iSALUS APPLICATION TERMS OF SERVICE
Amended as of March 1, 2013.
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This Application Terms of Service ("TOS") is between iSALUS, LLC d/b/a iSALUS Healthcare ("iSALUS"), an Indiana limited liability company with its principal place of business at 212 West 10th Street, Suite B120, Indianapolis, Indiana 46202 and the client that is a party to the Order Form(s) incorporating this TOS ("Client"). The TOS together with the Order Form(s) and/or Subscription Agreement signed by the Client constitute the "Agreement" between the parties and apply to each Hosted Program and to all Services provided by iSALUS under the Agreement. When executed by the parties, an Order Form shall evidence the Hosted Program Subscription rights granted in that Order Form and the Services to be provided pursuant to such Order Form.
- iSALUS has developed a proprietary electronic medical record system ("System") and provides such system and related services on a "Software as a Service" (SaaS) model for the healthcare and other industries.
- Client desires to subscribe for the programs, services and other components of the System as described in this Agreement.
In consideration of the foregoing, the respective obligations set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
In addition to the terms otherwise defined in this Agreement, the following terms when capitalized and used in this Agreement shall have the meaning indicated.
- "Activation Date" shall mean the date on which the Client is delivered an account number, login name, and password from iSALUS to use the Hosted Programs.
- "Applicable Requirements" shall mean this Agreement, and all applicable laws and regulations governing this Agreement, including but not limited to HIPAA, HITECH, other federal and state laws and regulations governing the privacy and security of PHI (as defined below) and the Anti-Kickback Statute, the Federal Physician Self-Referral Laws and other federal and state laws and regulations governing this Agreement and other financial relationships involving iSALUS and the Client and its individual practitioners, all as amended from time to time.
- "Clinical Data" shall mean electronic health records and demographics in respect of one or more patients of the Client.
- "Client Data" shall mean information entered into the Hosted Programs by Client in the course of its authorized use of the Hosted Programs and stored on the Host Server for access by the Hosted Programs and retrieval by the Client. For the avoidance of doubt, Client Data includes Clinical Data.
- "HIPAA" shall mean Health Insurance Portability and Accountability Act of 1996 and those regulations promulgated thereunder, all of which may be amended from time to time.
- "HITECH" shall mean that part of the American Recovery and Reinvestment Act of 2009 or "ARRA" which is also referred to as the "Health Information Technology for Economic and Clinical Health Act," and those regulations promulgated thereunder, all of which may be amended from time to time.
- "Host Server" shall mean the server utilized by iSALUS, either directly or through its service provider or agent, through which Client accesses the Hosted Programs, identified by a URL and one or more accounts and passwords to be established by Client.
- "Hosted Programs" shall mean OfficeEMR™ and other computer software in object code form owned or licensed by iSALUS to which iSALUS provides Client with the Subscription rights granted pursuant to the Agreement, general updates and upgrades to the Hosted Programs (but excluding tailored or premium upgrades not available generally, unless such upgrades are specifically included in the applicable Order Form), online documentation, and iSALUS's proprietary programs and Host Server which enable Client to access the computer software.
- "Order Form(s)" shall mean the document(s) by which Client orders Hosted Program subscriptions and Services, and which are agreed to by the parties.
- "Protected Health Information" or "PHI" shall mean that Individually Identifiable Health Information, in addition to other personal information (e.g., Social Security Number, etc.) which may be specially protected under applicable state and/or federal law(s), all of which is created or received by the Client in its capacity as a Covered Entity, with all such capitalized terms defined by HIPAA.
- "Provider" shall mean each employee, contractor or agent of Client that provides patient care or services on behalf of Client, including without limitation physician providers, nurse practitioners, physician assistants, a medical facility or equipment that is the entity for patient care or services. Other medical supporting staff is not considered Providers, including nurses, medical/therapy/dental assistants, technicians (lab, radiology, etc.), phlebotomists, case managers and administrative staff.
- "Services" shall mean Hosting Services, Billing Services, Electronic Services, Support Services or other services as specifically identified in an Order Form.
B. USE OF HOSTED PROGRAMS
- Subscription Rights Granted
- iSALUS grants to Client a nonexclusive, non-transferable, limited, and revocable right to use the Hosted Programs in accordance with and subject to the limitations set forth in this Agreement ("Subscription") for all Providers defined in the Order Forms(s). Client shall be entitled to use the Hosted Programs as follows: (i) to assign access rights to the Hosted Programs on the Host Server solely for Client's own internal business operations; and (ii) to use the documentation provided with the Hosted Programs (online or otherwise) in support of Client's authorized use of the Hosted Programs. Except as specifically authorized in the Order Form(s) or Subscription Agreement and except with respect to an Authorized User (as defined below), Client may not allow any third parties to access the Hosted Programs, or use the Hosted Programs for third-party training, commercial time-sharing, rental or service bureau use. For these purposes, an “Authorized User” means and is limited to any customer of Client for which Client has created an account for its purposes and to which iSALUS has assigned a unique access code to the Hosted Programs and to such personnel of such customer to whom iSALUS has assigned a unique access code or who have been authorized by such customer to utilize the customer’s access code for proper purposes, provided that such customer and each such personnel have agreed to use the Hosted Programs on the terms and subject to the limitations set forth in this Agreement (subject to such modifications or waivers as iSALUS may consent in its discretion).
