Read these Terms and Conditions Agreement (this "Agreement") carefully before continuing registration. By accepting this Agreement, either by accessing or using a Product, or authorizing or permitting any Agent or End-User to access or use a Product, you agree to follow and be bound by the terms and conditions of this agreement. If you are entering into this agreement on behalf of a company or other legal entity (an “Entity”), you represent that you have the authority to bind such Entity to the terms and conditions of this agreement and, in such event, “Subscriber”, "You", "Your" and "User" as used in this agreement shall refer to such Entity. If You do not have such authority, or if You do not agree to all the terms and conditions in this agreement, You must not accept this Agreement and may not use any of the Product.
Think Health, Inc. | Terms and Conditions Agreement | v.4 20171110
When used in this Agreement with the initial letters capitalized or quotation marks, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account” means any accounts or instances created by or on behalf of Subscriber within the Product. “Effective Date” means the date of the Agreement at which the Subscriber accepts these terms while signing up and signing in the online or mobile application.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity, where "control" (and its variants, including "controls," "controlled by," and "under common control with") means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement’ means the Terms & Conditions Agreement together with any and all Supplements, Additional Terms.
“API” means the application programming interfaces developed and enabled by the Company that permit Subscribers to access certain functionality provided by the Products, including, without limitation, the REST API that enables the interaction with the Products automatically through HTTP requests and the application development API that enables the integration of the Products with other web applications.
“Beta Version” means a Product, service or functionality provided by the Company that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-Production, early access, evaluation or by a similar description.
“Billing Page” means any of Our generated Product billing pages executed or approved by You with respect to OrdeYour subscription to a Product, which the Billing Page may detail, among other things, the number of Users authorized to use a Product under Your subscription to a Product and the Subscription Plan applicable to Your subscription to a Product.
“Confidential Information” means all information disclosed by You to the Company or by the Company to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to the Company’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Personal Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
"Personal Data" means all electronic data or information submitted by Subscriber, User, End-User, Client, or Client Family to the Product. That also includes any information relating to the Client, an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
“End-User” means any person or entity other than Subscriber or Users with whom Subscriber or its Users interact using a Product.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Processing” or “To Process/Processed” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
"Client" means a person who receives care from Subscriber or related Users.
“Client Family” means one or more person who are family members related to the Client and is either seeking care service or have employed care service from the Subscriber.
“Product(s)” means the products and services that are paid by You online through a link, mobile application or via a Billing Page referencing this Agreement, whether on a trial, free or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Products that You have purchased or deployed or to which You have subscribed. “Products” exclude Other Products as that term is defined in this Agreement. From time to time the names and descriptions of the Products or any individual Product may be changed. To the extent Subscriber is given access to such Product as so described by virtue of a prior Billing Page or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Product as newly named or described.
“Subscription Plan(s)” means the packaged Product plan(s) and the functionality and Products associated therewith (as detailed on the Site applicable to the Product) for the Products to which You subscribe. As of the date of this Agreement, there are two Subscription Plans, One Time Payment and Professional. The One Time plan is a fixed priced trial plan with limited access valid for 3 months, while the Professional plan allows full access to the Product.
“Software” means software and related applications provided by the Company (either by download or access through the internet) that allows Users or End-Users to use any functionality in connection with the applicable Product.
“Subscription Term" means the period during which You have agreed to subscribe to a Product with respect to any individual User.
“Usage Data” means aggregated encoded or anonymized data that the Company may collect about a group or category of Products, features, Clients or Users while You, Your Users or End-Users use a Product for certain purposes, including analytics, and which does not contain Personal Data.
"User Guide" means the online user guide for the Product, accessible via website, as updated from time to time.
"Users" means individuals who are authorized by Subscriber to use the Product through Your Account, and who have been supplied unique user identifications and passwords by Subscriber (or by the Company at Subscriber's request). Users may include, but are not limited to, Subscriber's employees, care managers, caregivers, care coordinators, consultants, contractors, third party agents with which Subscriber transact business, Client Family members and other Product providers to the Clients such as a Client's physician, trust manager or geriatrician.
