MediSked Connect Exchange (CX) Development and License Agreement
THIS DEVELOPMENT AND LICENSE AGREEMENT (“AGREEMENT”) GOVERNS THE DEVELOPMENT AND USE OF MEDISKED, LLC SERVICES BY CLIENT.
BY ACCEPTING THIS AGREEMENT, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CLIENT REPRESENTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Client may not access the services provided hereunder if Client is a direct competitor of MediSked, LLC, except with prior written consent from MediSked, LLC. In addition, Client may not access the services provided hereunder for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 4th, 2013. It is effective between Client and MediSked, LLC as of the date of Client accepting this Agreement as specified in the attached order form (“Order Form”).
WHEREAS, Client requires MediSked, LLC to assist in the development of a “software as a service” platform entitled Connect Exchange (“Connect Exchange”) to manage Client’s data and communications as further described herein, and to provide Client with access thereto on MediSked, LLC’s application servers;
WHEREAS, Client additionally requires Internet application hosting, backups, and related services (the “Hosting Service”);
WHEREAS, Client additionally requires technical support, troubleshooting, upgrades, and updates (the “Support Service”);
WHEREAS, Client requested a proposal from MediSked, LLC for such services, all of which collectively are hereinafter referred to as the “Services,” including without limitation the operation and development of Connect Exchange, the Hosting Services, the Support Services, and any other services provided to Client hereunder by MediSked, LLC;
WHEREAS, MediSked, LLC has experience and expertise in the business of providing such Services, including the design, selection and implementation of data schema, message formats, data feed rules, alerts and reporting, and in the design, coding and testing of software in connection therewith;
WHEREAS, MediSked, LLC submitted a proposal to Client to perform such Services on behalf of Client;
WHEREAS, based on MediSked, LLC’s superior knowledge and experience relating to such Services, Client has selected MediSked, LLC to manage and provide the Services;
WHEREAS, MediSked, LLC wishes to perform such Services and acknowledges that the successful performance of the services and that the security and availability of Client data (“Client Content,” as further described herein) are critical to the operation of Client’s business; and,
WHEREAS, MediSked, LLC has agreed to provide the Services to Client, all on the terms and conditions set forth herein;
WHEREAS, Client has executed documents for placing orders hereunder, including addenda thereto, including the Order Form addenda and supplements thereto, deemed incorporated herein by reference to this agreement.
NOW, THEREFORE, MediSked, LLC and Client agree as follows:
1. Development; Grant of License; Activation
1.1 MediSked shall consult with Client, and Client shall cooperate with MediSked, to design and develop Services that meet the needs of Client, as set forth in the attached Scope of Work.
1.2 Subject to the terms and conditions herein, MediSked, LLC hereby grants Client a nonexclusive, non‑transferable and non-sub-licensable license (the “License”) to (i) access and utilize the Services on MediSked, LLC’s application servers over the Internet, and (ii) transmit and receive data related to Client’s use of the Services as necessary to create the database related to use of the Services by Client (the “Client Content”) over the Internet, and to manage data and communications between and among Client, its provider members identified on the Scope of Work attached hereto, and its insurance management system, eCare Central. The named provider members and eCare Central are hereafter referred to as “Users”, the number and identity of which may be amended from time to time by mutual agreement, not to be unreasonably withheld.
1.3 Activation shall be defined as (i) installation of Connect Exchange on MediSked, LLC’s application server, and (ii) providing Client with access thereto so that it can be utilized by Client in accordance with the terms of this Activation Agreement.
1.4 MediSked, LLC shall use commercially reasonable efforts to complete development and activation of the Connect Exchange Data Warehouse service for Client within one (1) month of execution of this Agreement, as set forth in the attached Scope of Work. Additional months of development time shall result in additional payments to MediSked, as further set forth in the Scope of Work.
2. Access and Use
2.1 Client will have access to the Services for the purpose of using the Services for its intended purpose and in accordance with the specifications set forth herein and in any documentation relating to the Services provided by MediSked, LLC.
