DocResponse, Inc., a Delaware corporation located at 9720 Cypresswood Drive, Suite 226, Houston, TX 77070 (hereinafter “DocResponse”), is the owner and operator of the proprietary appointment scheduling, digital check-in, payment, web-based patient assessment, documentation, clinical decision support, and reputation management tool accessible via DocResponse’s web portal (the “DocResponse Site”), along with the proprietary software system maintained thereon (the “Service”). This Software as a Service (SaaS) Agreement, including the Standard Terms and Conditions, any Order Form (defined below), any exhibits or schedules attached hereto, and any other documents referenced herein (collectively, the “Agreement”) is a legally binding contract between DocResponse and the health care entity (together with its providers, employees, agents and representatives) that accepts this Agreement (“Client”), in order to join and receive access to the DocResponse Site and to use the Service. Client’s access to and use of the DocResponse Site and Service are subject to and governed by this Agreement, which replaces all prior oral or written communications between the parties relating to the Service. Client and DocResponse may each be known as a “Party” or collectively as the “Parties”.
STANDARD TERMS AND CONDITIONS
SECTION 1. DEFINITIONS
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Agreement” shall have the meaning set forth in the introduction.
1.3 “Authorized Users” means Client’s or Affiliate’s health care Providers and other employees whose duties require such use and access and who are subject to confidentiality obligations at least as strict as the confidentiality obligations set forth herein.
1.4 “BAA” shall have the meaning set forth in Section 4.2.
1.5 “Care Center” means any practice affiliated with the Client.
1.6 “Contracted Care Center” is the Client and/or its Affiliate that has contracted with DocResponse by executing this Software as a Service agreement and Business Associate Agreement attached and marked as (Exhibit B) hereto.
1.7 “Client” shall have the meaning set forth in the introduction.
1.8 “Client Data” shall have the meaning set forth in Section 9.
1.9 “Confidential Information” means (a) the terms and conditions of this Agreement or any other agreement executed between the Parties; (b) all nonpublic information concerning the business, technology, products, services, internal structure and strategies of the disclosing Party, specifically including, without limitation, Service, Documentation, end-user materials, work product, Intellectual Property, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information or licensing policies, (c) any other information clearly labeled by the disclosing Party in writing as “confidential” or “proprietary” prior to its disclosure, and (d) all such information that, by its nature, a reasonable party would consider to be confidential or proprietary. The following information will not be considered Confidential Information: (i) information which was in the public domain prior to its disclosure; (ii) information which becomes part of the public domain by any means other than through violation of this Agreement; (iii) information independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information; or (iv) information received from a third party not under any obligations of confidentiality.
1.10 “Designated Contacts” means the limited number of personnel designated and identified from time to time by Client (or any of its Affiliates) who are authorized to contact DocResponse to request support.
1.11 “Disclosing Party” means the Party who discloses or otherwise provides Confidential Information to the other Party.
1.12 “DocResponse” shall have the meaning set forth in the introduction.
1.13 “DocResponse Site” shall have the meaning set forth in the introduction.
1.14 “Documentation” means the instruction manuals and functional specifications that accompany the Service as provided by DocResponse to Client or an Affiliate.
1.15 “Effective Date” means the last date of signature and thereby acceptance of this Agreement by Client and DocResponse.
1.16 “Error” shall have the definition set forth in Section 4.4.
1.17 “Hardware” shall have the definition set forth in Exhibit C, attached hereto and incorporated herein by this reference.
1.18 “Location” shall mean any discrete location at which a Client Care Center performs clinical, medical or diagnostic services.
1.19 “Fees” means those license and other fees set forth on Exhibit A, attached hereto and incorporated herein by this reference, and Exhibit C.
1.20 “Initial Term” shall be the meaning set forth in Section 6.1.
1.21 “Intellectual Property” means all intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright ability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name, service mark, or other indicia of origin; and (d) any other intellectual property, proprietary or similar rights, in each case, including all goodwill pertaining thereto and on a worldwide basis.
1.22 “Order Form” means a request from Client or an Affiliate to DocResponse for Services or provision of the DocResponse Site in the format set forth in Exhibit A.
1.23 “Party” / “Parties” shall have the meaning set forth in the introduction.
1.25 “Provider” means a physician or other practitioner credentialed or licensed within a recognized healthcare discipline and involved in furnishing the services of that discipline to patients.
1.26 “Receiving Party” shall mean the Party that receives Confidential Information from the other Party.
1.27 “Renewal Term” shall have the meaning set forth in Section 6.1.
1.28 “Service” shall have the meaning set forth in the introduction and shall include any Hardware set forth on Exhibit C and Exhibit C Addendum.
1.29 “Service Commencement Date” means the date of commencement of the Service being no later than 30 days from the Effective Date.
1.30 “Term” shall have the meaning set forth in Section 6.1.
1.31 “Terminals” means Client’s computer hardware capable of running an Internet browser, and shall specifically include Client’s desktop and laptop computers and tablets and mobile devices running iOS and Android.
1.33 “Use” means any time a Patient submits data through the DocResponse platform.
1.34 “Work-around” shall have the meaning set forth in Section 4.4.