“We,” “Us” or “Our” means the "Company" as defined below:
“Company” means Think Health, Inc., a Delaware Corporation, or any of its successors or assignees.
2.1 Provision of Product
Subject to the terms and conditions of this Agreement, the Company shall make the Product available to Subscriber pursuant to this Agreement during the term of this Agreement.
2.2 User Subscriptions
Unless otherwise instructed by Subscriber, each User will be established at the base level of the Subscription Plan (i.e., the " Professional" level). Unless otherwise specified on the cover page to this Agreement, (i) the Product is purchased based on the Subscription Plan chosen by the Subscriber (1. One Time plan or 2. Professional plan) where there the Subscriber is charged a one-time fixed fee for the One Time plan and the fee for the Professional plan is calculated by the number of active Clients at the 1st of each month of the billing period (ii) unlimited additional Users can be added during the term for no additional fees at any time, and (iii) use of the Product for all Users (including added Users) will terminate on the termination date of this Agreement. A User’s subscription cannot be shared or used by more than one User but may be reassigned to a new User replacing a former User who no longer should use the Product. The One Time plan offers limited time access to the Product which the Company reserves the right to modify and change at any point in time during. The Professional plan offers complete access to the Product, which the Company also reserves the right to modify and change at any point in time.
3. Use of the Product
3.1 the Company's Responsibilities
The service is provided on an "as is" and "as available" basis. The Company shall provide the Product only in accordance with applicable laws and government regulations.
the Company has instituted physical, electronic and managerial safeguards to prevent unauthorized access, maintain data security and use of the information we collect online.
3.2 Subscriber's Responsibilities
Subscriber (i) is responsible for Users' and its End-Users’compliance with this Agreement, (ii) is solely responsible for the accuracy, quality, integrity and legality of Personal Data and of the means by which Subscriber acquired Personal Data, (iii) shall use commercially reasonable efforts to prevent unauthorized access to or use of the Product, and notify the Company promptly of any such unauthorized access or use, and (iv) shall use the Product only in accordance with the User Guide and applicable laws and government regulations. Subscriber shall not (a) make the Product available to anyone other than Users, (b) sell, resell, rent or lease the Product, (c) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Product to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Product or any data contained therein, or (f) attempt to gain unauthorized access to the Product or their related data, systems or networks.
Subscriber acknowledges that the proper provision of Care to Clients by Subscriber, Users and End-Users are solely the Subscriber's responsibility and that the Product is designed to be used in conjunction with other care-related processes and tools to ensure proper delivery of care, including unanticipated failure of the Product.
the Company expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The Company makes no warranty that the Product will meet your requirements or that the Product will be uninterrupted, timely, secure, or error free; nor does the Company make any warranty as to the results that may be obtained from the use of the Product or as to the accuracy or reliability of any information obtained through the Product or that defects in the software used in the Product will be corrected. The Company disclaims any warranty that the site (or any information or software contained therein) is free of viruses, worms, trojan horses, or other code that manifest contaminating or destructive properties. The Company makes no warranty regarding any Products obtained through the Product or any transactions entered into through the Product.
No doctor-patient relationship is established between the Company, the Subscriber, or the Subscriber's Clients by reason of the use of our website or under any circumstances whatsoever. The information contained on this website is general in nature and is intended for orientation purposes only. For any specific health care needs, the Subscriber and associated Clients should work with a doctor or other health care providers.
4.1 Product and the Company API
Subject to the terms and conditions of this Agreement, the Company hereby grants to Subscriber a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Product.
4.2 Subscriber Content
Subject to the terms and conditions of this Agreement, Subscriber hereby grants to the Company a license, with the right to sublicense, to use the Subscriber's anonymized Data in connection with the provision of the Product and the development, offering and delivery of the Company's Products and services, always respecting Government regulations on PHI confidentiality (HIPAA).
5. Proprietary Rights
5.1 Reservation of Rights
Subject to the limited rights expressly granted hereunder, the Company reserves all rights, title and interest in and to the Product, including all related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein. There are no implied rights.