2.2 Client will use the Services only for its internal business operations and communications between and among itself and the Users and will not permit the Services to be used by or for the benefit of anyone other than Client or the Users. Client will not have the right to re-license or sell rights to access and/or use the Services or to transfer or assign rights to access or use the Services, except as expressly provided herein. Except as expressly permitted under this Agreement, Client shall not, nor shall it permit its Users to, (i) disassemble, decompile, reverse engineer, copy, modify, transcribe, store, translate, adapt, modify, sell, lease, sublicense, or otherwise transfer, make available or distribute any part of or right to use the Services, or its applicable documentation, in whole or in part, or (ii) use The Services for the benefit of a third party or to operate it in a bureau capacity. Client agrees to use the Services in a manner that complies with all applicable laws, including but not limited to laws regarding the use and/or protection of intellectual property and copyrights. MediSked, LLC expressly reserves all rights, in and to the Services or otherwise, not expressly granted to Client herein.
2.3 Client will not: (i) transmit or share identification or password codes to or with persons other than authorized users under the terms hereof, (ii) permit such identification or password codes to be cached in proxy servers and accessed by individuals other than the Users, or (iii) permit access to the Services through a single identification or password code being made available to multiple users on any network.
2.4 Client shall be solely responsible for assigning and ensuring the security and confidentiality of all usernames and passwords with respect to access to and use of the Services by the Users. Client acknowledges that it will be fully responsible for all liabilities incurred through the use of any username with respect to the Services assigned by Client and that any transactions on the Services under a username assigned by Client will be deemed to have been performed by Client. Client shall notify MediSked, LLC immediately of any unauthorized uses of any username. Use of any username or password assigned by Client other than as provided in this Agreement shall constitute a material breach of this Agreement by Client.
2.5 Additional terms and conditions may appear on the user login web page or in a link appearing on such page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding to the extent not inconsistent with this Agreement.
2.6 MediSked, LLC will provide storage on the database application servers for Client to use for storage of data necessary for use of the Hosting Service in accordance with Hosting Level, as indicated in the Order Form and specified in section 2.6.1 of this Agreement. Storage media will meet minimum standards: RAID 10, 15K drives for data files, RAID 5, 10K drives for log file and archive storage. If Client’s use exceeds the base storage space allotted, Client will pay a monthly rate of $10 per gigabyte over the allotted storage. Such incremental fees will be calculated on the average monthly storage overage and invoiced monthly.
MediSked, LLC will provide one (1) terabyte of storage on the database application servers
2.7 MediSked, LLC will maintain a secure certificate (128 bit or higher) encryption for the Client’s site.
2.8 MediSked, LLC will register and maintain one (1) unique domain name for Client to access site.
2.9 Equipment. Connect Exchange will be developed to be supported for use on Microsoft Internet Explorer 8.0 or higher, FireFox 3.0 or higher, and Safari 2.0 or higher running on Microsoft Windows XP or higher or Mac OS X or higher and meeting those minimum standards. Client acknowledges and agrees that use of the Services is dependent upon Client’s access to telecommunications and Internet services. Client will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services. MediSked, LLC will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
2.10 Client Content. Client acknowledges that MediSked, LLC exercises no control whatsoever over any data or communications entered, sent, received or managed by Client or Users while accessing the Services (the “Client Content”) and that Client is solely responsible for the Client Content. Client covenants that at no time shall Client Content contain (i) any defamatory, (ii) any obscene, pornographic or otherwise unlawful information, data or material, or (iii) any information whose use in connection with the Services infringes the intellectual property rights of any third parties. In the event that Client requests MediSked, LLC (and MediSked, LLC agrees) to enter and/or process information on Client’s behalf, Client shall be responsible for verifying all such information promptly after MediSked, LLC’s processing, if any, and Client acknowledges that MediSked, LLC shall not be responsible for the accuracy (or inaccuracy) of any such information or any issues that may arise out of its processing of such information. In the event that inaccurate data is processed by or communicated through MediSked, LLC, MediSked, LLC’s sole liability, and Client’s exclusive remedy, shall be for MediSked, LLC to make a good faith effort to correct the affected data or remove the inaccurate information from its database. MediSked, LLC is under no obligation to review the Client Content for accuracy, potential liability or for any other reason.
2.11 Data Retention. Client agrees that MediSked, LLC obligation to keep or maintain any Client Content shall not extend beyond sixty (60) days after the expiration or termination of this Agreement; provided, however, MediSked, LLC will provide Client with a digital copy of the Client Content as set forth in Section 7.4.1.
