These General Terms are incorporated into the Agreement between Provider (“You” and “Your”) and HEALTHEMEDRECORD, LLC (“HEMR”). In case of conflict between the wording of these General Terms and any other document, the wording of these General Terms shall prevail.
Capitalized terms used in this Agreement, not otherwise defined on the Ordering Document, shall have the meanings set forth or cross-referenced below:
means, as to any Person, any other Person that, directly or indirectly, is controlled by, is under common control with or controls such Person.
means, collectively, the software application or applications identified and described in the Ordering Document, including any updates and changes thereto.
means Your employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by You or on Your behalf. You acknowledge and agree that: (i) the maximum number of Authorized Users authorized to access the Application(s) shall not exceed the number of licenses You have been granted, as set forth in each Ordering Document; (ii) licenses cannot be shared or used by more than one individual Authorized User but may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who are no longer permitted to access the Application(s).
means all confidential and/or proprietary information and documents furnished or disclosed by or on behalf of a Party or its Affiliates, no matter when or how furnished or disclosed. Confidential Information includes, without limitation, (a) all nonpublic information relating to a Party’s or its Affiliates’ technology, business plans, agreements, promotional and marketing activities, finances and other business affairs, and (b) all third party information that a Party or its Affiliates is obligated to keep confidential. Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, or may be in the nature of unwritten knowledge. Confidential Information does not include any information that (w) has become publicly available without breach of this Agreement, (x) can be shown by documentation to have been known to the receiving Party at the time of its receipt from the disclosing Party or its Affiliates, (y) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (z) can be shown by documentation to have been independently developed by the receiving Party without reference to any Confidential Information. Confidential Information does not include any information or data which is Protected Health Information.
means user guides, operating manuals, specifications, whether in print, machine readable media or otherwise in tangible form, and all other related materials relating to the Application(s) which describe its features, functions and uses and which supplied by HEMR to You in writing.
means the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder.
“Intellectual Property Rights”
means: (a) any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (ii) trademark, trade dress and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, and (v) other intellectual and industrial property rights of every kind and nature throughout the universe, however designated, whether arising by operation of law, contract, license, or otherwise; and (b) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force regarding any of the foregoing.
means an annual rate being the lesser of (a) six percent (6%) over the prime rate of interest reported in The Wall Street Journal on the date of measurement or (b) the maximum rate of interest permitted by law.
means the Ordering Document that accompanies and incorporates this Agreement, including the policies and any other
document referenced or incorporated into the Ordering Document or this Agreement.
means any natural Person about whom Protected Health Information has been, or is intended to be, uploaded, maintained, transmitted or otherwise included in the Application.
means, whether or not capitalized, any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.
“Protected Health Information”
or “PHI” as used herein shall have the same meaning as defined under the Privacy and Security Rules at 45 C.F.R. § 160.103, limited to the information created or received by HEMR from or on behalf of You.
shall mean time during which scheduled maintenance or updates to the Application(s) occurs. You shall receive twenty-four (24) hour advance notice of any Scheduled Maintenance.
means the use of the Application(s) and any other services contemplated by this Agreement in a hosted environment provided and maintained by HEMR to which You are being granted access under this Agreement via a web site or another designated IP address.
means federal, state, provincial, and local, sales, use, excise, value- added or similar tax, duties, or levies associated with the performance of the obligations of HEMR under this Agreement not based on HEMR’s net income or assets.
means the period of time commencing on the Effective Date of this Agreement and continuing until the expiration of the last Renewal Term.
2. Application(s) License.
Subject to the terms and conditions contained in this Agreement, HEMR hereby grants Your Authorized Users (i) a non-exclusive, non-transferable and non-sublicenseable limited right to access the features and functions of the Application(s) solely for Your internal business operations and subject to the terms of this Agreement; and (ii) a non-exclusive, non-transferable and non-sublicenseable license to make a reasonable number of copies of the Documentation solely for Your internal use in connection with access and use of the Application. Subject to the limitation on the maximum number of Authorized Users described in Your Ordering Document, You are permitted to add, transfer, or remove Authorized Users in Your discretion; provided, however, that You shall remain at all times fully liable for the acts and omissions of Your Authorized Users in conjunction with the obligations set forth in this Agreement.