Subscriber shall not (i) permit any third party to access the Product except as expressly permitted herein or on the cover page to this Agreement, (ii) modify or create derivate works of the Product, (iii) copy, frame or mirror any part or content of the Product, other than copying or framing on Subscriber's own intranets or otherwise as reasonably required for Subscriber's own internal business purposes, (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Product, (v) remove any proprietary notices from the Product or any other the Company materials furnished or made available hereunder, or (vi) access the Product in order to (a) build a competitive Product or Product, or (b) copy any features, functions or graphics of the Product.
5.3 Ownership of Subscriber's Data
As between the Company and Subscriber, Subscriber exclusively owns all rights, title and interest in and to all of Subscriber's Data.
Subscriber hereby grants the Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Product any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the operation of the Product.
6. HIPAA – Business Associate Agreement
The parties agree to the business associate terms on the Business, which is hereby incorporated into this Agreement (addendum) and will govern the use, disclosure and security of protected health information ("PHI"). In the event of a conflict between the express terms of this Agreement and the express terms in any such business associate terms, the business associate terms will apply.
7. Fees and Taxes; Payment
7.1 User Fees
User Fees will be charged depending on the Subscription Plan selected by the Subscriber. For the One Time plan, the Subscriber will be charged a one-time fixed fee for the duration specified. At any time, the Subscriber has the option to upgrade their plan to the Professional plan after which the Subscriber will have to pay the fees as determined by the Professional plan.
For the Professional plan, on the Effective Date, no fees will be charged yet to the Subscriber for the Product until the 1st of following month. On the 1st of the following month, the Subscriber shall pay all fees specified on the cover page to this Agreement in accordance with the level of Subscription Plan selected by Subscriber. Fees for the Professional plan are calculated and billed on the 1st of each month, at a base rate multiplied by the number of active Clients in the account on that day, the 1st of that month. Subscription fees are based on monthly periods that begin on 1st of each month; therefore, fees for Professional Subscription Plans added in the middle of a monthly period will not be charged until the following 1st of the subsequent month. For purposes of billing, the number of active Clients in the account on the 1st day of each month will be used to calculate the fees billed to Subscriber for that month.
Except as otherwise specified herein or on the cover page to this Agreement, (i) fees are quoted and payable in United States dollars (ii) fees are based on the number of active Clients in the account on the 1st of each month, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) and unlimited number of Users are permitted to be added by the Subscriber at any point in time under this Agreement.
7.2 Invoicing and Payment
Subscriber shall provide the Company with valid and updated credit card information. Subscriber hereby authorizes the Company to charge that credit card for the Product during the term of this Agreement. On the 1st of each month, Subscriber shall pay a fee equal in amount to the Users Fee for the Subscription Plan chosen. Thereafter, unless otherwise set forth on the cover page to this Agreement, charges for the first month and every subsequent month will be billed in arrears either monthly or in accordance with the billing frequency described on the cover page to this Agreement. Without limiting Subscriber's rights under this Agreement, or at law, all payments by Subscriber are non-refundable. For payments made by Subscriber, upon request the Company will provide a receipt evidencing payment. Subscriber is responsible for maintaining complete and accurate billing and contact information in the Product. Subscriber is also responsible for providing updated credit card information should a new card issue or an account close or change.
7.3 Overdue Charges
If any payment is not received from Subscriber when due, then, at the Company's discretion, (a) such charges may accrue late interest at the rate of 2.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date the payment was due until the date paid, and (b) the Company may require future payments to be made in advance.
7.4 Suspension of Product and Acceleration
If any amount owing by Subscriber under this Agreement or any other agreement for the Company's Products is 30 or more days overdue (or 10 or more days overdue in the case of amounts Subscriber have authorized the Company to charge to Subscriber's credit card), the Company may, without limiting the Company's other rights and remedies, accelerate Subscriber's unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend Subscriber’s Account and access to the Company's Product until such amounts are paid in full.
7.5 Payment Disputes
the Company will generally not impose late fees or suspend the Product and accelerate payment if the applicable charges are under reasonable and good faith dispute and Subscriber is cooperating diligently and in good faith to resolve the dispute.