2.12 Compliance with Laws. Client shall not use or permit the Services to be used (i) in violation of any applicable national, state, or local law or regulation, including without limitation any laws governing access to the Services or governing the Client Content; or (ii) in ways that infringe the rights of others, or interfere with other users’ use of the Services. MediSked, LLC reserves the right to suspend the Services (or any portion thereof) immediately and without notice in the event that MediSked, LLC believes that the Client Content or Client’s or any of the Users’ use of the Services is in violation of this Agreement.
3. Price, Payment
3.1 Client shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form,
3.1.1 Fees are based on services purchased and not actual usage and
3.1.2 Payment obligations are non-cancelable and fees paid are non-refundable.
3.2 If MediSked, LLC is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on MediSked, LLC’s net income, then such taxes and/or duties will be billed to and paid by Client immediately upon receipt of MediSked, LLC’s invoice and supporting documentation for the taxes or duties charged.
3.3 Invoice terms are due on receipt.
3.4 Price Adjustments. MediSked, LLC reserves the right to increase the Client’s monthly Recurring Support Fees up to once annually, with this increase not exceeding five percent (5%). This limit will remain effective for the first three years from the date of this Agreement unless indicated otherwise in the Order Form.
3.5 Client is responsible for cost of MediSked, LLC’s travel, lodging, and meals, as well as expenses incurred due to changes in travel plans requested by Client, which costs will be billed to Client upon its request of onsite training, consulting, presentation delivery, implementation, development, or support.
3.6 All payments not made within thirty (30) days after they become due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law.
4. Ownership of Intellectual Property
4.1 Ownership of The Services. Title and ownership to the Services and all derivative works based thereon created by MediSked, LLC, before or during the Term of this Agreement, including all rights to Intellectual Property (as defined in this Agreement), shall vest in and at all times remain with MediSked, LLC. For purposes of this Agreement, “Intellectual Property” means any and all United States and foreign copyrights, trademark rights, trade names, service marks, trade dress rights, patent rights, trade secret rights, inventions, mask work rights, industrial design rights, and moral rights, whether registered or unregistered, and whether statutory or at common law. Intellectual Property shall not include any information that is or becomes part of the public domain. For the avoidance of doubt, Client shall have no lesser rights with respect to any of MediSked, LLC’s Intellectual Property than does any other person or entity who is not a party to this Agreement.
4.2 Ownership of Client Content. As between Client and MediSked, LLC, Client shall retain ownership of any Intellectual Property rights it may own prior to the execution of this Agreement, or that it may independently develop or acquire thereafter; provided, however, MediSked, LLC may copy, display, distribute and use the Client Content to the extent necessary for MediSked, LLC to perform its obligations under this Agreement and MediSked, LLC shall have the right to utilize data capture and analysis tools, and other similar tools, to extract, compile and analyze any non-personally identifiable data or information resulting from Client’s and User’s access and use of The Services (“Blind Data”). To the extent that any Blind Data is collected by MediSked, LLC, such Blind Data shall be solely owned by MediSked, LLC and may be used by MediSked, LLC for any lawful business purpose without a duty of accounting to Client, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of Client, MediSked, LLC agrees to use commercially reasonable efforts to comply with the applicableU.S. laws and regulations respecting the dissemination and use of such Blind Data. For the avoidance of doubt, MediSked, LLC shall have no lesser rights with respect to any of Client’s Intellectual Property than does any other person or entity who is not a party to this Agreement.
5. Technical Support, Updates, and Upgrades
5.1 A “Support Ticket” shall be defined as any request related to a single issue from Client to provide assistance, via email and/or telephone, regarding the use and/or functionality of the Application.
5.1.1 Client may request to open 30 (thirty) Support Tickets in a given calendar month without incurring additional costs, unless otherwise specified on Order Form.
5.1.2 If Client’s use exceeds the quantity allotted, Client will pay a rate of $25 per Support Ticket over the allotted quantity. Such incremental fees will be calculated on the monthly Support Ticket overage and invoiced monthly.
5.1.3 Client shall provide and maintain a current list of no more than 5 (five) employees that may contact MediSked Support on behalf of Client, unless otherwise specified on Order Form.
5.2 MediSked, LLC shall provide a support help desk to assist with provision of solutions and/or workarounds to each Support Ticket.
5.3 Help Desk shall be available during “business hours,” defined as Monday to Friday, between the hours of 8:00 am and 5:00 pm Eastern and Help Desk shall be closed on legal holidays.
