transcriptionists or to clinicians. Nuance does not designate a specific limit on the Question/Answer support that it provides, but rather assumes that the existing staff will be adequately trained. However, if over a period of two consecutive weeks, a Company contact persistently calls Nuance for question/answer support, and such Company contact has not attended the appropriate Nuance training classes, then Company agrees to either send the contact(s) to Nuance University classes at Nuance’s then-standard rates, or, alternatively, meet with Nuance to review the situation. For the purposes of this Section, the term "persistently" shall mean multiple telephone calls with questions every day.
c. Service Hours. Nuance shall provide service/support from 8:30 am to 5:00 pm, Monday through Friday in Company time zones, excluding the following holidays: New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, and Christmas Day. Nuance shall provide seven days a week, 24-hour per day support for Emergency Events. An Emergency Event is defined as a problem that (a) prevents clinicians from dictating reports; (b) prevents users from accessing the Hosted Solution; (c) prevents multiple transcriptionists from transcribing or editing documents; (d) prevents the printing of documents or (e) prevents interface transactions (i.e., the transmission from or receipt of data by Company’s computer systems).
d. Third Party Products; Interoperability. Nuance support for the Hosted Services and Client Software does not include support for products of other vendors. Software residing on Company’s work stations (such as Word and Microsoft Operating Systems) is not covered by this Agreement. Upgrades and new releases of all such third-party software are not provided or maintained by Nuance and must be obtained separately by Company. Nuance cannot guarantee that all conflicts that may occur between the operation of the Client Software and third party software or between the operation of the Hosted Services and third party software can or will be resolved. In a Microsoft environment, it is possible that programs provided by other vendors (e.g. an email program), may conflict with the Client Software. Nuance does not agree to resolve any such conflicts, if they are discovered. For further information on program interoperability, see the Nuance documentation for the Hosted Services.
SCHEDULE for DRAGON MEDICAL ONE AND POWERMIC MOBILE - USER LICENSES with Pilot License Option (fka Dragon Medical Direct)
The terms of this Schedule for Dragon Medical One and PowerMic Mobile - User Licenses (with Pilot License Option) (“Schedule”) apply to the Dragon Medical One Hosted Solution (and the prior release branded as Dragon Medical Direct) and the PowerMic Mobile Hosted Solution (as further defined below) when specified in an Order as licensed on per user basis. This Schedule forms part of the Nuance Healthcare Master Agreement between Nuance and Company (the “Agreement”) and becomes binding on Company when Company executes an order with an Authorized Reseller for the purchase of one or more user licenses for either or both Hosted Solutions. In the event of a conflict between the General Terms and Conditions of the Agreement and the terms of this Schedule, the terms of this Schedule will prevail.
Definitions. For purposes of this Schedule, the following terms shall have the following meanings:
- “Authorized User” means a single employee, agent or contractor at a Healthcare Facility
- “Client Software” means the Nuance Software if any, that Nuance provides to Company as part of the Hosted Solution that is necessary for access to a Hosted Service.
- “Fees” means the fees for the Hosted Solution as set forth on the applicable Order.
- “First Productive Use” means the date upon which Nuance has electronically delivered a URL that provides access to Hosted Solution functionality to Company, thereby enabling Company to install and access the Hosted Solution.
- “Hosted Services” means the following Software as a Service (SaaS) offerings owned and operated by Nuance, as specified in an Order, which are made available to Company as a service via the Internet: Dragon Medical One and PowerMic Mobile.
- “Hosted Solution” means the collective offering of the Hosted Services and the associated Client Software.
- “Healthcare Facility” means a hospital, physician office, outpatient center, surgical facility, or other facility delivering healthcare services, that is wholly owned or controlled by Company. For purposes of this definition, “control” means (i) the power to elect a majority of the directors of a corporation or similar officers of an entity, or (ii) the power by contract to operate or manage the day-to-day operations of a health care facility.
- “Payment Schedule” means the payment schedule set forth on the applicable Order between Company and Authorized Reseller.
- “Pilot License” means a subscription license to a Hosted Solution granted under this Schedule that is identified in the Order as a Pilot License.
- “Pilot Term” means the Service Term for Pilot Licenses as further defined in Section 8.
- “Service Term” means the term for which Company is granted the rights to the Hosted Solution(s) identified in an Order and the term for which Company commits to paying for such Hosted Solution(s), which term is as specified in Section 6.1 of this Schedule.