- During the term of this Agreement and indefinitely thereafter, Client shall not, and shall ensure that its employees, agents, and representatives do not, directly or indirectly, download, communicate, copy, modify, reverse engineer, disassemble, decompile, reproduce, divulge, or use, for its, his or her own benefit or the benefit of any other individual, entity, firm, or association, any of the Hosted Programs or create derivative works of any of the Hosted Programs other than as permitted by this Agreement.
- As between the parties, iSALUS retains all title, copyright, and other proprietary rights in the Hosted Programs and in the System, whether or not at any time patented or patentable, copyrighted or copyrightable, possessed or hereafter developed or acquired. Client does not acquire any rights, express or implied, in the Hosted Programs, other than those specified in the Agreement.
- Verification. iSALUS or its agents shall have the right to monitor use of the Hosted Programs by Client: (i) electronically at any time; or (ii) by on-site audit of Client's use of the Hosted Programs (not more than twice per year upon reasonable notice to Client during the ordinary course and at any time after and during the continuation of a default by Client under this Agreement) and to charge for additional Providers as appropriate under the Agreement. Client represents and warrants that it shall provide correct information to iSALUS with respect to the number of Providers of Client. If the number of Providers is discovered to be more than reported by Client, iSALUS may retroactively charge Client for services based on the corrected amount.
- Hosting Services. iSALUS will provide Client with access to the Hosted Programs available online or through an iPhone (or equivalent) application selected in the Order Form(s) and will provide for the storage and retrieval of Client Data in connection with use of the Hosted Programs and the Services. Client is responsible for obtaining access to the Internet, using software and hardware that meets the minimum requirements, including security requirements, set forth in iSALUS's system requirements as provided to Client via iSALUS's website from time to time (the "System Requirements"). Client acknowledges that iSALUS reserves the right to modify such minimum System Requirements from time to time and may post such modified System Requirements on its website, which is currently iSalusHealthcare.com. iSALUS shall notify Client of any such modification of its System Requirements.
Client acknowledges and agrees that (i) the Internet is not operated by iSALUS; (ii) iSALUS is not responsible and has no control over the information or materials accessible via the Internet through use of the Hosted Programs; and (iii) iSALUS does not own or control any of the various facilities, equipment or communications lines through which Internet access may be provided. Client acknowledges and agrees that use of the Hosted Programs and the Internet is Client's responsibility and that Client's use of the Hosted Programs via the Internet is solely at Client's own risk and is subject to all applicable local, state, national and international laws and regulations. Notwithstanding the foregoing, Client shall not be responsible or liable for any errors, corruption, and security or use issues associated with the Hosted Programs that are caused by the gross negligence or willful misconduct of iSALUS. Client acknowledges and agrees that the reliability, availability, integrity and performance of resources accessed through the Internet or other services connected to the Hosted Programs are beyond the control of iSALUS and are not in any way warranted or supported by iSALUS. Client acknowledges and agrees that even though iSALUS has taken precautions to protect the security of Client Data and to prevent the creation or entry of viruses in the Hosted Programs, the Internet may not be a secure network, that third parties may be able to intercept, access, use or corrupt the information Client transmits over the Internet, that the Hosted Programs may not be error or virus free and that iSALUS is not responsible for invalid destinations, transmission errors, or corruption or security of Client Data being transmitted via the Internet or of any of Client's hardware, software or other information technology infrastructure or components unless such error, virus, invalid destinations, transmission errors or corruption or security are caused by the gross negligence or willful misconduct of iSALUS.
- Rights to Client Data. Client represents and warrants that it has the rights to all Client Data, including the right to upload Client Data to the Host Server in connection with its authorized use of the Hosted Programs. Client agrees that the Client Data and its use do not infringe the rights of any third party or violate any Applicable Requirements and agrees to indemnify and hold the iSALUS Parties harmless from any third-party claims of infringement or violation of laws under the same terms and conditions set forth below for iSALUS's infringement indemnity, unless such third-party claims of infringement or violation of laws arise or relate to the gross negligence or willful misconduct of iSALUS. For these purposes, "iSALUS Parties" includes iSALUS and each of its members, managers, officers, employees, agents and contractors.
- Data Security. Client agrees to access the Hosted Programs and to store and retrieve data using third party programs, including specifically Internet "browser" programs that support data security protocols compatible with those specified by iSALUS. Unless otherwise agreed in writing, Client agrees that to access the Hosted Programs, Client will use only software that meets or exceeds the System Requirements. iSALUS agrees to maintain the security of Client Data using industry-standard data security protocols, and other methods reasonably deemed to be adequate for secure business data that are in compliance with all applicable state and federal laws and to notify Client in the event of a breach of security involving Client Data. iSALUS agrees to retain Client Data on a secure server and to maintain data recovery and data backup facilities in accordance with accepted industry practices. iSALUS shall defend, indemnify and hold Client harmless from any and all claims, losses, damages, fines, penalties, costs or fees (including reasonable attorneys’ fees) related to or arising from the failure of iSALUS to comply with (i) HIPAA; (ii) the HITECH Act; (iii) any privacy laws of the State of Indiana; or, (iv) any other security or privacy laws applicable to iSALUS and of which iSALUS has knowledge.