SECTION 2. LICENSE TERMS
2.2 Documentation License Grant. Subject to the terms and conditions of this Agreement, DocResponse grants to the Contracted Care Center a limited, non-exclusive, non-transferable, and non-sublicensable right and license to use and make copies of the Documentation for internal use, archival purposes, and for training and education of the Contracted Care Center’s employees, provided that all proprietary notices of DocResponse and its licensors, if any, are reproduced. DocResponse may modify the Documentation from time to time, and Client is encouraged to view DocResponse’s website, www.docresponse.com from time to time, to view the most current version of the Documentation.
2.3 Prohibitions. Use of and access to the Service is permitted only at the Contracted Care Center Facilities set forth on Exhibit A, attached hereto and incorporated herein by this reference. Under no circumstances may the Contracted Care Center modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Service, adapt the Service in any way, use the Service to create a derivative work, or grant any other person or entity the right or access to do so, without the advance written consent of DocResponse. Except as expressly authorized by this Agreement, the Contracted Care Center shall not modify, copy, duplicate, reproduce, unbundle, sublicense, hypothecate, sell, assign, transfer, display, distribute, lend, rent, or lease the Service or any portion thereof to any third party. Notwithstanding the foregoing, the Contracted Care Center may make one electronic copy of the Service for backup or archival purposes, provided that all proprietary notices of DocResponse and its licensors, if any, are reproduced and the Contracted Care Center uses best efforts to ensure that such backup copy is stored in a safe and secure location. All proprietary and/or other notices of DocResponse or its licensors, including any trademark or copyright notices, shall be provided and maintained on the Service at all times.
2.4 Ownership. Access to the Service is licensed and not sold. The Contracted Care Center shall not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Service or the DocResponse Site aside from the limited licenses granted herein, and the Contracted Care Center hereby expressly disclaims any other rights therein. DocResponse shall have and retain all right, title, and interest in and to the Service, the DocResponse Site, and all Intellectual Property comprising the Service or the DocResponse Site, as well as any modifications or enhancements made thereto, with the sole exception of any Contracted Care Center Data (as defined in Section 9) or Confidential Information provided by the Contracted Care Center. The Contracted Care Center hereby irrevocably assigns to DocResponse ownership of any and all suggestions, modifications, enhancements, improvements, alterations, changes, or revisions to the Service made or suggested by the Contracted Care Center or its Authorized Users. The Contracted Care Center will cooperate with DocResponse to confirm such assignments and DocResponse’s ownership of such modifications. The Contracted Care Center acknowledges that DocResponse has expended a significant amount of time and energy in the creation of the valuable Service and shall take no actions that may detrimentally affect such Service. The Contracted Care Center shall not allow any third party, including any Provider or employee who is not an Authorized User within the limits set forth on Exhibit A, to use or view the Service without DocResponse’ prior written consent.
2.5 Restrictions. Unless otherwise agreed to in this Agreement, the Contracted Care Center agrees it will not nor permit another party to: (a) sell or lease any or all of the Service; (b) provide, transmit, disclose, divulge, or make available to, or permit use of the Service by, any third party or entity or machine; (c) use the Service in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party; (d) install, provide as a service, bundle, disclose, copy, use, or make the Service available for use, or otherwise utilize any or all of the Service in any manner that is not explicitly authorized in this Agreement; (e) publish, post, upload, or otherwise transmit any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (f) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of DocResponse, the Service, or the DocResponse Site; or (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that access the Service or the DocResponse Site in a manner that sends more request messages to the Service or the DocResponse Site in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser.
2.6 Notification. The Contracted Care Center shall promptly notify DocResponse of any determination, discovery, or notification that any person or entity is or may be misusing or infringing any Service. The Contracted Care Center shall not take any legal action relating to the protection or defense of any Service without the prior written notice of DocResponse. If the number of Providers who may have access to the Service increases, Client shall notify DocResponse of such change within thirty (30) days of such increase.
2.7 Access to Data. The Contracted Care Center agrees to provide DocResponse access at the user level to the Contracted Care Center’s electronic health record system to the extent necessary for DocResponse to perform the Services, and for the Contracted Care Center to realize the practical benefits contemplated hereunder. The Contracted Care Center expressly (i) represents and warrants that it has the right to grant such access to DocResponse hereunder and (ii) covenants and agrees to indemnify DocResponse from any claims, liabilities, damages, costs and expenses arising out of a breach of this representation and warranty. Notwithstanding the foregoing, any record information entered by the Contracted Care Centers’ personnel, which includes information related to a patient’s medical record, shall remain the property of the Client’s Contracted Care Centers and/or Affiliates.
2.8 Order Forms and Special Terms. Each Order Form, the details of which are set forth on Exhibit A, shall include at a minimum a listing of the Service, the number of the Contracted Care Center’s facilities, the number of Providers at all the Contracted Care Center’s facilities and the applicable Fee per Provider per month. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of this Agreement. To the extent any additional or special terms apply to the Service, such terms shall be set out in the Order Form. The Contracted Care Center acknowledges that from time to time during the Term, DocResponse may make new or additional software modules available to the Contracted Care Center in connection with the DocResponse Site and Service, which may affect the Fees per Location or Fees per Provider per month set forth on Exhibit A. In the event the Fees are adjusted upon acceptance of one or more new modules by the Contracted Care Center, a new Order Form will be issued to replace or amend the then-existing Order Form.