2. Grant of Rights.
- 2.1 Hosted Services. Subject to the terms and conditions of the Agreement (including this Schedule), for each subscription to each Hosted Service purchased (as indicated in the applicable Order), Nuance hereby grants Company, and Company accepts, a revocable, non-exclusive, non-transferable, limited right to allow a single Authorized User to remotely, via the Internet, access and use the Hosted Services during the Service Term solely from within the United States (unless otherwise authorized by Nuance in writing); provided such access and use is: (i) in a manner commensurate with the intended use of the Hosted Services (as prescribed by the Agreement and the Documentation), and (ii) solely for Company’s internal business purposes performed at a Healthcare Facility. Subscription licenses to PowerMic Mobile and Dragon Medical One must be purchased separately; the PowerMic Mobile hosted service is licensed under this Schedule for use only in conjunction with a valid subscription to the Dragon Medical One hosted service.
- 2.2 Client Software. Subject to the terms and conditions of the Agreement (including this Schedule), Nuance hereby grants Company, and Company hereby accepts, a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to allow Authorized Users to use the Client Software, during the Service Term, for the sole and limited purpose of accessing and using the Hosted Services as per the rights granted in Section 2.1 of this Schedule; provided that such use is in a manner commensurate with the intended use of the Client Software (as prescribed by the applicable Documentation). Company may reproduce and install copies of the Client Software on as many personal computing devices of the types specified in the accompanying Documentation as is reasonably necessary to exercise its license rights under Section 2.2. All such copies must be true and complete copies (including intellectual property notices) and be made from media or files supplied by Nuance to Company under the Agreement or from a network source if true and complete copies of such media or files supplied by Nuance are copied to the network source.
- 2.3 Restrictions. Company shall not allow any Authorized User to access and use the Hosted Services or the Client Software for (a) the Authorized User’s own personal use, or (b) the benefit of any third party. Company shall not (i) allow anyone other than the Authorized Users to access or use the Hosted Services or the Client Software, or any components thereof, or (ii) interfere with or disrupt the integrity or performance of the Hosted Services.
3. Nuance Responsibilities.
- 3.1 Hosted Services. Nuance agrees to host, operate and maintain the equipment and software comprising its Hosted Services, and to allow Company to access and use the Hosted Services, during the Service Term, in accordance with the terms and conditions of the Agreement.
- 3.2 Support. During the Service Term, Nuance will provide Company with support in accordance with the terms and conditions set forth in Exhibit 1 to this Schedule. From time to time Nuance may provide Company with Updates and Upgrades to the Client Software. Company will need to implement and deploy such Updates and Upgrades to authorized users within 12 months from Nuance’s release date. Nuance will support all versions of the Client Software (with ‘version’ defined as a release with an increment of 0.1 or higher) for a minimum of 12 months as follows: Nuance will support the current version and the immediately preceding of the Client Software; in addition, at any point in time Nuance will also support any version with a general release date within the preceding 12 months.
4. Company Responsibilities.
- 4.1 Project Manager. During installation and operation of the Hosted Solution, Company shall provide a qualified individual who will manage and monitor the installation and assist with any issues that may arise during routine operation of the Hosted Solution.
- 4.2 Equipment and Internet Connectivity. Company shall provide, at its own expense, telecommunications (including Internet connectivity), firewall, and all equipment and operating system software necessary for Authorized Users to access and use the Hosted Solution, as recommended in the Documentation. Nuance shall have no responsibility for any costs incurred in connection with modifications or enhancements to Company’s system necessary to implement Company’s interface with the Hosted Services or in connection with Company’s use of the Hosted Services. Nuance will not be responsible for fees billed by Company’s or an Authorized User’s mobile operator for use of the wireless or cellular networks necessary to send and receive data from the Hosted Service. The communications and network interoperability requirements for Internet access to the Hosted Services are described in the Documentation.
5. Payment. Upon commencement of the Service Term, Authorized Reseller will invoice Company for the Fees in accordance with the Payment Schedule and Company shall pay Authorized Reseller’s invoices in accordance with its contract with Authorized Reseller. If Company ceases to be a customer of Authorized Reseller’s products then Section 9 will apply.