Unless otherwise expressly stated, the Company's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Subscriber is responsible for paying all Taxes associated with Subscriber's purchases in connection with this Agreement. If the Company has the legal obligation to pay or collect Taxes for which Subscriber are responsible under this paragraph, the appropriate amount will be invoiced to and paid by Subscriber, unless Subscriber provide the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Company is solely responsible for taxes assessable against it based on the Company's income, property and employees.
8. Term and Termination
8.1 Term of Agreement
This Agreement commences on the Effective Date and, unless terminated sooner as provided herein, continues for 12 months. The Agreement will be renewed automatically for a new 12 month period, unless any of the two parties express interest on termination. The Company reserves the right to modify User Fees on agreement renewal; any pricing change will be timely notified to Subscriber.
8.2 Termination for Cause
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, except that the cure period for non-payment is five days, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.3 Early Termination
This Agreement may be terminated by Subscriber for convenience upon payment of all outstanding fees for the term of the contract.
8.4 Effect of Termination
Upon any termination for cause by Subscriber, the Company shall, except as otherwise expressly specified in this Agreement, refund Subscriber any unearned prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by the Company, Subscriber shall, as a reasonable estimate of the actual damages and not a penalty, pay an amount equal to the fees that would be due over the remainder of the then-current term. In no event will any termination relieve Subscriber of the obligation to pay the fees payable to the Company for the period prior to the effective date of termination.
8.5 Return of Personal Data
Upon request by Subscriber made within 30 days after the effective date of termination of this Agreement, the Company will make available to Subscriber for download a file of Subscriber's Personal Data in comma separated value (.csv). After that 30-day period, the Company has no obligation to maintain or provide any of Personal Data and may thereafter, unless legally prohibited, delete all of Personal Data in the Company's systems or otherwise in the Company's possession or under the Company's control.
8.6 Surviving Provisions
The provisions that by their nature continue and survive, including those of Section 5 (Proprietary Rights), 7 (Fees and Taxes; Payment), 8.4 (Early Termination), 8.5 (Effect of Termination), 8.6 (Return of Personal Data), 8.7 (Surviving Provisions), 8.8 (Non-exclusive Remedy), 9 (Confidentiality), 10 (Warranty), 11 (Indemnification), 12 (Limitation of Liability), and 14 (General) shall survive any termination or expiration of this Agreement.
8.7 Non-exclusive Remedy
Termination or expiration of this Agreement, in part or in whole, shall not limit either party from pursuing other remedies available to it, nor shall either party be relieved of its obligation to pay all fees that are due and owing under this Agreement through the effective date of termination. Neither party will be liable to the other for any damages resulting from termination as permitted herein.
9.1 Definition of Confidential Information
As used herein, "Confidential Information" means all non-public information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber's Confidential Information includes PersonalData; the Company's Confidential Information includes the Product; and Confidential Information of each party shall include the terms and conditions of this Agreement and the exhibits hereto, as well as business and marketing plans, technology and technical information, Product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Personal Data) does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9.2 Protection of Confidential Information
Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (ii) use the use any Confidential Information of the Disclosing Party solely to perform this Agreement or exercise rights hereunder, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
9.3 Protection of Personal Data
Without limiting the above, the Company shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data. The Company shall not (a) modify Personal Data, (b) disclose Personal Data except as compelled by law, as expressly permitted by this Agreement or as expressly permitted in writing by Subscriber, or (c) access Personal Data except to provide the Product or prevent or address Product or technical problems, or at Subscriber's request in connection with Subscriber support matters.
9.4 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.5 Terms of Agreement
The parties agree that the terms of this Agreement are considered Confidential Information of both parties. Each party may provide a copy of this Agreement in confidence to its advisors, counsel, any bona fide potential investor, investment banker, acquirer, merger partner or other potential financial partner, or as required by the governmental action, including action by the United States Securities Exchange Commission or its equivalent, and in connection with legal action or proceedings concerning this Agreement.