2.9 Hardware and Special Terms. The Contracted Care Center shall complete and execute an Exhibit C. Except as otherwise provided on Exhibit C, each Exhibit C shall be subject to the terms and conditions of this Agreement. To the extent any additional or special terms apply to the Service, such terms shall be set out in the Exhibit C.
2.10 Reputation Management Service. If the Contracted Care Center would like DocResponse to provide any reputation management services as part of the Service, the Contracted Care Center shall have all of the Contracted Care Center’s Providers execute a copy of the Reputation Management Service Agreement and Waiver set forth on Exhibit D and shall forward a copy of each executed Reputation Management Service Agreement and Waiver to DocResponse. Except as otherwise provided on Exhibit D, each Exhibit D shall be subject to the terms and conditions of this Agreement. To the extent any additional or special terms apply to the subject matter of Exhibit D, such terms shall be set out in Exhibit D.
2.11 Telemedicine (Video Service). It is acknowledged by the Parties that video conferencing software has been integrated into the Service and made available by DocResponse to Client pursuant to this Software as a Service Agreement, which was developed and delivered to DocResponse by a third party software company. DocResponse is distributing, sublicensing and/or reselling the video conferencing software as a Video Service to Client through which Client may provide Telemedicine services to its patients. Except as otherwise provided on Exhibit E, each Exhibit E shall be subject to the terms and conditions of this Agreement. To the extent any additional or special terms apply to the subject matter of Exhibit E, such terms shall be set out in Exhibit E.
2.12 Contracted Care Center Obligations. The Contracted Care Center shall maintain complete and accurate records of the Providers and Authorized Users who have access to the Service for at least one (1) year following termination of this Agreement. The Contracted Care Center will permit DocResponse to audit the Contracted Care Center’s compliance with the requirements of this Agreement, from time to time, with reasonable prior notice provided that all costs associated with such audits shall be the sole responsibility of DocResponse. Notwithstanding the foregoing, if the audit indicates there is a material breach in the Contracted Care Center’s compliance with this Agreement, the Contracted Care Center shall pay for the cost of such audit together with any amounts owed to DocResponse as a result of the audit.
SECTION 3. SERVICES, FEES AND PAYMENT
3.1 Services and Hardware. During the Term, DocResponse shall provide Contracted Care Centers with access and use of the modules and hardware ordered in Exhibit A, in exchange for the Fees listed in Exhibit A.
3.2 License and Hardware Fees. Client agrees to the monthly license agreement Fees for its individual Contracted Care Centers according to the pricing in Exhibit A and to any applicable Hardware Fees set forth on Exhibit A. The Fees will be fixed through the term for the standard modules (identified in 3.1). New and additional modules made available to Client by DocResponse may incur additional fees if the module is included in Contracted Care Center’s Service.
3.3 Implementation Fees. Client agrees to the implementation Fees for Contracted Care Centers as listed in Exhibit A.
3.4 Payment. The Contracted Care Center shall pay all Fees due and owing in connection with this Agreement, as set forth on Exhibit A. Commencing on the Service Commencement Date, DocResponse shall automatically charge Monthly License Fees then monthly thereafter. If Contracted Care Center executed a usage agreement, DocResponse shall automatically charge Contracted Care Center on a monthly basis for Fees incurred in the prior month in the form and format of DocResponse’s choosing. Payment of the Fee identified in an applicable invoice shall be due within thirty (30) days of such invoice’s issue date and shall be paid to DocResponse in the manner described on Exhibit A. The Contracted Care Center is responsible for all taxes and duties incurred as a result of its or their purchase, license, use of, or access to the Service. DocResponse may, in its discretion, assess interest on late payments at the maximum rate permitted under applicable law, with interest accruing from the date the payment was due until the date payment is received. The Contracted Care Center shall further be responsible for reimbursing DocResponse for the expense of any collection activities carried out by DocResponse or any of its agents due to the Contracted Care Center’s failure to timely pay any amount due under this Agreement. DocResponse shall have the right to suspend or terminate the Services or access to the DocResponse Site or the Hardware in the event the Contracted Care Center fails to pay any Fees due within the timeframe set forth in this Section 3, and such suspension or termination shall not be deemed a breach of DocResponse’s obligations under this Agreement.
SECTION 4. OBLIGATIONS OF THE PARTIES
4.1 The Contracted Care Center Implementation Obligations. The Contracted Care Center shall ensure that all technology and equipment required to access, operate and utilize the Service shall be provided within the period set out in Exhibit A. The Contracted Care Center agrees to provide DocResponse with all necessary co-operation and access to such information as may be required by DocResponse and as set out in Exhibit A (the “Client Information”), in order to allow DocResponse to complete the implementation and initial set up for the launch of the Services by the Service Commencement Date. The Contracted Care Center understands and agrees that the License Fees under this Agreement are payable commencing from the Service Commencement Date as set out in Clause 3.4, regardless of any delays in providing the Client Information.