6. Term and Termination.
- 6.1 Service Term. Subject to the right to terminate as set forth in the Agreement, the initial Service Term shall be as set forth in the applicable Order (which may be identified in the Order as the Service Term, the Order Term, the License Term or other similar designation of the subscription license duration). Thereafter, subject to the right to terminate as set forth in the Agreement, the Service Term (except for Pilot Terms) will automatically renew for successive one (1) year periods unless either party notifies the other party, in writing and at least ninety (90) days prior to the expiration of the then-current Service Term, of its decision not to renew the Service Term. The initial Service Term will commence upon First Productive Use or one hundred eighty (180) days following the date of the applicable Order, whichever occurs first, except with respect to Pilot licenses, in which case the Service Terms start date is defined in Section 8. Each renewal Service Term, if applicable, will commence immediately following expiration of the prior Service Term. Upon expiration or termination of the applicable Order or the Agreement, by either party, the Service Term shall terminate.
- 6.2 Effect of Termination. Upon the expiration or termination of the Service Term, Company’s rights to access and use the Hosted Services, as well as Company’s rights to use the associated Client Software, will terminate. Neither the expiration nor termination of the Service Term shall affect Company’s payment obligations. If the Service Term is terminated prior to the completion of the then-current Service Term, other than by Company in accordance with the Agreement for Nuance’s uncured material breach, Company shall pay Nuance a fee equal to the total amount of Fees that would have come due over the remainder of the then-current Service Term but for the early termination (“Early Termination Fee”). Nuance shall invoice Company, in full, for the Early Termination Fee following the date of termination of the Service Term.
7.Company Loyalty Discounts for Dragon Medical. If Company receives a discount on a Hosted Service in exchange for surrendering or terminating previously purchased licenses of a Dragon Medical product (the “Legacy Licenses”), any Legacy Licenses that form the basis for that discount shall be listed on the Order. If an Order identifies Legacy Licenses, then upon execution of the Order, Company’s rights to the Legacy Licenses shall terminate automatically, Company shall immediately cease using, un-install, and return to Nuance or destroy, the Legacy Licenses and any copies thereof, and within thirty days certify to Nuance in writing that Company has done so. Any Maintenance Services for the Legacy Licenses shall also be terminated upon execution of the Order.
8.Pilot License Terms.If Company purchases Dragon Medical One or PowerMic Mobile User Licenses identified as Pilot Licenses on the applicable Order, then the Service Term will begin on First Productive Use which will be scheduled by Nuance to be the project kickoff meeting date (being the date on which the first meeting occurs between the Nuance project manager and Company) or other date determined by Nuance and shall continue for 30 days thereafter, or for the duration of any longer or shorter Service Term stated in the Order (the “Pilot Term”). Notwithstanding Section 6.1, a Pilot Term will not automatically renew and may only be extended by a new or amended Order. ANY PROFILE OR PERSONALIZATION DATA THAT COMPANY ENTERS INTO THE HOSTED SOLUTION(S), AND ANY CUSTOMIZATIONS MADE TO THE HOSTED SOLUTION(S) BY OR FOR COMPANY DURING THE PILOT PERIOD WILL BE PERMANENTLY LOST UNLESS COMPANY PURCHASES A SUBSCRIPTION TO THE SAME HOSTED SOLUTION(S) AS THOSE INDICATED IN THE PILOT ORDER, OR EXPORTS SUCH PROFILE OR PERSONALIZATION DATA, WITHIN SIXTY (60) DAYS OF THE SERVICE TERM END, UNLESS OTHERWISE AGREED TO BY THE PARTIES. If after the Service Term ends, Company purchases standard term User Licenses to the Hosted Solution, the terms of this Schedule will continue to apply to such licenses unless a different applicable Schedule is identified in the End User Order with the Authorized Reseller.