5.3.1 MediSked, LLC shall respond to email support tickets within 4 (four) business hours.
5.3.2 MediSked, LLC shall respond to telephone support tickets within 1 (one) business day.
5.4 Client acknowledges that the Services and related materials are updated from time to time by MediSked, LLC. MediSked, LLC will make best efforts to communicate updates to Client. Client shall receive or have access to all standard updates and upgrades relevant to the License.
5.5 Updates shall be defined as new features, enhancements, patches, upgrades, and service packs applied to the Application.
5.6 MediSked, LLC will use commercially reasonably efforts to ensure that updates are tested, and without defect, subject to Section 8 (Warranty and Disclaimer) herein.
5.7 MediSked, LLC shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Client.
6.1 Client acknowledges that the data centers may be owned by third parties. MediSked, LLC shall use reasonable efforts to endeavor to have the Services available based on the Hosting Service Level indicated in the Order Form, as specified in section 6.1.1 of this Agreement (measured monthly) except: (i) planned interruptions outside of normal business hours, for which MediSked, LLC has given Client at least eight (8) hours advance notice; and (ii) unplanned interruptions arising from circumstances beyond MediSked, LLC reasonable control, including, without limitation, Force Majeure, computer hardware, software, network, or telecommunications failures or delays involving hardware or software not within MediSked, LLC’s possession or reasonable control, network intrusions and denial of service attacks.
6.1.1 Hosting Service Level Uptime Availability Guarantee
MediSked, LLC shall use reasonable efforts to endeavor to have the Services available 99.7% of the time (measured monthly)
6.1.2 MediSked, LLC shall maintain HIPAA Business Associate Agreement with each third party data center owner(s).
6.2 Network Availability. For each period of Network Downtime in excess of four (4) consecutive hours experienced by Client in any calendar month, Client shall receive as its sole remedy a one (1) day Service Credit. Client shall receive a one (1) day Service Credit for each additional four (4) consecutive hour increment that any period of Network Downtime continues over such initial four (4) consecutive hour duration unless described in Section 6.1(i).
6.3 Latency. The average monthly Latency (delay) over network connections from Data Centers to the Internet will not exceed 85 milliseconds round-trip. Remedy: If Latency from Data Centers to the Internet, as applicable, for a calendar month exceeds the time frame set forth above, Client shall as its sole remedy receive a credit to Client equal to one day’s worth of the Recurring Hosting Fee paid by Client for such month.
6.4 Packet Loss. The average monthly Packet Loss over network connections Data Centers to the Internet will not exceed 0.5%. Remedy: If Packet Loss from Data Centers to the Internet exceeds 0.5% during a calendar month, Client shall as its sole remedy receive a credit to Client equal to one day’s worth of the Recurring Hosting Fee paid by Client for such month unless described in 6.1(i). The terms of this Agreement relating to Packet Loss will take effect the first full calendar month after Client’s first use of The Services.
6.5 Backup Policy and Restore Guarantee. MediSked, LLC will perform full database backups seven (7) days per week, at a frequency based on the Hosting Service Level indicated in the Order Form, as specified in section 6.5.1 of this Agreement. In the event of data corruption or server failure, MediSked, LLC will restore the most recent database backup. If a database file or set of database files is not recoverable within 12 hours of Client’s initial written request, Client shall as its sole remedy receive a refund of 5% (five percent) of the Recurring Hosting Fee for each GB (Gigabyte) of non-restorable data, up to 100% (one hundred percent) of the Recurring Hosting Fee paid by Client for such month.
6.5.1 Daily Database Backup Frequency
MediSked, LLC will perform full database backups at a minimum of two (2) times per day, seven (7) days per week.
6.6 Remedy Requirements. Upon Client’s written request to MediSked, LLC made within 30 business days of the last day of the month in which the relevant Service Level was not met, Client shall be entitled to Service Credits. A credit shall be applied only to the month in which the event giving rise to the credit occurred. The maximum Service Level credits issued in any one calendar month shall not exceed 100% of the Recurring Hosting Fees for such month. Client will not qualify for Service Level credits if Client’s account with MediSked, LLC is past due.
6.7.1 “Network Downtime” means an instance in which no traffic can pass in or out of the Selected Point of Penetration (POP) through which Client connects to the Hosting Service for more than 15 consecutive minutes.
6.7.2 “Latency” means the average time required for round-trip packet transfers between Selected POPs on the selected portions of Hosting Service during a calendar month, as measured by MediSked, LLC.