(a) You agree that under this Agreement, or otherwise, You do not acquire any license to use the Application(s) in excess of the scope and/or duration of this Agreement and/or the Services. Upon the end of this Agreement or the Services hereunder, Your right to access or use the Application(s) and the Services shall immediately terminate.
(b) You may access and/or use only the Services within the Application(s) that HEMR authorizes You to use in advance. You shall not use the Application(s) for any purposes other than as permitted hereunder or as set forth in any Documentation. You may not use the Application(s) in any unlawful manner, for any illegal purpose, or in any manner inconsistent with this Agreement.
(c) You will not (i) copy or duplicate the Application; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Application(s) is compiled or interpreted, and You acknowledge that nothing in this Agreement will be construed to grant You any right to obtain or use such source code; (iii) modify the Application, the Application(s) Documentation, or create any derivative product from any of the foregoing, (iv) act as a service bureau of the Application(s) or, except as provided herein, otherwise run the Application(s) for any-third party or, (v) except otherwise expressly permitted in this Agreement, assign, sublicense, sell, resell, lease, rent or otherwise
transfer or convey, or pledge as security or otherwise encumber, Your rights
(d) You acknowledge that this Agreement grants certain rights to
access the Application, but nothing herein may be construed to require
delivery of a copy of the Application(s) or to grant You any right to obtain
such a copy.
(e) You acknowledge and agree not to use the Application(s) in a
manner inconsistent with the following: (i) the Application(s) is intended to
deliver non-critical, non-emergency data; (ii) the Application(s) is dependent
on the use of hardware, software and services of third-parties, outside the
control of HEMR, and which may restrict or condition such use, and You shall
conform Your use to any terms and conditions of such third-parties; (iii) the
Application(s) is not intended as a substitute for any system of administering
and safeguarding medical treatment information; (iv) the Application(s) is not
expected to perform at the same level of performance and/or reliability one
might expect from devices used in the delivery of critical medical care; and
(v) there may be occasional communication failures or delays in the delivery
or receipt of information sent through the Application.
3. TERM AND TERMINATION; SURVIVAL.
(a) Term. The original term of this Agreement will begin on the
Effective Date and will continue in effect for the period of time described in
the Ordering Document. This Agreement shall automatically renew for
successive additional terms (each a “Renewal Term”) upon the expiration of
the prior term and continuing until the end of the calendar year. At the end of
the Term, all rights to access or use the Services, including the Application(s)
listed in the Ordering Document, shall immediately end.
(b) Termination for Any Reason. Either party may, in their sole and
absolute discretion, terminate this Agreement and all Attachments by written
notice to the other setting forth a termination date being a date not less than
ninety (90) days from the date the notice is received.
(c) Termination for Non-Payment. HEMR may immediately suspend
Services, Your password, account, and access to or use of the
Application(s), including that of any Authorized User, if You fail to pay HEMR
any outstanding amount. HEMR may terminate the Services, use of the
Application(s) and/or this Agreement if You breach this Agreement and it is
not cured within ten (10) days after initial notice thereof. Any suspension by
HEMR of the services under this paragraph shall not excuse You from Your
obligation to make payment(s) under the agreement or to fulfill any other
obligations of Yours hereunder. Notwithstanding such cessation, the
amounts described in Section 4 hereof, including any late payment fees,
shall continue to accrue. Any such termination shall not be deemed to limit
any other remedies available to HEMR. In the event that HEMR incurs any
fees or costs (including without limitation, any reasonable attorneys’ fees) in
collecting outstanding balances under this Agreement, You shall be liable for
all such fees and costs.