- Ownership of Data and Subscription.
- Client shall retain ownership of all Client Data stored or retrieved in connection with use of the Hosted Programs, which data shall be subject to the confidentiality provisions set forth below. Client agrees that storage or caching of Client Data is not an infringement of any intellectual property rights of Client or otherwise violates any applicable laws. Client agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. Provided that iSALUS implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Client acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that iSALUS may use such de-identified information for any lawful purpose.
- Client's ownership rights in the Client Data shall not extend to or encompass any iSALUS software programs, program portions, or program documentation for the programs that are incorporated into the hardware and/or software that iSALUS owns, leases, or licenses, including, without limitation, the Hosted Programs, or to the ideas, concepts, know-how, or techniques employed by iSALUS or its contractors in rendering the Services to Client or in any aggregated or integral database established or maintained by iSALUS. Unless otherwise requested in writing by Client, iSALUS shall not be required to hold any Client Data for more than one hundred twenty (120) days after completion of iSALUS's processing and/or printing thereof. If such request is not made in writing, iSALUS may dispose of all such Client Data in its possession in compliance with HIPAA and any other applicable laws. If such request is made, iSALUS and the Client will mutually agree on the terms and conditions (including reasonable compensation to iSALUS, if appropriate) under which iSALUS will continue to hold such information. In the absence of any such agreement, iSALUS may return a true and complete copy of all such information to the Client and after such return, dispose of any remaining copies of such information iSALUS may have in its possession in compliance with HIPAA and any other applicable laws.
- Electronic Services. In connection with use of the Hosted Programs, iSALUS may provide certain "Electronic Services" to Client, as set forth in the applicable Order Form(s), in conjunction with one or more third-party partners, and Client hereby waives any and all liability and claims which Client may have against iSALUS or the partner in connection with the provision of Electronic Services except to the extent directly caused by the willful misconduct or gross negligence of iSALUS or the partner. Such Electronic Services are subject to availability via iSALUS clearinghouse partners. Independently levied submission charges from payors are not included in the pricing and will be charged separately. Approval for electronic submission to and remittance from most non-commercial payers can take 4-8 weeks from the date Client returns completed forms to iSALUS.
- Data Import Limitations. Client is responsible to provide the data in an acceptable format as specified by iSALUS documentation. The iSALUS database resulting from import of Client's data will be a reflection of the quality of data provided by the Client. iSALUS is not responsible for inability to perform services due to improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. Client acknowledges that transferring data is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. ISALUS shall not be liable for any errors, losses or damages incurred in connection with the import of Client's data, including any losses or damages arising from loss of Client data, unless such loss or damage arises from or relates to the willful misconduct or gross negligence of iSALUS. Client and iSALUS are responsible to adopt reasonable measures to limit the impact of such problems. Client shall maintain an accurate backup copy of all data provided to iSALUS. Client and iSALUS are also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.
- Data Storage Fee Assessment. Client is allowed an amount of Data Storage as set forth in the Order Form(s), and any excess Data Storage used by a Client will be billed in increments as defined by and pursuant to the rate identified by iSALUS. For purposes of this Section C.8, "Data Storage" means the disk space that is allocated for the storage of documents, images, scheduled reports and other files (including Client Data) that are saved or utilized by Client (or its Providers). Data Storage does not include application data stored in the server database or data such as claim files submitted to the clearing house, or remittance files received from the clearinghouse.
- Data Import Warranty. iSALUS warrants that the importation of data by iSALUS conforms in all material respects with the written documentation or specifications provided by iSALUS to the Client. This warranty is for a period of 5 business days from the delivery date, or until the database is altered in any way by the Client, whichever comes first. During the warranty period, Client may report any discrepancies or errors attributable to iSALUS's failure to comply with the foregoing warranty, and upon verification of the error, iSALUS shall correct the database promptly after such verification or refund the amount paid for the data import service.
- Use of Forms and Templates. In connection with use of the Hosted Programs, iSALUS may provide certain templates, forms, etc. to Client, as part of the Services offered to Client, and Client hereby waives any and all liability and claims which Client may have against iSALUS or any of its providers or partners in connection with the use, modification, and/or customization of such unless such liability or claim is the direct result of the willful misconduct or gross negligence of iSALUS or its providers or partners. If Client provides iSALUS with a form or template which it desires be used for the Hosted Services (or any of them), Client acknowledges that iSALUS may rely on the accuracy and compliance with all Applicable Requirements of such form or template.
- Onsite Training. Onsite training at the commencement of the Services and any additional training shall be offered by iSALUS as described in the Order Form(s).
- Deadlines. iSALUS's ability to deliver the requested Services, at the scope and scale described, depends on Client meeting certain approval deadlines and Client deliverable dates that may apply to specific Services and to be set forth by iSALUS from time to time. Should approval be withheld past such approval deadline, or should Client deliverable dates not be met in the course of delivering the Services, target delivery dates may require rescheduling by iSALUS staff based on availability, and iSALUS will have no liability for such delays or rescheduling.