6.7.3 “Packet Loss” means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by MediSked, LLC.
7. Term; Termination
7.1 Term. This Agreement shall commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, this Agreement shall automatically renew for additional periods equal to one (1) month.
7.2 Termination for Cause. This Agreement may be terminated for Cause in the event of either of the following (either of which is hereby defined as “Cause”):
7.2.1 If Client fails to make any payment due hereunder, and fails to cure such breach within forty-five (45) days after being given notice by MediSked, LLC, then MediSked, LLC may immediately and without further notice terminate this Agreement and declare all sums due, and to become due hereunder, immediately payable. MediSked, LLC may choose (at its discretion) not to exercise its rights under this paragraph 7.2.1 if Client is disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.
7.2.2 Except as set forth in subsection 7.2.1 above, either party may terminate this Agreement immediately (a) in the event the other party commits a material breach of this Agreement and such breach continues for a period of fifteen (15) days following written notice of such breach being given to the breaching party; or (b) if the other party shall make an assignment for the benefit of its creditors, or any voluntary or involuntary proceeding in bankruptcy, reorganization or arrangement for the appointment of a receiver or trustee to take possession of the other party’s assets or any other proceeding under any law for relief from creditors shall be instituted by or against the other party (and such proceeding is not dismissed within sixty (60) days from the filing date).
7.3 Termination Without Cause. Either party may terminate without cause by providing ninety (90) days written notice to the other party, and such termination shall be effective the last day of the subsequent month from the date of receipt of notice. Client is responsible for payment of all fees through to the end date designated in the relevant Order Form or the end of ninety (90) days, whichever is greater.
7.4 Effect of Termination. Upon termination of this Agreement, all rights granted to Client under this Agreement shall terminate, each party shall return all copies of the other party’s Confidential Information (as defined in Section 3.3 of this Agreement), and Client shall pay MediSked, LLC for the Services through the effective date of termination. Additionally, upon Client’s written request, MediSked, LLC shall deliver to Client, at Client’s expense, a copy of the then-most recent data extract of the Client Content in a media and format mutually agreeable to both MediSked, LLC and Client. MediSked, LLC will deliver such extract to Client within thirty (30) days of its receipt of such a request. Expiration or termination of this Agreement shall not affect rights or obligations that vested or accrued prior to the effective date of termination of this Agreement, including without limitation MediSked’s rights to continue using anonymized Client Data as provided hereunder and any other perpetual licenses, if any, granted in this Agreement. The rights and obligations of the parties under Sections 3, 4 ,7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 shall survive any completion, rescission, expiration or termination of this Agreement other than as result of Client’s breach of its obligation to make payment as provided for, but otherwise subject to and in accordance with the provisions of this Agreement.
7.4.1 In the event of termination, Client will be provided with a SQL Server backup of Client database and data dictionary documentation. Client is responsible for any tasks related to manipulating, viewing, and printing data from database backup.
126.96.36.199 Upon request, extraction and data transformation options will be quoted and performed for a fee of one hundred and fifty ($150) dollars per hour plus shipping and storage media costs.
8. Warranty and Disclaimer
8.1 Mutual. Each party represents and warrants to the other that it has the full right, power and authority to enter into this Agreement.
8.2 Services Warranty. MediSked, LLC warrants that the Services conforms with generally prevailing industry standards. Client must report any defects in the Services to MediSked, LLC in writing within thirty (30) days of Client’s discovery of any such defect.
8.3 DISCLAIMER. THE WARRANTIES STATED IN THIS SECTION 8 ARE THE ONLY WARRANTIES MADE BY THE PARTIES WITH RESPECT TO ACTIVITIES UNDER THE AGREEMENT. THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. MEDISKED, LLC DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. NO REPRESENTATION OR STATEMENT SHALL BE BINDING UPON MEDISKED, LLC WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AS A WARRANTY OR OTHERWISE UNLESS EXPRESSLY CONTAINED IN THIS AGREEMENT.
CLIENT ACKNOWLEDGES THAT ITS USE OF THE SERVICES IS ENTIRELY AT ITS OWN RISK, CLIENT AGREES THAT MEDISKED, LLC WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (i) USE OF OR INABILITY TO USE THE SERVICES, (ii) INTERRUPTION OF BUSINESS, (iii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEBSITE OR TO THE SERVICES (iv) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, OR (v) DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY MEDICAL PAYMENT PROCESSORS.