4.2 The Contracted Care Center Continued Obligations. The Contracted Care Center shall have the sole responsibility for acquiring, installing and maintaining its own technology environment and equipment necessary to properly access, operate and utilize the Service, including, without limitation: Terminals, servers, Internet access, LANs and WANs; for any communications or other costs incurred in operating, accessing and using the Service; and for any other expenses relating to the foregoing. The Contracted Care Center shall be responsible for selecting and training adequate personnel with the requisite experience necessary to operate the Contracted Care Center’s systems and who are familiar with the Contracted Care Center’s records associated with the Service. The Contracted Care Center shall establish adequate operational back-up systems and procedures to ensure recovery and continuity of its systems and operations in the event of a failure. The Contracted Care Center shall be solely responsible for the security and confidentiality of any usernames or passwords granted to the Contracted Care Center or its Authorized Users to access the Service, and shall limit disclosure of such usernames and passwords to its Authorized Users. The Contracted Care Center shall be solely responsible for any authorized or unauthorized access to the Service using such usernames and passwords, and any actions taken thereunder. The Contracted Care Center shall limit use of access to the Service solely to those of its Authorized Users whose duties require such use and access and shall undertake best efforts to ensure that DocResponse’ Confidential Information and the DocResponse Intellectual Property are kept secure. The Contracted Care Center shall use its best efforts to ensure that all Authorized Users afforded access to the Service and any other information and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination or disclosure. The Contracted Care Center shall have the sole responsibility for maintaining the privacy and security of all Contracted Care Center Data.
4.3 Regulatory Compliance. The Parties agree to comply with the Health Insurance Portability and Accountability Act of 1996, P. L. 104-191, the privacy standards set forth in 45 C.F.R. Parts 160 and 164, the security standards set forth in 45 C.F.R. Parts 160, 162, and 164, and the Health Information Technology for Economic Clinical Health Act, Title XIII of Division A and Title IV of Division D of Pub. L. 111-5, and all of the rules and regulations implemented thereunder. For purposes of this Agreement, the Parties agree that Contracted Care Center is a “covered entity” and DocResponse is a “business associate” of Contracted Care Center as those terms are defined under the Health Insurance Portability and Accountability Act of 1996, P. L. 104-191. The Parties agree that adherence to the terms of the Business Associate Agreement attached hereto as Exhibit B (the “BAA”) is a condition to this Agreement. The BAA is hereby incorporated into this Agreement by reference hereto. The Contracted Care Center assumes sole and complete responsibility for ensuring that Authorized Users’ use of the Service and all related Contracted Care Center policies and procedures are in compliance with all applicable federal, state and local laws and regulations and, without limitation, laws relating to confidentiality of patient-related and any other federal, state or local privacy or information security laws or regulations.
4.4 Access and Changes to the Service. DocResponse will use commercially reasonable efforts to make the core functions and features of the Service available to the Contracted Care Center and its Authorized Users during normal business hours (7:00 a.m. – 9:00 p.m. EST Monday through Friday and Saturdays from 8:00 a.m. – 1:00 p.m. EST excluding holidays). DocResponse will use reasonable efforts to conduct routine maintenance at times that minimize disruption of use of the Service, but DocResponse does not warrant or guarantee the continuous availability of the Service and reserves the right to perform maintenance at any time. The Contracted Care Center acknowledges that DocResponse has the right, in its sole discretion, to determine the method, details, and means of providing the Service hereunder, and to change or discontinue the content or technical specifications of any aspect of the Service or DocResponse Site with appropriate notice. The Contracted Care Center further accepts that the Service and/or DocResponse Site may be periodically unavailable for system maintenance, upgrades, or other reasons. DocResponse reserves the right to implement reasonable usage limitations from time to time, including limitations on the number of page views and calls to the Service and the DocResponse Site interface and systems, as it deems necessary.
4.5 DocResponse Support and Maintenance Limitations. During the Term, DocResponse will use reasonable efforts to correct verifiable and reproducible errors in the Service reported to DocResponse by a Designated Contact. As used in this Agreement, an “error” is any failure of the Service to function in substantial conformity with the applicable Documentation provided by DocResponse. DocResponse may correct errors by making revisions to programming or by providing reasonable “work-around” solutions. DocResponse reserves the right to modify any Documentation if such Documentation, in DocResponse’s sole determination, incorrectly describes the Service functions and may do so in order to resolve an error. DocResponse retains sole discretion to determine whether and when to make new releases available and the terms on which they will be made available to the Contracted Care Center. Support services provided under this Agreement do not include on-site consultation, systems administration, facilities management, or customized programming support to resolve problems resulting from the Contracted Care Center equipment used to access the Service, resulting from modifications to the Service not made or authorized by DocResponse, or resulting from the combination of or interface for the Service with other programming or equipment if the combination or interface has not been made by or approved in writing by DocResponse. In addition, support is not provided under this Agreement for third-party software, hardware, or networks. Any time spent by DocResponse attempting to provide such support or services may be charged to the Contracted Care Center at DocResponse’s then-standard hourly rates. To ensure appropriate performance and security of the Service, DocResponse will routinely perform maintenance on a regularly scheduled basis. This may require the Service, or a portion thereof, to be suspended during the maintenance period. DocResponse will use reasonable efforts to notify the Contracted Care Center in advance of any scheduled maintenance that may adversely affect the Contracted Care Center’s access to the Service. Under certain circumstances, DocResponse may need to perform emergency maintenance, including, without limitation, a security patch installation or hardware replacement. DocResponse will not be able to provide the Contracted Care Center with advance notice in case of emergency maintenance.