9.Assignment of Company’s Orders to Nuance if Company is no longer an ECW Customer. Customer hereby consents to ECW’s assignment of certain Orders from ECW to Nuance on the following terms. ECW may assign Customer’s Orders for the purchase of Dragon Medical One, PowerMic Mobile and other Nuance Hosted Services to Nuance (the “Services”) if Customer ceases to be a Customer of ECW as a result of Customer rightfully terminating all its orders and contracts with ECW with respect to all ECW and third party software, services and equipment other than Nuance products and services. Such an assignment will not terminate Customer’s Orders, this Agreement or Customer’s subscriptions to the Services. Nuance will notify Customer in writing if Nuance accepts assignment of an Order from ECW and Nuance will continue to provide the Services at the prices stated in Customer’s assigned Orders for the duration of Customer’s subscriptions to the Services (aka Service Term, Order Term or Subscription Term) as stated in the assigned Orders. However, effective as of the assignment date identified in Nuance’s notice, all other terms and conditions relating to the assigned Orders will cease to apply except the terms of Customer’s Healthcare Master Agreement with Nuance, all of which will remain or become applicable to the assigned Orders, including the payment terms in Section 6.2 of the Agreement. After Customer receives notice from Nuance of such an assignment, Customer will pay Nuance’s invoices for amounts due under the Orders for services provided after the effective date of the assignment. Customer will continue to pay ECW’s invoices for services provided before the effective date of assignment. Following assignment of an Order to Nuance, ECW will be and remain solely liable to Customer for any obligations or claims relating to that Order based on events and circumstances occurring before the assignment. At Nuance’s request following notice of assignment, Customer will issue a zero-dollar order to Nuance solely for accounting tracking purposes. Customer may require additional Professional Services or Training Services in connection with Customer’s use of a different EHR system and will order such directly from Nuance.
Support for Dragon Medical One and PowerMic Mobile
For purposes of this Exhibit, references to “Hosted Solutions,” “Hosted Services” and “Client Software” shall mean the Dragon Medical One and PowerMic Mobile Hosted Solutions, Hosted Services, and associated Client Software.
a.Error Correction. Nuance shall make reasonable efforts to repair any errors that are reported either in writing or verbally by Company’s Support Contacts (as defined below in Section 2). An error is defined as any operation of the Hosted Solution that is materially different than described in the Documentation. An error also includes a “bug” or “crash” in which the Hosted Solution or portions of the Hosted Solution cease to function.
b.Company Contacts; Question and Answer Support. Company must identify an Administrative Contact, a Technical Contact and an Executive Contact. These individuals must communicate to Nuance about the services rendered hereunder and then will be responsible for communicating, as needed, with Company staff. Nuance will provide question and answer support only to the Administrative Contact, the Technical Contact, and the Executive Contact or their designee. Nuance is not responsible for providing support services directly to transcriptionists or to clinicians. Nuance does not designate a specific limit on the Question/Answer support that it provides, but rather assumes that the existing staff will be adequately trained. However, if over a period of two consecutive weeks, a Company contact persistently calls Nuance for question/answer support, and such Company contact has not attended the appropriate Nuance training classes, then Company agrees to either send the contact(s) to Nuance University classes at Nuance’s then-standard rates, or, alternatively, meet with Nuance to review the situation. For the purposes of this Section, the term "persistently" shall mean multiple telephone calls with questions every day.
c.Service Hours. Nuance shall provide service/support from 8:30 am to 5:00 pm, Monday through Friday in Company time zones, excluding the following holidays: New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, and Christmas Day. Nuance shall provide seven days a week, 24-hour per day support for Emergency Events. An Emergency Event is defined as a problem that (a) prevents clinicians from dictating reports; (b) prevents users from accessing the Hosted Solution; (c) prevents multiple transcriptionists from transcribing or editing documents; (d) prevents the printing of documents or (e) prevents interface transactions (i.e., the transmission from or receipt of data by Company’s computer systems).
d.Third Party Products; Interoperability. Nuance support for the Hosted Services and Client Software does not include support for products of other vendors. Software residing on Company’s work stations (such as Word and Microsoft Operating Systems) is not covered by this Agreement. Upgrades and new releases of all such third-party software are not provided or maintained by Nuance and must be obtained separately by Company. Nuance cannot guarantee that all conflicts that may occur between the operation of the Client Software and third party software or between the operation of the Hosted Services and third party software can or will be resolved. In a Microsoft environment, it is possible that programs provided by other vendors (e.g. an email program), may conflict with the Client Software. Nuance does not agree to resolve any such conflicts, if they are discovered. For further information on program interoperability, see the Nuance documentation for the Hosted Services.
Exhibit C
Terms of Service
The rights provided to the Nuance Licensed Software and Hosted Services are (a) non-exclusive and non-transferrable, and (b) solely for the applicable End Customer’s internal business operations; and require the End Customer to be responsible for its employees’, agents’, and contractors’ (i) access and use of the Nuance Licensed Software and Hosted Services, and (ii) compliance with the End User Agreement.
The use of Nuance Licensed Software is restricted to use solely as incorporated within the Nuance Application and for the sole and limited purpose of accessing the Hosted Services.