9.1 Definition of Confidential Information and Obligations. As used in this Agreement, the term “Confidential Information” means any knowledge, trade secrets, data, or other information of any kind, whether disclosed orally, in writing or electronically and whether disclosed prior to, as of or following the commencement of this Agreement, including, without limitation, that which relates to a party’s: (i) User information; (ii) business model; (iii) business plans and strategies; (iv) concepts, ideas and designs; (v) actual or potential commercial or other business partners; (vi) actual or target markets; (vii) pricing structure, compensation; (viii) Intellectual Property, including without limitation the Intellectual Property in Connect Exchange or other Services software, in both source code and object code forms, and all concepts, design architectures, specifications, processes, techniques, algorithms, know-how, source materials, training materials, maintenance information and materials related thereto; or (ix) any other information of the party that would reasonably be expected to be kept confidential. Each party acknowledges to the other party that in the course of performing under this Agreement, it may be exposed to or acquire Confidential Information of the other party. Any and all such Confidential Information, in any form, obtained by a party or its employees, agents, or representatives in the performance of this Agreement from the other party shall be deemed to be the other party’s Confidential Information. Each party agrees to hold the other party’s Confidential Information in strict confidence, to protect it against disclosure using the same standard of care such party uses to protect its own Confidential Information, and to only permit use of such Confidential Information by its employees and agents in connection with performance under this Agreement, or in connection with the testing or enhancement of Connect Exchange or any other software or Services, or in connection with the compilation of certain statistics or reports which MediSked, LLC may use in connection with any software or Services offered by MediSked, LLC or proposed to be offered by MediSked, LLC which shall not in any manner disclose any identifiable Confidential Information of Client or the identity of Client. Except as set forth in this paragraph or as otherwise permitted by this Agreement, each party agrees not to use or disclose the other party’s Confidential Information to any third parties except to those who have a need to know such information in connection with the testing or enhancement of Connect Exchange or any software or Services and who, in either case, have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. In addition to the terms of this Agreement, the HIPAA Business Associate Contract and all applicable HIPAA laws and regulations shall regulate any personal health information exchanged between the parties through the use or provision of the Services.
9.2 Non-Confidential Information. The term “Confidential Information” does not include information that: (i) prior or after the time of disclosure becomes part of the public knowledge, not as the direct or indirect result of any inaction or action of the recipient; (ii) is approved in advance by the disclosing party for release; or (iii) the recipient is required to disclose by order of United States or other governmental authority, pursuant to applicable law, or rules of any market or exchange on which the securities of either party are listed or traded, or a court of competent jurisdiction; provided, however, in connection with any disclosure of Confidential Information under (iii) above, that the recipient shall, subject to the provisions of section 9.5 below: (A) first have given written notice of such required disclosure to the disclosing party, (B) provide the disclosing party a reasonable opportunity to interpose an objection or obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued, (C) reasonably cooperate with the efforts of the disclosing party under (B) above, as reasonably requested by the disclosing party, and (D) minimize the extent of any such disclosure only to that which is absolutely required to be disclosed.
9.3 Return of Confidential Information. At any time upon written request by the disclosing party, all of its Confidential Information, including all copies of materials or documents relating thereto, shall be promptly returned (or, in the case of Confidential Information provided electronically, permanently destroyed or removed from all storage media, which destruction or removal is certified in writing by the receiving party).
9.4 Unauthorized Transfers or Misappropriation. Upon discovery of unauthorized transfers or misappropriation of Confidential Information by the recipient, the recipient will: (i) inform the other party of known details thereof, (ii) give its best effort and assistance to the other party in the recovery and return of such unauthorized transfer or misappropriation; (iii) provide all necessary assistance in the enforcement of the other party’s rights against any third party involved in such unauthorized transfer or misappropriation, and (iv) use its best efforts to prevent further unauthorized transfer or misappropriation.
9.5 Required Disclosure. Notwithstanding the foregoing, the receiving party may immediately disclose the disclosing party’s Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that the receiving party shall use reasonable commercial efforts to provide the disclosing party prior written notice of such disclosure.
9.6 Client Lists. Client agrees to allow the use of its name in a list of Clients on the MediSked, LLC Web site and in other MediSked, LLC marketing materials. For all other written publications, Client’s consent to disclose Client as a Client of MediSked, LLC will be required.