4.6 Designated Contacts. The number of Designated Contacts may not exceed a number that DocResponse and Client deems reasonable and specifies to the Contracted Care Center. DocResponse reserves the right to provide services under this Agreement only to and at the request of one of the Contracted Care Center’s Designated Contacts. The Contracted Care Center may change its Designated Contacts at any time by giving written notice of the change to DocResponse.
4.7 Security. DocResponse has established and shall use reasonably adequate security programs and procedures relating to the Service and the Contracted Care Center Data. Each of the Contracted Care Center and DocResponse agrees to use its reasonable efforts to prevent unauthorized persons from having access to the Service or any equipment providing the Service. Each Party agrees to notify the other Party promptly upon becoming aware of any unauthorized access or use of the Service or the Contracted Care Center Data by any third party.
SECTION 5. THE Contracted Care Center’S RESPONSIBILITY FOR USE
5.1 Acceptable Use. The Contracted Care Center assumes sole and complete responsibility for ensuring that the Service is used only by Authorized Users, that any user of the Service has been trained and certified by DocResponse or by DocResponse-authorized trainers, and that Authorized Users do not make unauthorized use of the Service. Unauthorized use includes, without limitation: (a) use of the Service to access websites other than the DocResponse Site; (b) attempts to gain access to data about individuals other than for legitimate business purposes; (c) alteration or modification of individual data or of any Service configuration values from the originally delivered values; (d) accessing the Service through any technology or means other than through the user account information provided to the Contracted Care Center by DocResponse; (e) if DocResponse and the Contracted Care Center have agreed that the Contracted Care Center will use the Service from dedicated Terminals, installation or use of the Service on computers or devices other than the dedicated Terminals; and (f) any use of the Service or the information contained therein in violation of any applicable law or regulation. Additionally, the Contracted Care Center will use best efforts to ensure that Authorized Users comply with the following requirements, and will be responsible for any noncompliance by Authorized Users: (i) Authorized Users must not enter or transmit any information using the Service that is unlawful, false, offensive, defamatory, or infringes the rights of any person; (ii) Authorized Users must not use the Service in a way that disrupts use of the Service by others; and (iii) Authorized Users must not use any information obtained through the Service except for the purpose for which the information was provided, and must not attempt to use the Service to gain unauthorized access to information.
5.2 Suitability. The Contracted Care Center shall be responsible for determining the suitability of the Service for its operations and whether the Service will achieve the results the Contracted Care Center desires. The Service is provided as a tool for the Contracted Care Center to use as the Contracted Care Center sees fit in its business. As with manually kept records, records kept using the Service may contain errors, whether resulting from incorrect input or recording of information, Service errors, or other causes. The Contracted Care Center is solely responsible for understanding the limitations of the Service. The Contracted Care Center shall be responsible for ensuring the accuracy of any data input into the Service, ensuring and confirming the accuracy of any output and results created by the Service prior to use or dissemination, and undertaking procedures to test, identify and correct any errors or omissions relating to the foregoing.
5.3 Application. The Contracted Care Center and its Authorized Users, or their related parties, are solely responsible for any decisions made, advice or treatment rendered, or other actions taken based on information obtained using the Service, including information input by Patients. The Contracted Care Center acknowledges that any information obtained through the use of the Service is only a single factor, among many, in any decision made by the Contracted Care Center and such decisions are instead based on the totality of the circumstances and not solely on the results obtained from the use of the Service. RELIANCE ON THE SERVICE DOES NOT REPLACE CONSULTATION WITH A DOCTOR, PHARMACIST, OR OTHER HEALTH CARE PROFESSIONAL, AND USE OF THE SERVICE DOES NOT CONSTITUTE MEDICAL ADVICE. THE SERVICE IS AVAILABLE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY, AND IS NOT A SUBSTITUTE FOR THE CLINICAL JUDGMENT OF A LICENSED HEALTH CARE PROFESSIONAL IN DIAGNOSING AND/OR TREATING PATIENTS AND DEVELOPING THERAPY PLANS. NEITHER THE DOCRESPONSE SITE NOR THE SERVICE IS INTENDED TO BE THE SOLE BASIS FOR ANY TREATMENT OR THERAPY. BY ACCESSING THIS INFORMATION, THE CONTRACTED CARE CENTER AND ITS AUTHORIZED USERS ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION AND AGREE THAT DOCRESPONSE IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THE USE OF THE INFORMATION. DOCRESPONSE DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TREATMENT PLANS, THERAPY PROGRAMS, DRUGS, TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, “OFF-LABEL” DRUG USES, OR OTHER INFORMATION THAT MAY BE MENTIONED OR INCLUDED IN THE SERVICE. THE CONTRACTED CARE CENTER AND ITS AUTHORIZED USERS’ RELIANCE UPON THE SERVICE IS SOLELY AT THEIR OWN RISK.