Nuance retains all right, title, interest, and ownership (including, without limitation, all intellectual property rights) in and to the Nuance Licensed Software and the Hosted Services, as well as the Hosted Network and the Hosted Services Infrastructure.
End Customer is prohibited from (a) assigning, selling, leasing, licensing, sublicensing, copying, marketing, distributing, or transferring the Nuance Licensed Software and/or Hosted Services, in whole or in part, to another individual or entity; (b) modifying, translating, or creating derivative works of the Nuance Licensed Software and/or Hosted Services; (c) the removal or modification of any markings or any notice of Nuance’s or its licensors’ proprietary rights; (d) the decomplication, disassembly, or reverse engineering of the Nuance Licensed Software and/or Hosted Services, or otherwise attempting to derive, reconstruct, identify, or discover any source code, underlying ideas, or algorithms of the Nuance Licensed Software or Hosted Services by any means; (e) the release to any third party the results of any benchmark testing of the Nuance Licensed Software and/or Hosted Services; and (f) knowingly taking any action that would cause the Application or Nuance Licensed Software to be placed in the public domain.
Nuance Licensed Software must be returned or destroyed upon the expiration or termination of the Agreement with End Customer.
The Nuance Licensed Software and Hosted Services may contain a copy of the Speex codec in executable form, and that use of the Speex codec is subject to the conditions and disclaimers listed in revised BSD license found at http://www.xiph.org/licenses/bsd/speex/. © 2002-2003, Jean-Marc Valin/Xiph.Org Foundation.
(a) Speech recognition, natural language processing, and medical fact extraction are statistical processes, and inaccuracies are inherent in such processes, and output from products and services employing such processes, and that Nuance Licensed Software and Hosted Services employ one or more such processes; (b) that End Customer acknowledges that inaccuracies are inevitable, and agrees that it is the sole responsibility of End Customer and its Authorized Users to identify and correct any inaccuracies and errors before using and/or relying on the results of the use of the Nuance Licensed Software and/or Hosted Services provided under the End User Agreement; and (c) End Customer shall indemnify Nuance, and hold it harmless, from and against all liabilities, losses, costs, damages, claims, and expenses arising out of, or related to, any claims or suits brought or made against Nuance by reason of, or arising from any allegation that the use by End Customer, any of its Authorized Users, of the Nuance Licensed Software and/or Hosted Services directly or indirectly caused or contributed to the wrongful death or personal injury of a third party to whom End Customer or its Authorized User offered or provided medical-related services.
NUANCE AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONIDTIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
NUANCE DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUANCE’S (AND ITS LICENSORS’) LIABILITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA OR DATA USE, BUSINESS INTERRUPTION, COST OF COVER OR DELAY, OR DAMAGE TO BUSINESS REPUTATION) ARISING FROM OR RELATE TO THE NUANCE LICENSED SOFTWARE, HOSTED SERVICES, HOSTED NETWORK, AND/OR HOSTED SERVICES INFRASTRUCTURE, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN CONTRACT, TORT, OR OTHERWISE.
(a) Nuance will collect Data as part of the Hosted Services; (b) Nuance and third parties acting under the direction of Nuance pursuant to confidentiality obligation shave the right to use, compile (including creating statistical and other models), annotate and otherwise analyze the Data to develop and improve Nuance’s products and services; (c) Nuance has the right to de-identify the Data in accordance with 45 C.F.R. 164.514 [to the extent Data contains any patient health information (“PHI”), the inclusion of such PHI in the Data shall not reduce any of Nuance’s obligations with respect to such PHI]; (d) to the extent any Data is compiled or used by Nuance in or with any Nuance product or service, all intellectual property rights in such product or service shall be owned by Nuance; (e) in the event that Data consists of or contains personal data of End Customer’s customers, End Customer shall obtain from its customers the necessary consents in order for Nuance to use the Data in accordance herewith, and End Customer hereby consents to retention and use of the Data as provided in this section; and (f) End Customer shall hold Nuance harmless against any claim based on a lack of consent to carry out the activities set out in this section. “Data” means the audio files, associated transcripts or medical reports (whether in draft or final form), and any other information received by Nuance from eClinicalWorks or any End Customer under this Agreement.