- Consulting Limitations. iSALUS warrants that all consulting services are performed by trained personnel, and that services will be provided for the scope and time period indicated. However, iSALUS does not guarantee any specific results from training or other consulting services. As with all consulting services, effectiveness depends largely upon Client's ability and willingness to utilize and implement ideas, concepts, and practices presented by iSALUS consultants.
- Web Services. iSALUS may make available to Client web services and application program interface functions (collectively, "Web Services") for the purpose of enabling Client to share specific data between iSALUS's Hosted Programs and other software and/or data sources owned or licensed by Client unrelated to iSALUS (the "External System"). Any customized Web Services will be provided by iSALUS on the terms set forth in the applicable Order Form. Any service fee for Web Services does not include (i) documentation for the Web Services; (ii) the right to develop software that accesses the Web Services; (iii) any configuration, interface development, or non-standard configuration of the external data interface that may be required by the External System but is not already available from iSALUS or approved for development by iSALUS.
- Limitation of Web Service Use. Client's use of iSALUS Web Services is expressly limited to the registered interfaced External Systems described in each applicable Order Form. Access to or use of iSALUS Web Services by External Systems not disclosed therein is strictly prohibited. Support is limited to verification of performance of iSALUS Web Services as interfaced to the External System. Additional Client support may be available at iSALUS's then-current rates for custom technical services.
- Limitation of Web Service Liability. Notwithstanding any other provision of this Agreement, iSALUS has no liability under the Agreement for any disclosure of Protected Health Information ("PHI") made by means of access to the Web Services by or on behalf of Client, or by means of access by any third party to the extent such third party obtained access to the Web Services as a result of intentional disclosure by Client or any breach of the Agreement or any negligence by Client, its personnel, agents or third-party contractors. In addition, iSALUS has no liability under this Agreement for any modification of Client's hosted application data, or for any consequences that may arise from such modifications (including, but not limited to, incorrectly modified or lost data), unless such modifications were made by Client at the request of iSALUS, made by means of access to the Web Services by or on behalf of Client, or by means of access by any third party to the extent such third party obtained access to the Web Services as a result of intentional disclosure by Client or any breach of this Agreement or any negligence by Client, its personnel, agents or third-party contractors.
- Other Compliance Obligations. iSALUS and Client, together with their officers, employees, agents and representatives, shall at all times exercise their best efforts to comply with and assist the other party in complying with (i) all Applicable Requirements; and (ii) applicable Medicare and third-party payers' rules, regulations and policies concerning treatment, reimbursement and billing procedures or practices, as applicable. Client, in order to avoid violation of governmental fraud and abuse statues, rules and regulations, shall take reasonable measures to accurately document the medical services rendered and submitted for billing and shall refrain from submitting false or inaccurate information, documentation or records to iSALUS. Client shall immediately notify iSALUS of the discovery of any errors in any information or data submitted to iSALUS which in any way affects Client's billings.
- Client Obligations for Use of Hosted Programs. The Client will verify the critical outputs of the Hosted Programs following generally accepted standards of medical practice. The term "critical outputs" means outputs (including without limitation output in the form of data) that the Client knows or should know have potential for negative impact on patient care. The Client will confirm the accuracy of life threatening information and critically important results in the same manner that such information and results would be confirmed or verified if it were in paper form or as would otherwise be confirmed or verified if the Client was using applicable standards of good medical practice. The Client will inform authorized Users that they should be vigilant in reporting to the Client's chief executive officer or its compliance officer any actual or suspected errors or defects of which the Client or its authorized Users become aware in the course of using the Hosted Programs. The Client will report promptly to iSALUS any discovered or reported defects from the operating specifications with respect to the Hosted Programs that have been discovered or reported by any of the Client's authorized Users. If the Client or any of its authorized Users are alerted to a problem that its authorized Users know or should know could adversely affect patient care, the Client will promptly alert all of its authorized Users who could reasonably be affected by the problem. The Client and its authorized Users will test the Hosted Programs in the Client's environment before use. The Client will do reasonable testing of all critical areas in the Hosted Programs and will not use it until the Client has assured itself of its accuracy utilizing such procedures. The Client will use the Hosted Programs only in accordance with applicable standards of good medical practice in all material respects. The Client further acknowledges that the performance of Treatment, Payment and Health Care Operation functions (as defined by HIPAA) in the operation of the Client lies solely with the Client and its Users. The Client takes full responsibility for the content of all Clinical Data and acknowledges that the use of the Hosted Programs is in no way intended to replace or substitute for professional or business judgment. The Client and its Users will take no actions to limit or otherwise preclude the ability of iSALUS to provide Hosted Programs hereunder that fully complies with Medicare Part D "interoperability" requirements necessary to preserve electronic prescribing capabilities, or alternatively, any of the requirements necessary for the Client and its "eligible professionals" to make "meaningful use" of the Hosted Programs and to qualify for incentive payments under HITECH, as applicable. The Client shall use commercially reasonable efforts to cause all Users to access and use the Hosted Programs solely for legitimate business purposes in accordance with all Applicable Requirements, including but not limited to this Agreement.