(d) At Your request, and for a period of up to 60 days after the
termination of the applicable Ordering Document, HEMR may permit You to
access the Services solely to the extent necessary for You to retrieve a file
of Your data, if any within the Application(s).
4. FEES; PAYMENT.
You shall pay HEMR the fees set forth in any Ordering
Document or other agreement between the parties, in accordance with the
payment schedule and any payment terms set forth therein, or if not
otherwise indicated, immediately. All fees due under this Agreement are non-
cancelable and deemed fully earned once due and the sums paid
nonrefundable. All amounts due hereunder are owed without obligation of
HEMR to provide You an invoice or other billing statement, which may be
provided for purposes of convenience only. You will reimburse HEMR for
reasonable expenses related to providing any on-site portion of the Services.
Fees for services listed in an Ordering Document are exclusive of taxes and
expenses. Any amounts not fully paid within fifteen (15) days of being due
will be subject to a late fee of $25 for each month outstanding.
(b) Renewal Term.
Unless otherwise agreed by the Parties, in writing,
the Annual Fee for each Renewal Term will be an amount equal to the annual
fee then charged by HEMR for single licenses multiplied by the number of
All payments required by You under this Agreement are
exclusive of Taxes. Any Taxes shall be Your sole responsibility and You shall
immediately pay or reimburse HEMR for any such Taxes.
(d) Past-due Payments. All invoices not paid when due shall bear
interest from the due date to the date of actual payment at the Interest Rate.
In the event that a HEMR incurs any fees or costs (including without
limitation, any attorneys’ fees) in any action to enforce this Agreement, You
shall be liable for such fees and costs.
5. AUDIT RIGHTS.
(a) Data Validation/Integrity Testing.
You covenant, represent and
warrant that all data You provide to HEMR, including any data You enter or
upload into the Application(s) by Your Authorized Users, will be true, correct
and accurate and You will take all reasonable steps necessary to ensure that
the data You and Your Affiliates add to the Application(s) are true, correct
and accurate at the time it is entered into the Application(s) and at all times
thereafter. You understand and agree that this includes a continuing
obligation to ensure the accuracy, integrity and validity of such data,
including data relating to Your Patients, as well as an obligation to ensure
that data is displayed within the Application(s) in a manner which is not
misleading or susceptible to misinterpretation. Without limiting the forgoing,
You agree to reasonably follow any instructions, policies and
recommendations of HEMR with respect to maintaining data integrity and to
promptly and diligently participate in all reasonable data validation and
integrity testing and/or audits of such data reasonably requested by HEMR,
and promptly and diligently provide any information reasonably requested by
HEMR to fulfill any data validation, integrity testing and/or audits by CMS;
provided, however, that Your adherence to such instructions, policies and
recommendations shall not lessen Your independent obligation to ensure the
accuracy, integrity and validity of such data. You must keep data and records
and supporting documentation sufficient to support the validity and accuracy
of such data for at least three (3) years. You agree to provide HEMR or its
representatives access to all relevant records requested in connection with
its efforts to ensure the accuracy, integrity and validity of data, and HEMR
shall have the right to conduct one or more audits to ensure Your compliance
with these obligations.
You must keep accurate records relating to the Authorized
User(s) of the Application(s) and Services provided pursuant to this
Agreement. HEMR has the right to verify compliance with this Agreement
and any Ordering Document during the term hereof and for a period of three
(3) years thereafter, and You agree to provide HEMR or its representatives
access to all relevant records requested in connection with such verification.
Such verification shall take place upon not less than ten (10) days’ notice,
during normal business hours and in a manner which is designed not to
unreasonably interfere with Your operations. We may elect to require You to
complete a self-audit questionnaire relating to the Authorized User(s) of the
Application(s) and Services provided pursuant to this Agreement, and You
agree to promptly and accurately complete such questionnaire, including any
requested certification of such response by Your principal executive officer.