Third-party trademarks, trade names, product names, and logos (the ‘Trademarks”) contained in or used by the Application or Hosted Services are the trademarks or registered trademarks of their respective owners, and the use of such Trademarks shall inure to the benefit of the trademark owner. The use of such Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by Company and its licensors with such company, or (ii) an endorsement or approval of such company of eClinicalWorks and its licensors and its products or services.
Addendum for PDFTron
This Addendum to the License Agreement between eClinicalWorks, LLC, and Customer (the entity that has licensed the eClinicalWorks software and services) would make additional software and/or services available to Customer and constitutes a binding agreement between eClinicalWorks and Customer. The relationship between eClinicalWorks and Customer will continue to be subject to the License Agreement, each Terms of Use, this Addendum, and any other addenda to which eClinicalWorks and Customer have agreed.
| Company providing product | PDFTron Systems Inc. (“PDFTron”) is the company providing this product. Customer hereby agrees to PDFTron’s Terms of Use in Exhibit A. |
| Functionality | Customer desires to add connectivity to PDFTron’s services. |
| Indemnification | Customer hereby agrees to indemnify, defend, and hold eClinicalWorks and its affiliates harmless from any loss, claim, damage, cost, or expense arising out of or in connection with this Addendum. |
| Limitation of Liability | ECLINICALWORKS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER WITH RESPECT TO THIS ADDENDUM, AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. |
| ECLINICALWORKS’ LIABILITY TO CUSTOMER FOR ANY LOSSES OR DAMAGES, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS ADDENDUM SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND SERVICES GIVING RISE TO THE LIABILITY OVER THE PERIOD OF MONTHS IN WHICH LIABILITY OCCURRED AND THIS PERIOD SHALL NOT EXCEED TWELVE (12) MONTHS. |
Exhibit A
PDFTron’s Terms of Use
1. Definitions:
- a.“Intellectual Property Rights” means patents, patent rights and registrations and applications, renewals and extensions therefor, copyright (including, but not limited to, ownership rights in all computer code, concepts, and methods of operation, moral rights and any related documentation), copyright registration and applications, renewals and extensions therefore, trademark registrations and applications, renewals and extensions therefore, utility model or industrial design registrations and applications, renewals and extensions therefore, trade secrets and other intellectual property rights recognized by laws in Canada and applicable foreign and international laws , treaties and conventions.
- b.“Licensor” means PDFTron Systems Inc.
- c.“Object Code” means computer programming code assembled or compiled in magnetic or electronic binary form, which is readable and usable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering.
- d."Software” means the Object Code for the services PDFTron is providing.
- e.“Use” means to access, install, download, or otherwise benefit from using the functionality of the Software.
2. Customer:
- a. will Use the Software only as an integral component of the services PDFTron is providing;
- b. will not Use the Software for development, compilation, debugging, and similar design-time purposes;
- c. will not reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock, or otherwise attempt to discover the source code or underlying algorithms of the Software or attempt to do any of the foregoing in relation to the Object Code of the Software; and
- d. will not modify, adapt, translate, or create any derivative works of the Software or merge the Software into any other software.
3. The Customer will only Use, copy, modify, or transfer the Software, or any copy, adaptation, transcription, or merged portion thereof, as expressly permitted herein by the Licensor. The Customer’s rights will be non-exclusive and non-assignable.
4. Licensor will have the exclusive ownership of all right, title, and interest in and to the software licensed to the Customer, including ownership of all the Intellectual Property Rights and confidential information pertaining thereto, subject only to the express rights and privileges expressly granted to the Customer under this Addendum.
5. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND. ALL IMPLIED WARRANTIES ARE EXCLUDED (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, SUITABILITY FOR CUSTOMER’S REQUIREMENTS OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE) EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. THE LICENSOR DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE ERROR-FREE OR THAT USE OF THE SOFTWARE WILL MEET THE CUSTOMER’S NEEDS. THE CUSTOMER REPRESENTS THAT (A) IT HAS THE REQUISITE EXPERTISE TO EVALUATE THE SUITABILITY OF THE SOFTWARE AND THAT THE CUSTOMER HAS IN FACT UNDERTAKEN ITS OWN INVESTIGATION OF THE SUITABILITY OF THE SOFTWARE FOR THE CUSTOMER’S PURPOSES; AND (B) IT HAS RELIED UPON ITS OWN SKILL AND JUDGEMENT IN SELECTING THE SOFTWARE FOR THE CUSTOMER’S PURPOSES.