Without limiting the right to otherwise enforce the terms hereof, the following indemnification provisions are hereby provided:
10.1Indemnification by MediSked, LLC. MediSked, LLC shall indemnify, defend and hold Client harmless from and against any and all losses, liabilities, claims, costs, expenses and damages, including reasonable attorneys’ fees, resulting from, arising out of, or in any way connected with any of the following, and shall defend against such claims and pay all amounts that a court finally awards or that MediSked, LLC agrees to in settlement of such claims:
10.1.1 any claim by Client that MediSked, LLC, or employees, subcontractors, vendors or agents of MediSked, LLC, have breached the terms of this Agreement;
10.1.2 any claim by a third party that Connect Exchange infringe any United States copyright, trademark, or patent issued as of the date of this Agreement, or other proprietary right, by defending against such claim and paying all amounts that a court finally awards or that MediSked, LLC agrees to in settlement of such claims;
10.1.3 Any claims, lawsuits, demands and judgments arising out of, or in connection with, any act or omission that compromises the security of Client Content to the extent that MediSked, LLC, or employees, subcontractors, vendors or agents of MediSked, LLC, acted maliciously, wantonly or recklessly with respect to the security of the Client Content;
except to the extent that such claims arise from breach of this Agreement by Client or are otherwise covered by the indemnification by Client set forth in Section 10.2 below.
10.2Indemnification by Client. Client shall indemnify, defend and hold MediSked, LLC harmless from and against any and all losses, liabilities, claims, costs, expenses and damages, including reasonable attorneys’ fees, resulting from, arising out of, or in any way connected with any of the following, and shall defend against such claims and pay all amounts that a court finally awards or that Client agrees to in settlement of such claims:
10.2.1 any claim by MediSked, LLC that Client, or employees, subcontractors, vendors or agents of MediSked, LLC, have breached the terms of this Agreement;
10.2.2 any claim by MediSked, LLC that is in connection with the Client Content or use of the Services by Client and its Users;
except to the extent that such claims arise from breach of this Agreement by MediSked, LLC or are otherwise covered by the indemnification by MediSked, LLC set forth in Section 10.1 above.
10.3 Conduct Not Covered by Indemnification.
10.3.1 MediSked, LLC will have no liability to Client, or to any third party, under the terms of this Agreement to the extent that any third-party claims described herein are based on use of the Services in a manner that violates (x) this Agreement or (y) the instructions for use of the Services given to Client by MediSked, LLC under the terms of this Agreement. MediSked, LLC shall have no liability to Client under Section 10 hereof or otherwise under the terms of this Agreement to the extent that any claim thereunder is based upon: (i) use of the Services in combination with equipment or software not supplied hereunder where the Services themselves would not be infringing; (ii) use of the Services in an application or environment for which it was not designed or not contemplated under this Agreement; or (iii) use of the Services in a manner that violates the terms of this Agreement.
10.4Procedure: Indemnification by one party of the other is conditioned upon the following: (i) the indemnified party promptly notifies the indemnifying party in writing of any claim; (ii) the indemnifying party has control of the defense and all related settlement negotiations; and (iii) the indemnified party cooperates in the defense and furnishes the indemnifying party with all related evidence in its control. The indemnifying party shall not settle any claim for other than monetary damages without the written consent of the indemnified party, which shall not be unreasonably withheld or delayed. If a claim with respect to matters covered under Section 10.1.2 occurs, or in MediSked, LLC’s opinion is likely to occur, MediSked, LLC may: (i) procure for Client the right to continue using the Services; or (ii) cause the Services to be replaced or modified so that it becomes non-infringing, provided, however, if neither of these alternatives is reasonably available MediSked, LLC may terminate this Agreement and MediSked, LLC shall refund to Client any prepaid fees attributable to the terminated portion of the term of this Agreement. NOTWITHSTANDING ANYTHING ELSE WHICH MAY BE CONTAINED IN THIS AGREEMENT, THE FOREGOING STATES THE ENTIRE OBLIGATION OF MEDISKED, LLC UNDER THE TERMS OF THIS AGREEMENT WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN ADDITION TO, AND NOT IN LIMITATION OF, ANY OTHER LIMITATIONS SET FORTH IN THIS AGREEMENT, MEDISKED, LLC’S ENTIRE LIABILITY FOR DAMAGES UNDER OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO MEDISKED, LLC FOR THE SERVICES, BUT IN NO EVENT SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO A CLAIM FOR SUCH LOSS OR DAMAGE.