- Permitted Uses of Client Data. Client hereby authorizes iSALUS to enter into certain health information exchange and data sharing arrangements with third parties from time to time during the term of this Agreement for the purpose of providing Client Data for and on behalf of Client to perform Treatment, Payment and Health Care Operations functions (as those capitalized terms are defined by HIPAA) on the condition that iSALUS enters into a Business Associate Agreement with any such third party which shall require compliance in all respects with HIPAA/HITECH. iSALUS and the Client agree and acknowledge that despite the Client's access to and use of Hosted Programs and iSALUS's Hosting Services, iSALUS shall not have access to Client's Financial Information due to the sensitive nature of said Financial Information. On an "as needed" basis, iSALUS may request certain limited access to the Client's Financial Information for legitimate business purposes permitted by Applicable Requirements but only upon Client's prior express written authorization by the Client's authorized representative.
- Segmentation of Services. In connection with any renewal of the Initial Term or subsequent renewal term, and at such other time as may be acceptable to iSALUS in its discretion, the Client may request that one or more Services no longer be provided and that the remaining Services continue, in which event, (i) the continuing Services shall be provided at the then applicable rates and fees for the continuing Services, and (ii) the Client and iSALUS shall enter into a new Order Form(s) reflecting the continuing Services and the applicable rates and fees which will supersede any prior Order Form with respect to the continuing Services.
D. TERM AND TERMINATION
- Term. Client's rights to use the Hosted Programs and Services shall remain in effect for the Initial Term set forth in the Order Form(s) or Subscription Agreement. Thereafter, unless otherwise provided in the Order Form(s) or Subscription Agreement, the term shall automatically renew for additional terms as set forth in the Order Form(s) or Subscription Agreement at then-current prices unless either party gives thirty (30) days advance written notice prior to the end of the then-current term of its intention to terminate the Agreement, or until otherwise terminated as provided herein.
- Termination for Convenience. Either party may terminate this Agreement without cause by giving notice to the other party. Termination under this provision shall be effective at the date set forth in the notice but in any event not earlier than thirty (30) days after the date of notice.
- Termination Protocols. Notwithstanding the notice required under Section D.4, iSALUS reserves the right to terminate this Agreement immediately in the event of Client's failure to pay amounts owing under this Agreement in accordance with the following protocols: Upon Client's failure to make timely payment, iSALUS may notify the Client that iSALUS is triggering its rights under this Section D.3. If the Client does not pay in full all past due amounts within ten (10) days, iSALUS shall have the right to limit Client's access to the Hosted Programs and the other Services to one Rendering Clinician, determined jointly by iSALUS and Client, and in such event, iSALUS may deactivate all other accounts of any User. Failure to exercise such right or any delay in the exercise of such right shall not affect iSALUS's other rights under this Section or otherwise available to iSALUS. If payment is not received within twenty (20) days thereafter, iSALUS reserves the right to terminate this Agreement without further advance notice to Client.
- Termination for Cause. Either party may immediately terminate the Agreement at any time if the other party commits a material breach upon written notice specifying the nature of the breach and such breach, if subject to cure, is not promptly and in any event within reasonable time as may be set in the notice of breach.
- Termination Events. Upon the happening of any of the following events, iSALUS shall have the right to terminate this Agreement and Client's access to the Hosted Programs and all of the Services, in accordance with and upon notice provided in Section D.4:
- Abuse or misuse of the Service by Client which is contrary to the policies of iSALUS and/or which causes disruption or malfunction of the Service;
- Any assignment, sublicense or transfer (whether by operation of law or otherwise) of this Agreement or of any of Client's rights, liabilities, duties or obligations pursuant to this Agreement without the written consent of iSALUS; or
- If, in the reasonable opinion of iSALUS, a material change occurs in Client's practice which affects iSALUS's ability to provide the Services or if the information which Client provided to iSALUS in order for iSALUS to determine its required fee under this Agreement is materially inaccurate. A material change or material inaccuracy shall include, without limitation, material differences in payer mix, Client fees, number of cases, and average charge per patient visit or location of practice.
- Termination for Failure to Meet Service Level Commitment. Client shall have the right to terminate the Agreement at any time if the Hosted Programs are not available for more than ten (10) consecutive hours in any ten (10) day period; provided that Client's notice of termination under this provision must be provided in writing to iSALUS within ten (10) days of the event giving rise the right of termination. Restrictions on use for routine maintenance, upgrades and repairs of less than twelve (12) hours in any calendar month shall not count towards the availability requirements above. iSALUS shall perform and routine maintenance during non-business hours. Any non-routine maintenance and repairs will be performed in a diligent and commercially reasonable manner to minimize the length of time that access during the ordinary working day is not available.
- Termination Payments. In the event this Agreement is terminated by Client for any reason other than termination pursuant to Sections D.1, D.4 or D.6, Client shall pay to iSALUS an amount equal to six (6) times the highest monthly aggregate fees in the three (3) months prior to the delivery of notice of such termination.