SECTION 6. TERM & TERMINATION
6.1 Term. The Term of this Agreement is described in Exhibit A. This Agreement shall commence on the Effective Date and shall continue for the period described in Exhibit A from the Service Commencement Date (the “Initial Term”), unless terminated earlier pursuant to Section 6.2. This Agreement shall automatically renew for successive periods of one (1) year (each a “Renewal Term” and together with the Initial Term, the “Term”), provided, however, this Agreement shall not renew if a Party provides written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term. DocResponse may modify the Fees for each Renewal Term by written notice to Client at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Term.
Either Party may terminate this Agreement for convenience upon (ninety) 90 days’ prior written notice to the other Party. Should the Contracted Care Center exercise its 90-day termination clause with athenahealth, Inc., the Contracted Care Center can exercise a concurrent 90-day termination of this contract, with written notice. If Contracted Care Center requests to extend a terminated contract beyond the termination date, they will have the option of a month to month agreement that will assess a 10% fee on the total monthly licensing fee or can opt to sign a 3 month contract extension at the then current contracted rate. In addition, the Contracted Care Center shall be deemed to be in breach of this Agreement, and DocResponse may terminate this Agreement, in the event: (a) the Contracted Care Center materially breaches the terms and conditions of this Agreement, including, without limitation, the Contracted Care Center’s failure to timely pay all Fees due and owing under this Agreement to DocResponse Inc. as described in Exhibit A; (b) the Contracted Care Center allows unauthorized users, including Providers that have not been reported to DocResponse pursuant to the terms of Section 2.6, to access the Service; or; (c) the Contracted Care Center is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. Contracted Care Center will be notified by DocResponse in writing and have thirty (30) days to cure breach. In the event the breach is not cured, DocResponse may terminate the Agreement. The Contracted Care Center may terminate this Agreement if DocResponse materially breaches a term or condition of this Agreement and does not cure such material breach within thirty (30) days of receiving written notice of the breach. Doc Response may terminate the Agreement with thirty (30) days written notice if DocResponse ceases providing access to the Service generally.
6.3 Consequences Upon Termination. Upon the termination or expiration of this Agreement for any reason: (a) the licenses and rights granted in Section 2.1 and 2. shall immediately and automatically terminate, (b) the Contracted Care Center and its Authorized Users shall cease all access and use of the Service and any DocResponse Intellectual Property related thereto; (c) the Contracted Care Center shall immediately return to DocResponse any DocResponse Intellectual Property, documentation and any other DocResponse property in the Contracted Care Center’s possession; and (d) the Contracted Care Center shall certify its compliance with this Section to DocResponse in writing upon request. To the extent that DocResponse is able, DocResponse will retain data collected using the Service for any minimum period required by applicable law and regulations. Thereafter, DocResponse may delete the data in accordance with DocResponse’s data retention policy as then in effect and as modified from time to time. Notwithstanding the foregoing, DocResponse shall have no obligation to provide or return data to the Contracted Care Center upon termination unless the Contracted Care Center makes arrangements for such return acceptable to DocResponse prior to termination.
6.4 Suspension for Ongoing Harm. The Contracted Care Center agrees that DocResponse may, with reasonable telephonic notice to the Contracted Care Center, suspend access to the Service if DocResponse reasonably concludes that the Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of the Service is causing immediate, material and ongoing harm to DocResponse or others. In the event that DocResponse suspends the Contracted Care Center’s access to the Service, DocResponse will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of the Service. The Contracted Care Center further agrees that DocResponse shall not be liable to the Contracted Care Center nor to any third party for any suspension of the Service under such circumstances as described in this Section 6.4.
SECTION 7. LIMITED WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY, & INDEMNIFICATION
7.1 Limited Warranty. DocResponse warrants to the Contracted Care Center that but for the software being provided by the Third-Party: (a) the Service and Documentation, as provided by DocResponse, do not and will not infringe upon any United States copyright, patent, or trade secret; (b) to the best of DocResponse’ knowledge, the Service, as provided by DocResponse, does not and will not contain any Trojan horses, works, viruses, or other disabling devices; and (c) the Service, as provided by DocResponse, will function in substantial conformity with the applicable Documentation provided by DocResponse to the Contracted Care Center.
7.2 DISCLAIMER. THE WARRANTIES SET FORTH IN SECTION 7.1 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY DOCRESPONSE. WITH THE EXCEPTION OF SUCH WARRANTIES, THE SERVICE, THE DOCRESPONSE SITE, THE INFORMATION AND DATA ON THE DOCRESPONSE SITE, DOCUMENTATION, AND ANY SERVICES OR HARDWARE PROVIDED BY DOCRESPONSE UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, DOCRESPONSE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. DOCRESPONSE DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICE WILL MEET THE CONTRACTED CARE CENTER’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SERVICE, IF ANY, WILL BE CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. DOCRESPONSE DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICE WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND THE CONTRACTED CARE CENTER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. THE SERVICE IS NOT A BACKUP SERVICE FOR STORING CONTENT OR OTHER DATA, AND DOCRESPONSE SHALL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA. THE CONTRACTED CARE CENTER SHALL BE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY DATA PROVIDED. DOCRESPONSE MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY REGARDING ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY THIRD PARTY HARDWARE, EQUIPMENT OR SERVICE WITH WHICH THE SERVICE MAY BE REQUIRED TO COMMUNICATE OR OPERATE.