ADDITIONALLY, CLIENT ACKNOWLEDGES THAT MEDISKED, LLC SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT THE USE OF THE SERVICES, WHETHER SUCH LIABILITY IS ASSERTED IN CONTRACT OR TORT AND IRRESPECTIVE OF WHETHER CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, EXCEPT TO THE EXTENT THAT MEDISKED, LLC HAS ACTED WITH MALICIOUS PURPOSE.
CLIENT AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
In the event of any errors with any service provided by MediSked, LLC under the terms of this Agreement (other than errors (i) arising out of Client’s failure to provide MediSked, LLC with complete and accurate information or (ii) related to non-eligible claims, which, in the case of either subprovisions (i) or (ii) MediSked, LLC shall have no liability whatsoever), as MediSked, LLC’s sole responsibility with respect thereto, at its sole cost and expense, will be to use commercially reasonable efforts to correct such errors.
MediSked, LLC shall provide Client with proof of errors and omissions insurance, upon request, up to one (1) time per year.
12. Relation of Parties
This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties; nor will either party hold itself out as an agent, partner, or joint venture party of the other party. Both parties shall be, and shall act as, independent contractors. Neither party shall have authority to create any obligation for the other party, except to the extent specifically stated herein.
Any notice or other communication (“Notice”) required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the addresses listed above or such other address that a party may designate in accordance with the provisions of this paragraph. A Notice shall be deemed given if (i) delivered personally, only upon acknowledgement in writing by a person accepting delivery at the address to which delivered; (ii) sent by facsimile, when transmitted provided that confirmation of transmission was received; (iii) sent by overnight delivery, twenty-four (24) hours after having been delivered to a recognized courier for next day delivery; and (iv) sent by certified mail or registered mail, return receipt requested, three (3) days after it is deposited in the United States mail. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given.
14. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party (each a “Force Majeure Event”).
If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
Client may not assign this Agreement, by operation of law or otherwise, without the prior consent of MediSked, LLC, which shall not be unreasonably withheld. Any attempted assignment without such written consent shall be null and void. MediSked, LLC may, without Client’s consent, assign to any person at any time the right to receive monies due or becoming due. MediSked, LLC may also, without Client’s consent, assign this Agreement in the event of a sale of all or substantially all of MediSked, LLC’s assets or stock, or a merger or consolidation with or into another entity. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
17. No Third Party Beneficiaries
Neither the Users nor any party other than MediSked, LLC and Client are intended beneficiaries of this Agreement, and no such third party shall have an independent right to enforce any of the terms or conditions hereof.
If any provision of this Agreement is for any reason held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal and enforceable provision that comes closest to the intention of the Parties underlying the original provision.
MediSked, LLC shall have appropriate written agreements with its subcontractors as necessary to bind such subcontractors to the requirements of this Agreement. MediSked, LLC shall be responsible for the performance (including without limitation non-performance) of its subcontractors hereunder. For the avoidance of doubt, MediSked, LLC’s internet service provider is not a “subcontractor” for purposes of this section.
20. Cumulative Remedies
Except as expressly set forth, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies of a Party at law or in equity, statutory or otherwise.
21. Governing Law
This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the State ofNew York, without regard to the conflict of law provisions thereof. Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located within Monroe County in the State of New York.
22. Entire Agreement
This Agreement, together with all exhibits, attachments, additional documents, and Order Forms referenced herein, constitutes the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended, or any provision waived, except in a writing signed by a duly authorized representative of each modifying, amending or waiving party. The failure of any party to require the other party’s performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by any party of a breach of any provision hereof be taken or held to be a waiver of the provision itself thereafter. The headings of the sections, paragraphs, and appendices herein are for the parties’ convenient reference only and shall not define or limit any of the terms or provisions hereof.
Client agrees and acknowledges that any acceptance of its application for the Services and the performance thereof will occur at the offices of MediSked, LLC inRochester,New York, the location of its principal place of business.
24. Facsimile Signatures
Facsimile signatures shall have the same effect as original signatures.
25. Capitalized Terms Incorporation by Reference
All capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed thereto in any Exhibit or Attachment to this Agreement. The terms of any Exhibit or Attachment to this Agreement shall be incorporated herein and made a part hereof to the same extent as if they were a part of this Agreement by being directly stated herein.