10.1 the Company's Warranties
the Company warrants to Subscriber that (i) the Product shall perform materially in accordance with the User Guide, and (ii) the functionality of the Product will not be materially decreased during a subscription term. For any breach of either such warranty, Subscriber's exclusive remedy shall be for the Company to correct the issue so that the Product performs as warranted.
10.2 Mutual Warranties
Each party represents and warrants to the other that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims and excludes all other warranties, whether statutory, express or implied, including any warranties of merchantability or fitness for a particular purpose or non- infringement of third party rights.
11.1 Subscriber Obligations
Subscriber shall defend the Company against any cause of action, suit or proceeding (each a "Claim") made or brought against the Company by a third party alleging that Personal Data, or Subscriber's use of the Product in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify the Company for any damages finally awarded against, and for reasonable attorney's fees incurred by, the Company in connection with the Claim, on condition that the Company (a) promptly gives Subscriber written notice of the Claim; (b) gives Subscriber sole control of the defense and settlement of the Claim (provided that Subscriber may not settle any Claim unless the settlement unconditionally release the Company of all liability); and (c) provides reasonable assistance in connection with the defense (at Subscriber's reasonable expense).
11.2 the Company Obligations
the Company shall defend Subscriber against any Claim made or brought against Subscriber by a third party alleging that Subscriber's use of the Product infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Subscriber for any damages finally awarded against, and for reasonable attorney's fees incurred by, Subscriber in connection with the Claim, on condition that Subscriber (a) promptly gives the Company written notice of the Claim; (b) gives the Company sole control of the defense and settlement of the Claim (provided that the Company may not settle any Claim unless the settlement unconditionally release Subscriber of all liability); and (c) provides reasonable assistance in connection with the defense (at the Company's reasonable expense).
11.3 Exclusive Remedy
This Section 11 (Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
12. Limitation of Liability
12.1 Limitation on Liability
In no event shall aggregate liability of the Company arising out of or related to this agreement, whether in contract, tort (including negligence) or under any other theory of liability, exceed the lesser of $10,000 or the amount paid by Subscriber hereunder in the 12 months preceding the incident, notwithstanding any failure of the essential purpose of this agreement or any limited remedy hereunder.
12.2 Exclusion of Consequential and Related Damages
In no event shall the Company have any liability to Subscriber for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort (including negligence) or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages and notwithstanding any failure of the essential purpose of this agreement or any limited remedy hereunder. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
12.3 Acknowledgement of Subscriber's Sole Responsibility for Subscriber's Services
Acknowledges that the proper provision of care to Subscriber's Clients is solely and exclusively Subscriber's responsibility and Subscriber will not rely solely on the offerings of the Company to ensure proper fulfillment of care plans by Subscriber's caregivers. Subscriber agrees to make redundant printed copies of all care-related materials available to caregivers to ensure that proper care is provided to Subscriber's Clients under any circumstance without regard to the function or performance of the Product.
the Company may use Subscriber's name as part of a general list of customers and may refer to Subscriber as a user of the Product in its advertising, marketing and promotional materials.
All notices to a party shall be in writing and sent to the addresses specified above or such other address as a party notifies the other party, and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by confirmed facsimile; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Subscriber and the Company are independent contractors and neither party is the legal representative, agent, joint venture, partner, franchisor, franchisee or employee of the other party for any purpose whatsoever. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever. All indices, titles, subject headings, section titles and similar items contained in this Agreement are provided for the purpose of reference and convenience only and are not intended to be inclusive, definitive or to affect the meaning, content or scope of this Agreement. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument. Neither party shall assign its rights under this Agreement nor delegate any performance (other than the right to receive payments) without the other party's prior written consent, except that the Company may, without Subscriber's consent, assign this Agreement to an affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates. Any attempted assignment or delegation in violation of the foregoing is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. The laws of the State of California (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of San Francisco, California in all controversies arising out of, or relating to, this Agreement. No remedy is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise legally available to a party. Except with respect to payment obligations, neither party is liable for any failure of performance or equipment due to causes beyond its reasonable control, including, but not limited to, the following: (i) acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; (ii) any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; (iii) national emergencies, insurrections, riots, wars or acts of terrorism; (iv) unavailability of rights-of-way or materials; or (v) strikes, lock- outs, work stoppages, or other labor difficulties. The parties may waive this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay (a) in exercising any right or remedy, or (b) in requiring the satisfaction of any condition, (c) under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person. Subscriber shall comply with all applicable United States, foreign and local laws and regulations. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement. If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. This Agreement reflects the wording negotiated and accepted by the parties and no rule of construction shall apply against either party. This Agreement is proposed and executed in the English language only and any translation of this Agreement into any other language shall have no effect. All proceedings related to this Agreement will be conducted in the English language. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.