7.3 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTIES WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF THE BUSINESS ASSOCIATE AGREEMENT DISCUSSED IN SECTION 8.3, AND TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, THE CONTRACTED CARE CENTER’S SOLE REMEDY FOR ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 6.2. THE PARTIES UNDERSTAND THAT THE FOREGOING DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY ARE MATERIAL TERMS OF THIS AGREEMENT AND A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR DOCRESPONSE TO PROVIDE AND THE CONTRACTED CARE CENTER AND ITS AUTHORIZED USERS ACCESS TO THE SERVICE FOR THE SPECIFIED FEES.
7.4 Indemnification by the Contracted Care Center. The Contracted Care Center will, at its own expense, indemnify and hold DocResponse and its shareholders, members, directors, officers, employees and agents harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees) to the extent that the foregoing result from or pertain to any of the following by the Contracted Center or its employees, or agents: (i) use, misuse, and operation of the Service; (ii) breach of this Agreement; or (iii) gross negligence or willful misconduct.
7.5 Indemnification by DocResponse. DocResponse will, at its own expense, indemnify and hold the Contracted Care Center and its shareholders, members, directors, officers, employees and agents harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees) to the extent that the foregoing result from or pertain to any of the following by DocResponse or its employees, or agents: (i) breach of this Agreement; or (ii) gross negligence or willful misconduct.
SECTION 8. CONFIDENTIALITY
8.1 Confidentiality and Non-Use. The receiving Party will use best efforts to avoid unauthorized disclosure of the disclosing Party’s Confidential Information. The receiving Party will not use the disclosing Party’s Confidential Information except for purposes of fulfilling its obligations under this Agreement. The receiving Party may disclose the disclosing Party’s Confidential Information to its employees, agents, service providers and other persons who need to know such Confidential Information in connection with this Agreement. Before doing so, the receiving Party will take reasonable steps to ensure that such persons will comply with the restrictions imposed on the receiving Party by this Agreement. The obligation to protect Confidential Information will continue as long as the receiving Party possesses the disclosing Party’s Confidential Information. Each Party agrees that it will take reasonable steps to protect the secrecy of and avoid disclosure or use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of unauthorized persons.
8.2 Permitted Disclosure. The receiving Party may disclose Confidential Information as required by law or in compliance with any court or administrative order; provided that the receiving Party gives the disclosing Party prompt notice as permitted by law that such Confidential Information is being sought by a third party in order to afford the disclosing Party the opportunity to limit or prevent such disclosure. The Party will only furnish that portion of such Confidential Information that Party is legally required to disclose.
8.3 Protected Health Information. The Parties acknowledge that DocResponse may have access to patient identifiable protected health information. DocResponse will maintain the confidentiality of all patient identifiable protected health information that is within its possession consistent with the terms of the BAA attached as Exhibit B.
SECTION 9. THE Contracted Care Center DATA
9.1 The Contracted Care Center Data. The Service involves the receipt, processing, and storage of data input by the Contracted Care Center, its Authorized Users and their Patients (collectively, “Contracted Care Center Data”). Because the Contracted Care Center Data is provided by the Contracted Care Center, its Authorized Users and their Patients, DocResponse does not control such Contracted Care Center Data. In connection with the Contracted Care Center Data, the Contracted Care Center affirms, represents, and warrants that the Contracted Care Center owns or has the necessary licenses, rights, consents, and permissions to use and authorize DocResponse to use all Contracted Care Center Data in the manner contemplated hereunder and to transfer to and process such Contracted Care Center Data within the United States as may be required by applicable law. The Contracted Care Center will provide DocResponse with copies of any consents or other materials as may be requested by DocResponse and will use any consent forms that may be required by DocResponse. The Contracted Care Center represents and warrants that the Contracted Care Center has all the rights necessary for the Contracted Care Center to grant the rights in this Section 9 and the use of Contracted Care Center Data does not violate any law. By providing the Contracted Care Center Data, the Contracted Care Center hereby grants DocResponse a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing, display, and perform the Contracted Care Center Data for purposes of providing access to the Service to the Contracted Care Center under this Agreement. Additionally, the Contracted Care Center grants to DocResponse a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use, reproduce, adapt, perform, compile, display, incorporate, modify, and create derivative and collective works utilizing the Contracted Care Center Data in a de-identified format for the improvement of the Service and DocResponse’ other products and services (as may exist now or in the future) and for such other lawful purposes as DocResponse sees fit in compliance with any applicable laws and the terms of the BAA.
9.2 Inaccurate Contracted Care Center Data. The Contracted Care Center Data is beyond the control of DocResponse. DocResponse neither initiates the uploading and/or input of such Contracted Care Center Data nor monitors the specific content or accuracy of the Contracted Care Center Data being uploaded and/or input. Without limiting the generality of any other provision of this Agreement, DocResponse shall have no responsibility or liability related to the accuracy, content, currency, completeness, or delivery of the Contracted Care Center Data provided by the Contracted Care Center, its Authorized Users or their Patients. The Contracted Care Center is responsible for the accuracy, content, currency, completeness, and delivery of the Contracted Care Center Data uploaded and/or input by its Authorized Users and Patients.