If the verification and/or self-audit reveals material unlicensed use (e.g.
license shortage of 5% or more) of the Application(s) or Services, You must
pay for additional licenses at a rate equal to the highest rate for single
licenses charged by HEMR during such period as well as for the costs HEMR
incurred in the verification and/or self-audit. Nothing in this section shall be
deemed a waiver of HEMR’s right to enforce this Agreement or any Ordering
Document or to protect its intellectual property rights by any means permitted
6. HIPPA AND DATA SECURITY.
(a) HIPAA Compliance.
HEMR represents and warrants that, as
provisioned, it has used commercially reasonable efforts to maintain
information and data security controls for the Application(s) and Services in
a manner which complies with the applicable provisions of HIPAA. HEMR
may aggregate data derived through Authorized Users’ use of the
Application(s) and Services and use the aggregated data for any lawful
(b) Patient Consent.
You agree to provide any notices and obtain any
consents related to Your use of the Application(s) and/or Services and
HEMR’s provision of the Services, including those related to the collection,
use, processing, transfer and disclosure of personal information. You shall
have sole responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness and ownership of all of Your data, including for verifying the
accuracy thereof and accuracy and validity of any such data reported by
HEMR on Your behalf. In addition, You shall secure and maintain all requisite
consent of Patients to use, store and transmit any their PHI in and through
the Application(s) and as otherwise provided by this Agreement or any
Ordering Document prior to transmitting or otherwise using the Application(s)
for such PHI. Specifically, and without limiting the forgoing, You shall ensure
that patient-specific data, quality measure results, numerator and
denominator data, and patient-specific data on Medicare and non-Medicare
beneficiaries, as applicable, may be properly disclosed to HEMR and by
HEMR to and qualified registry or QCDR, as well as any such disclosure
required in connection with any data integrity testing, data validation or audit
in connection with the Application(s) or Service(s) provided by HEMR to You.
You shall maintain a copy of such consent on file at all times, and shall
provide a copy of such consent to HEMR as requested. HEMR shall have
the right to conduct one or more audits to ensure compliance with this
(c) Business Associate Agreement.
Subject to this Section 6 and
Section 7 hereof, each party’s obligations, responsibilities, liabilities and
remedies arising out of or relating to storage, use, access, management,
transmission or other actions relating to HIPAA shall be solely as set forth in
a Business Associate Agreement (“BAA”), substantially in the form of Exhibit
B hereto, signed by the parties hereto, and each party disclaims any
covenants, representations, warranties, liabilities or remedies with respect
thereto except as provided in this Section 6 or Section 7 hereof or in such
7. REPRESENTATIONS; WARRANTY DISCLAIMER; AND LIMITATIONS OF
Each Party represents and warrants to the other
that (i) it has the full right, power and authority to enter into this Agreement
and perform its obligations hereunder; (ii) this Agreement constitutes a legal,
valid and binding obligation of it, enforceable against it in accordance with
the terms of this Agreement, and (iii) its execution and delivery of this
Agreement, and its performance hereunder, will not violate or conflict with
any other contract or agreement to which it is a Party.
(b) WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET
FORTH IN WRINTING IN THIS AGREEMENT, HEMR MAKES, AND
EXPRESSLY WAIVES AND DISCLAIMS, ANY REPRESENTATIONS OR
WARRANTIES REGARDING THIS AGREEMENT, THE APPLICATION OR
THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
QUALITY, NON-INFRINGEMENT, NON-INTERFERENCE, DATA
SECURITY, SYSTEM AVAILABILITY, LEGAL COMPLIANCE, SYSTEM
INTEGRATION, HARDWARE SYSTEMS, NETWORKS OR
ENVIRONMENTS OR IMPLIED WARRANTIES, INCLDUING ANY ARISING
OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF TRADE.