- Effect of Termination. Termination of the Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Client's obligation to pay all fees that have accrued or are otherwise owed by Client under any Order Form or under the Agreement or adversely affect any other rights of iSALUS upon termination that may be set forth in any Order Form(s). Upon termination of the Agreement, access to the Hosted Programs and all Services shall be terminated. Upon termination, other than for breach on the part of iSALUS under Section D.2 or D.3 above, all unpaid fees that are due and owing by Client related to the initial term or any renewal term shall be due and payable in full immediately. Upon any termination of this TOS, iSALUS shall maintain a copy of Clinical Data in accordance with and for the period of time as required by applicable law.
E. INDEMNITY, WARRANTIES, REMEDIES
- Infringement Indemnity. iSALUS will defend, indemnify and hold Client and its officers, members, directors, employees and agents harmless against any and all claims, losses, damages, liabilities, costs or fees (including reasonable attorneys’ fees) that the Hosted Programs infringe a copyright, patent or any other intellectual property rights of third parties, provided that: (a) Client notifies iSALUS in writing within 30 days of the claim; (b) iSALUS has sole control of the defense and all related settlement negotiations with such counsel for iSALUS as iSALUS may select and which is reasonably acceptable to Client, which iSALUS agrees will be exercised in a reasonable manner in cooperation with such counsel as selected by Client (at Client’s expense); and (c) Client provides iSALUS with reasonable assistance, information and authority necessary to perform iSALUS's obligations under this Section. Reasonable out-of-pocket expenses incurred by Client, including reasonable attorneys’ fees, in providing such assistance will be reimbursed by iSALUS. iSALUS will obtain the prior written approval of Client, which approval shall not be unreasonably withheld, conditioned or delayed, before entering into any settlement of such claim. In the event the Hosted Programs are held or are believed by iSALUS to infringe, iSALUS shall have the option, at its expense, to (a) modify the Hosted Programs to be non-infringing; (b) obtain for Client a subscription to continue using the Hosted Programs; or (c) terminate the subscription for the infringing Hosted Programs.
- Warranties and Disclaimers
- Hosted Program Warranty. iSALUS warrants that the Hosted Programs will materially perform in accordance with the documentation so long as (i) the Client has a current, paid-up right to use the Hosted Programs; and (ii) Client's access to the Host Server will meet the minimum criteria set forth in the System Requirements.
- Services Warranty. iSALUS warrants that its Hosted Program Services, Support Services, Electronic Services, and other Services described in an applicable Order Form will be performed consistent with generally accepted industry standards.
- Disclaimers. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY ORAL REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OF iSALUS AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. iSALUS does not warrant that the Hosted Programs will operate in the combinations that Client may select for use, that the operation of the Hosted Programs will be uninterrupted or error-free or fit for its intended purpose, or that all Hosted Program errors will be corrected, provided that nothing in this sentence shall limit any obligations of iSALUS under this Agreement.
- Exclusive Remedies. For any breach of the warranties contained in Section E.2, Client's exclusive remedy, and iSALUS's entire liability, shall be: A. For Hosted Program Services and Electronic Services: The correction of Hosted Program errors that cause breach of the warranty. Any error not reported to iSALUS by Client within thirty (30) days of its discovery will be deemed waived and accepted by Client. B. For all other Services: The re-performance of the Services, provided that Client notifies iSALUS in writing of any defects in the Services within thirty (30) days of their performance.
F. PAYMENT PROVISIONS
- Invoicing and Payment. All fees are to be paid in United States Dollars. iSALUS will have the right to begin issuing invoices for payment of Subscription and all service fees upon any of (i) the successful testing and acceptance of the Hosted Programs by the Client and the use of the Hosted Programs by one or more Providers, (ii) thirty (30) days after iSALUS certifies to Client that the Hosted Programs are operational and usable by Providers in accordance with the operating specifications of the Hosted Programs provided by iSALUS, (iii) thirty (30) days after the Activation Date, (iv) sixty (60) days after the date of the applicable Order Form, or (v) the date set forth in the applicable Order Form(s), provided that iSALUS in its discretion may delay issuance of any invoice for any reason (and any such delay shall not prejudice any rights of iSALUS under the Agreement). In the absence of specific provisions in the applicable Order Form(s), fees for one-time Services are due upon acceptance of any Order Form and prior to delivery of the Service. Fees that are fixed, such as monthly Subscription fees, shall be payable monthly in advance and due in full upon the first day of each month; all other Services that are variable and dependent on actual usage are billed in arrears and due upon receipt. An administrative late charge of $35.00 per invoice per month will be charged for any invoice not paid by the due date and which remains unpaid each 60 days thereafter, including any electronic transaction that is declined and any returned checks. Additionally, any amounts payable by Client hereunder which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law, from the due date until such amount is paid. Client shall have ninety (90) days from receipt of an invoice to dispute any portion of the invoice and any issue not raised by Client in writing within ninety (90) days from receipt of the invoice is hereby irrevocably waived by Client. To the extent iSALUS incurs any expenses in collecting (or seeking to collect) unpaid amounts due from Client under this Agreement (including but not limited to reasonable attorneys' fees), Client shall be liable for (and promptly reimburse iSALUS) for any such expenses.