SECTION 10. GENERAL PROVISIONS
10.1 Relationship of the Parties. The relationship of DocResponse and the Contracted Care Center established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. DocResponse does not grant the Contracted Care Center or any of the Contracted Care Center’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of DocResponse, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of DocResponse, or to transfer, release or waive any right, title or interest of DocResponse. DocResponse shall have the right to determine the method, details, and means of performing any services pursuant to this Agreement.
10.2 Assignment. Neither party may assign, transfer or sell (voluntarily or by operation of law) its rights or obligations under this Agreement, nor delegate its duties hereunder to any other person, without DocResponse’ prior written consent. A transfer of a controlling interest or other change in control in the Contracted Care Center shall constitute an assignment. Any purported assignment without DocResponse’s consent will be void and will constitute a breach of this Agreement. DocResponse may assign this Agreement or delegate or subcontract its obligations under this Agreement at any time.
10.3 Entire Agreement; Modification. This Agreement, including any exhibits and schedules hereto and any separate support and maintenance agreement between the Parties, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement or any exhibit or schedule shall be effective unless in writing and signed by the Party to be bound. In the event any provisions contained in a separate support and maintenance agreement, exhibit, or schedule hereto expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of such separate agreement, exhibit, or schedule shall govern to the extent such provisions expressly conflict. No use of trade or other regular practice or method of dealing between the Parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.
10.4 Notices. Any notices must be given in writing directed to the address of each Party set forth on the cover page of this Agreement, or to such other address as either Party may substitute by written notice to the other. Notices will be deemed given (a) when personally delivered; (b) if sent by recognized overnight national courier service, on the second business day after deposit with the courier, properly addressed and fee prepaid or billed to sender; or (c) when sent by fax or email, upon receipt of proper confirmation of sending, provided a copy of the notice is concurrently sent by mail.
10.5 Attorneys’ Fees. In the event of a breach of this Agreement, including nonpayment of Fees by the Contracted Care Center, the breaching Party will reimburse the non-breaching Party for all costs and expenses reasonably incurred by the non-breaching Party in connection with the breach, including, without limitation, attorneys’ fees. Additionally, in the event any suit or action is brought to enforce or interpret any of the terms of this Agreement, the prevailing Party will be entitled to recover from the other Party all reasonable attorneys’ fees incurred at trial, on appeal, and on any petition for review, together with such other expenses, costs, and disbursements as may be allowed by law.
10.6 Remedies. The Contracted Care Center agrees that a breach of Sections 2.3, 2.4, 2.5, 5.2, 6.3, and 8 will cause DocResponse irreparable injury and damage. The parties expressly agree that DocResponse shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which DocResponse might be entitled upon Client’s breach of this agreement. The Parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder. In the event a court refuses to honor the waiver of bond hereunder, the Parties expressly agree to a bond in the amount of $100.00. All remedies for such a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy with respect to the subject matter hereof.
10.7 Governing Law; Venue. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Delaware, without reference to its conflicts or choice of law principles. Any
dispute arising under this Agreement may be brought in the jurisdiction of the claimant to which the Parties hereto submit the personal jurisdiction and waive any argument of inconvenient forum. Each of the Parties hereby irrevocably
submits and consents to the personal jurisdiction of such courts.
10.8 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A fax or electronic transmission of a signed original will have the same effect as delivery of the signed original.
10.9 Force Majeure. Neither Party will be liable for any delay in performing its obligations (other than payment of money) if the delay is caused by any event beyond the reasonable control of the Party, including, without limitation, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, material or products shortages, labor disturbances, epidemic, disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any manufacturer or supplier delay in delivery or non-delivery, governmental action, terrorist attack or other similar event.
10.10 Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement.
10.11 Third Parties; Waiver. Nothing in this Agreement, express or implied, shall create or confer upon any person or entity not a named party to this Agreement any legal or equitable rights, remedies, liabilities or claims, except as expressly provided herein. The failure of either Party to enforce the provisions of this Agreement shall not be deemed to be a waiver of their right to enforce them.
10.12 Publicity. Neither Party shall use the name of the other Party, nor the nature of the relationship between the Parties, nor any information about the contents of this Agreement, for publicity, marketing or other purposes without the express written consent of said other Party, which Party shall have first been provided with written information describing the nature of such disclosure.
10.13 Export Restrictions. The Contracted Care Center and its Authorized Users shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service. Without limiting the generality of the foregoing, the Contracted Care Center represents that (a) the Contracted Care Center and its Authorized Users are not named on any U.S. or other applicable government list of persons or entities prohibited from receiving exports, and (b) the Contracted Care Center shall not permit its Authorized Users to access or use the Service in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction.
10.14 Survival. The terms and provisions of Sections 2.3, 2.4, 2.5, 3, 4.1, 4.2, 5.2, 5.3, 6.3, and 7 – 10 inclusive shall survive any termination or expiration of this Agreement.