(c) LIMITATION OF DAMAGES.
i. HEMR WILL NOT BE LIABLE (WHETHER IN
CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO,
NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO YOU OR
ANY OTHER PERSON OR ENTITY FOR COST OF COVER, LOST
PROFITS, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING
DAMAGES FOR LOSS OF BUSINESS OR DATA) ARISING OUT OF THIS
AGREEMENT, THE APPLICATION OR THE SERVICES.
ii. HEMR DOES NOT GUARANTEE THAT THE
SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED,
OR THAT HEMR WILL CORRECT ALL SERVICES ERRORS. YOU
ACKNOWLEDGE THAT HEMR DOES NOT CONTROL THE TRANSFER
OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE
INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE
USE OF SUCH COMMUNICATIONS FACILITIES. HEMR IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER
DAMAGE RESULTING FROM SUCH PROBLEMS.
iii. HEMR’S AGGREGATE LIABILITY ARISING UNDER
OR WITH RESPECT TO THIS AGREEMENT, THE APPLICATION OR THE
SERVICES WILL BE A SERVICES FEE CREDIT TO YOU CALCULATED
AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE
APPLICABLE SERVICES FOR THE MONTH IN WHICH BASIS FOR SUCH
LIABLITY OCCURED. THE CREDIT WILL BE PROVIDED ONLY
TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO
HEMR, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT
YOUR EXCLUSIVE REMEDY, AND HEMR’S SOLE LIABILITY, FOR ALL
MATTERS ARISING OUT OF AND/OR RELATING OT THIS AGREEMENT,
THE APPLICATION OR THE SERVICES.
8. Intellectual Property.
(a) Third Party Technology.
HEMR reserves the right to provide the
services from locations, and/or through use of subcontractors, The
Application(s) and Services may incorporate third party technology. Your
right to use such third party technology (“Third-Party Provider”) is governed
by the terms of the agreements and/or licenses to use third party technology,
and You agree not to take any action which would cause HEMR to be in
breach of such agreements or licenses. You may not: remove or modify any
program markings or any notice of HEMR’s or its licensors’ proprietary rights;
make the programs or materials resulting from the services available in any
manner to any third party for use in the third party’s business operations
(unless such access is expressly permitted for the specific program license
or materials from the services You have acquired); modify, make derivative
works of, disassemble, reverse compile, or reverse engineer any part of the
services (the foregoing prohibition includes but is not limited to review of data
structures or similar materials produced by programs), or access or use the
services in order to build or support, and/or assist a third party in building or
supporting, products or services competitive to HEMR; disclose results of
any services or program benchmark tests without HEMR’s prior written
consent; and license, sell, rent, lease, transfer, assign, distribute, display,
host, outsource, disclose, permit timesharing or service bureau use, or
otherwise commercially exploit or make the services, HEMR programs or
materials available, to any third party other than, as expressly permitted
under the terms of the agreement.
This Section 8(b) sets forth Your sole and exclusive
remedy for infringement or misappropriation of third party rights. If the
Application(s) is determined by a court of competent jurisdiction to infringe a
U.S. patent, copyright or trade secret, or in HEMR’s opinion is likely to
become the subject of a claim of infringement or violation, HEMR may, at its
option, procure for You the right to continue using the Application(s) or
Service, or remove, replace or modify the Service so it is not infringing. If
HEMR cannot secure these remedies on a reasonable basis, You must
discontinue use of the Application(s) or Service and HEMR will refund a pro
rata portion of the fees paid for the current period. You shall indemnify HEMR
from any infringement claim to the extent arising from (i) Your use of the
Application(s) or Service after written notice to You to cease such use; (ii) a
use of the Application(s) not in accordance with HEMR’s instructions,
specifications or Documentation; (iii) Your use of other than the current
release of the Application(s) or Service if such claim would have been
avoided by the use of the current release provided by HEMR; (iv) Your use
of the Application(s) or Service with services or products not provided by
HEMR; or (v) HEMR’s compliance with any design, specification or
instruction by You.