15. ADDENDUM - HIPAA Business Associate Agreement
The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
- Business Associate. "Business Associate" shall generally have the same meaning as the term "business associate" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Company US Inc.
- Covered Entity. "Covered Entity" shall generally have the same meaning as the term "covered entity" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Subscriber contracting the Company's Product.
- HIPAA Rules. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
15.2 Obligations and Activities of Business Associate
Business Associate agrees to:
- Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law.
- Use appropriate safeguards, and 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.
- Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware.
- In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information.
- Make available protected health information in a designated record set to the covered entity as necessary to satisfy covered entity's obligations under 45 CFR 164.524.
- Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity's obligations under 45 CFR 164.526.
- Maintain and make available the information required to provide an accounting of disclosures to the covered entity as necessary to satisfy covered entity's obligations under 45 CFR 164.528.
- To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s), and
- Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
15.3 Permitted Uses and Disclosures by Business Associate
- Business Associate may only use or disclose protected health information as necessary to perform the services set forth in the Agreement. The business associate is authorized to de-identify the protected health information in accordance with 45 CFR 164.514(a)-(c) to improve and augment the Product provide to its Subscribers.
- Business Associate may use or disclose protected health information as required by law.
- Business Associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity's minimum necessary policies and procedures.
- Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity except for the specific uses and disclosures set forth below.
- Business Associate may use protected health information for the proper management and administration of the business associate or to carry out the legal responsibilities of the business associate.
- Business Associate may disclose protected health information for the proper management and administration of business associate or to carry out the legal responsibilities of the business associate, provided the disclosures are required by law, or business associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes 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 the information has been breached.
- Business Associate may provide data aggregation services relating to the health care operations of the covered entity.
15.4 Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions
- Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate's use or disclosure of protected health information.
- Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate's use or disclosure of protected health information.
- Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect business associate's use or disclosure of protected health information.
15.5 Permissible Requests by Covered Entity
Covered entity shall not request Business Associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity, except if the business associate will use or disclose protected health information for data aggregation or management and administration and legal responsibilities of the business associate.
15.6 Term and Termination
- This Business Associate Agreement uses same Term and Termination provisions described in Section 8, Term and Termination of the SaaS Service agreement, plus the following.
- Termination for Cause. Business associate authorizes termination of this Agreement by covered entity, if covered entity determines business associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within the time specified by covered entity.
- Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, business associate, with respect to protected health information received from covered entity, or created, maintained, or received by business associate on behalf of covered entity, shall:
- Retain only that protected health information which is necessary for business associate to continue its proper management and administration or to carry out its legal responsibilities.
- Return to covered entity or, if agreed to by covered entity, destroy the remaining protected health information that the business associate still maintains in any form.
- Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as business associate retains the protected health information.
- Not use or disclose the protected health information retained by business associate other than for the purposes for which such protected health information was retained and subject to the same conditions set out at "Permitted Uses and Disclosures By Business Associate" paragraphs (e) and (f), which applied prior to termination, and
- Return to covered entity or, if agreed to by covered entity, destroy the protected health information retained by business associate when it is no longer needed by business associate for its proper management and administration or to carry out its legal responsibilities.
- The business associate will transmit the protected health information to another business associate of the covered entity at termination if agreed to by covered entity.
- Survival. The obligations of business associate under this Section shall survive the termination of this Agreement.
- Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
- Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.