- Taxes. The fees listed in the Agreement do not include taxes; if iSALUS is required to pay sales, use, property, value-added, withholding, excise or other taxes, duties, or governmental charges based on the Subscription rights granted or Services provided under the Agreement or on Client's use of Hosted Programs or Services, then such taxes, duties, or governmental charges shall be billed to and paid by Client. If iSALUS is found to be responsible for the withholding and payment of taxes on behalf of Client, Client agrees to indemnify iSALUS with respect to the full amount of taxes due together with applicable interest and penalties. If Client is required to withhold any tax from any payment, then the amount of the payment will be automatically increased to totally offset such tax so that the amount remitted to iSALUS, net of all taxes, equals the amount invoiced or otherwise due. This Section shall not apply to taxes based on iSALUS's net income.
- Variable Use Service Fees. Variable use service fees are subject to change with 30-day written notice to Client.
- Credit Card Authorization. Client authorizes iSALUS to process charges against the Client's credit card and to initiate ACH payments from the Client's bank account, which credit card and bank account are identified in the Order Form or other separate writing provided to iSALUS. Client acknowledges that monthly recurring fees identified in the applicable Order Form(s) may be charged to such credit card and that any amounts over $5,000 may be subject to an ACH transfer.
G. GENERAL TERMS
- Nondisclosure. By virtue of the Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to (i) the Hosted Programs, (ii) iSALUS's and Client’s processes, methods, pricing, business plans, know-how, and other confidential material, including the terms and pricing under the Agreement, and (iii) all information clearly identified as confidential. A party's confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The parties agree to hold each other's Confidential Information in confidence during and following the term of the Agreement, regardless of the reason for termination. In the event that either party is under a legal duty to disclose any Confidential Information or is requested or required for the purposes of legal, administrative, or arbitration to disclose any Confidential Information, the party receiving such disclosure request will provide the other party with immediate written notice of any such request or requirement so that such party may seek an appropriate protective order or other relief.
- Trademarks. Except for linking to iSALUS web sites, Client may not use any logo or trademark of iSALUS or its affiliates, whether or not such mark(s) are registered, without prior written approval from iSALUS. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the name of iSALUS or any of its affiliates (or any derivative thereof) in Client's URL, business name, or the names of any add-on products or services Client may be offering independent of iSALUS is strictly prohibited. Additionally, using the name of iSALUS or its affiliates in paid targeted keyword advertising campaigns on search engines is also prohibited. Likewise, iSALUS may not use any logo or trademark or other intellectual property of Client, whether or not such mark(s) are registered, without prior written approval from Client, provided that Client consents to the use by iSALUS of any such marks and related intellectual property of Client as Client may provide to iSALUS or as may be reasonably related to the services to be provided or obligations to be performed by iSALUS hereunder, waives any obligations to obtain further approval with respect thereto, and grants to iSALUS a license to such marks and related intellectual property for such purposes as set forth in this Agreement, which license shall be non-exclusive, worldwide, royalty free and nontransferable (other than in connection with a permitted assignment of this Agreement) for the term of this Agreement and thereafter for a reasonable period of time to allow for an orderly wind-down, Client acknowledges that the content for the Hosted Programs provided by iSALUS is owned by iSALUS and disclaims any right or interest therein, other than the use rights provided by the express terms of this Agreement.
- Governing Law and Dispute Resolution. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the State of Indiana, without giving effect to principles regarding conflicts of laws. Any controversy or claim arising out of or relating to the Agreement, or breach thereof, shall be submitted to the following procedure: (a) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (b) if no resolution is reached within sixty (60) days of the settlement conference, the parties will submit the dispute to non-binding mediation in Marion County, Indiana under the mediation rules of the American Arbitration Association; and (c) if no settlement is reached within sixty (60) days of the start of mediation, either party may seek legal redress in the courts serving Marion County, Indiana.
- Notice. Client and iSALUS agrees to notify each other of any change to the other party’s business address, business contact, and support contact within ten (10) days of any change thereto. All notices required or permitted hereunder shall be given in writing (which shall include telecopier and email communication) or as specifically set forth in the applicable section of the Agreement. To expedite communication, each party may treat documents emailed or faxed to them by an Authorized Representative of the other party as original documents; nevertheless, either party may require the other to exchange original signed documents to evidence an order for Hosted Programs or for Services. Each party's Authorized Representative shall be such person so designated from time to time in writing by the party and, in the absence of such writing, shall include any person holding the title of vice president or above. Unless otherwise provided herein, all notices, requests and other communications to be given to either iSALUS or Client shall be deemed to have been duly given if (a) delivered by hand and receipted for, (b) sent by United States Mail, return receipt requested, postage pre-paid, (c) delivered by overnight receipted delivery service or (d) telecopied or emailed subject to confirmed receipt and accessing of such telecopy and email, with a copy of each material notice to be delivered concurrently to such party’s respective outside counsel, as specified by such party from time to time, to iSALUS at the address set forth herein and to the Client at the address most recently provided in any Order Form and/or Subscription Agreement, or such substituted address or person as any party has given to the other party in writing. All notices, requests and other communications given pursuant to this Agreement shall be effective (a) if delivered by hand, when delivered, (b) if mailed in the manner provided herein, two (2) business days after deposit with the United States Postal Service, (c) if delivered by overnight express delivery service, on the next business day after deposit with such service and (d) if by telecopier or email, on the next business day if also confirmed in the manner provided herein (provided that any such communication delivered by telecopier or email which is received after the recipient’s regular business hours shall be deemed received on the recipient’s next business day).
- Limitation of Liability. In no event shall either party be liable for any indirect, incidental, punitive, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages, unless such damages arise from the gross negligence or willful misconduct of the other party. The total liability of iSALUS to Client and of Client to iSALUS, respectively, for damages under the Agreement shall in no event exceed $50,000 in the aggregate for any single claim or series of related claims, provided that this limit shall not apply (i) to any damages caused by the willful misconduct, gross negligence, fraud or bad faith of iSALUS or Client, as applicable, or (ii) to any payment obligations of Client to iSALUS pursuant to the terms of this Agreement. The liability of iSALUS for damages and/or losses arising out of mistakes, omissions, interruptions, delays, errors or defects in the Service, or failures or defects in the services furnished by iSALUS, shall in no event exceed the charges to the Customer for the period of service during which such mistake, omission, interruption, delay, or error or defect in transmission, or failure or defect in facilities occurs or exists. The provisions of the Agreement allocate the risks between iSALUS and Client. The parties agree that iSALUS's pricing and other terms and conditions of the Agreement reflect the allocation of risk and the limitation of liability specified herein. Notwithstanding the foregoing, in the event of a breach or threatened breach of Section G.1, G.2, or G.7 hereto, iSALUS or Client, respectively, shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages and/or injunctive relief, together with the right to recover from the other party costs, including reasonable attorneys' fees, for any such breach of the terms and conditions of such Section.
- U.S. Government and HIPAA. The Hosted Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects is proprietary data belonging to or authorized for use by iSALUS. If the Hosted Programs and accompanying documentation are used under the terms of a DoD or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in the Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively. The HIPAA Business Associate Agreement attached hereto as Exhibit A is incorporated into the TOS by this reference.
- Nonsolicitation. Client agrees that during the term of the Agreement and for a period of two (2) years thereafter, it shall not, either directly or indirectly, hire any current or past employees of iSALUS or the employees of any known subcontractor of iSALUS. For purpose of the Agreement, a "current or former employee" means any person employed by iSALUS or any known subcontractor of iSALUS at any time within the then previous twelve (12) months.
- Other Terms. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment, breach of iSALUS's proprietary rights in the Hosted Programs or invoice disputes (which are governed by Section F.1), claims by Client pursuant to Sections E and G.1 and G.2 or claims by iSALUS pursuant to Section C.3, G.1, G.2, or G.7, no action, regardless of form, arising out of the Agreement may be brought by either party more than two (2) years after the cause of action has accrued. The Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement. iSALUS may not assign this Agreement or any rights or obligations under this Agreement to a third party without the prior written consent of Client, provided that such consent shall not be required with respect to any assignment of this Agreement to (i) any affiliate of iSALUS, (ii) any successor to iSALUS in connection with the transfer of all of the business of iSALUS or the segment of iSALUS’ business providing the services contemplated by this Agreement (whether pursuant to any merger, recapitalization, transfer of ownership, sale of assets, joint venture or similar transactions), or (iii) any secured party in connection with the grant by iSALUS to such secured party of a security interest in iSALUS’ contract rights generally (each a “Permitted Assignment”). iSALUS shall give Client prompt notice of any Permitted Assignment, which notice shall include the nature of the assignment and the identity of the assignee. Client may not assign, transfer, lease, or sublicense the Agreement, use of the Hosted Programs, or any rights or obligations hereunder without prior written consent of iSALUS, which may be granted or withheld in iSALUS's sole discretion; any such assignment, transfer, lease, or sublicense without prior consent shall be void. iSALUS and Client may modify the terms of the Agreement, including this TOS and any incorporated Order Form(s) or Subscription Agreements, only upon the mutual written agreement of iSALUS and Client. It is expressly agreed that the terms of the Agreement and any Order Form shall supersede the terms in any Client purchase order or other ordering document, and any such additional or conflicting terms are rejected by iSALUS. The Agreement shall not constitute a joint venture by the parties and does not constitute either party as an agent or legal representative of the other in any manner whatsoever. iSALUS and Client shall be excused from performance of their obligations hereunder if and to the extent their performance is prevented by any cause reasonably beyond their control, such as and not by way of limitation, fire, floods, windstorms, strikes, work stoppages, failure of equipment belonging to others, riots, acts of God, acts of the public enemy and acts of governmental authority. Except as expressly set forth herein, the parties acknowledge and agree that this Agreement is solely between the parties hereto and is not intended to and does not constitute any other person or entity whatsoever as a third party beneficiary hereof. In the event of an inconsistency between this TOS and the Order Form(s), the terms and conditions of the Order Form(s) shall apply.
- Authority of Signatory. The individual executing the Order Form(s) or Subscription Agreements on behalf of the Client represents that he or she is authorized to act on behalf of and to bind the Client.
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