You, at Your own cost and expense, will
indemnify, defend and hold harmless, HEMR and its Affiliates, and each of
their respective directors, officers, employees, agents, successors and
assigns, against any judgment, liability, loss, cost and expense, including
reasonable attorney's fees, (collectively, “Claims”) to the extent based upon
or in connection with any breach or alleged breach of Your obligations,
representations or warranties hereunder. In the event any Claim is at any
time brought against HEMR or other person entitled to indemnification (an
), the Indemnified Party will provide written notice of
such Claim to You, and You shall be responsible for immediately paying the
costs of such Claims, including attorney fees expended in defense thereof.
The Indemnified Party may defend or resolve such claim in a manner it
reasonably believes is in its commercial best interest, and it shall not be
obligated to conclude such Claim prior to receiving payment(s) from You as
Export laws and regulations of the United States and any
other relevant local export laws and regulations apply to the Application(s)
and the Services. You agree that such export control laws govern Your use
of the Services (including technical data) and any Services deliverables
provided under this agreement, and You agree to comply with all such export
laws and regulations (including “deemed export” and “deemed re-export”
regulations). You agree that no data, information, software programs and/or
materials resulting from the Application(s) or Services (or direct product
thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without
limitation, nuclear, chemical, or biological weapons proliferation, or
development of missile technology.
(a) Entire Agreement.
This Agreement constitutes the
entire agreement between the You and HEMR with respect to the subject
matter hereof and supersedes all prior negotiations, representations,
agreements and understandings with respect hereto, whether oral or written,
(b) Amendment; Modification.
This Agreement may be
amended, modified or supplemented by the Parties, provided that any such
amendment, modification or supplement shall be in writing and signed by the
Parties. No waiver of any provision of this Agreement shall be binding unless
in writing and signed by both Parties.
Any provisions of this Agreement which are
determined to be invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
A Party’s waiver of any term or condition of this
Agreement shall not be deemed a continuing waiver. The rights set forth in
this Agreement are cumulative and in addition to those otherwise provided
by applicable law and may be exercised concurrently or separately, and the
exercise of any one remedy shall not be deemed an election of such remedy
to the exclusion of other remedies.
You may not assign this Agreement (or any
Attachment) or any of Your rights or obligations hereunder whether
voluntarily, involuntarily, by operation of law or otherwise.
Unless otherwise provided, all notices,
consents or other communications required or permitted to be given under
this Agreement must be in writing and will be deemed to have been duly
given (i) when delivered personally, (ii) three (3) Business Days after being
mailed by first class mail, postage prepaid, or (iii) one Business Day after
being sent by a reputable overnight delivery service, postage or delivery
charges prepaid, to the Parties at their respective addresses stated on the
signature page of this Agreement.
Notwithstanding any legal presumption to the
contrary, the covenants, conditions, representations, indemnities, and
warranties hereunder that by their terms are intended to survive termination,
shall survive termination or expiration of this Agreement or any Attachment.
(h) Press Release.
HEMR may issue a press release
announcing Your use of the Application(s) and Services and may include
Your name in a list of customers HEMR provides prospective customers. You
herby grants HEMR the right to use Your name and logo on the HEMR
website and in HEMR’s marketing materials to identify You as a user of the
Application(s) and Services.
(i) Statistical Information.
HEMR may compile statistical
information related to the Application(s) and the Services, including Your use
thereof, and may make such information publicly available, provided that
such information does not incorporate Your data and/or identify Your
confidential information or include Your name. HEMR retains all intellectual
property rights in such information.
(j) Force Majeure.
If either Party is unable to perform any
of its obligations under this Agreement due to an event beyond the
reasonable control of that Party, including natural disaster, acts of God,
actions or decrees of governmental bodies, act of war, terrorism, failure or
discontinuance of the Internet or failure of communications lines or networks,
that Party will use commercially reasonable efforts to resume performance
of its obligations but will have no liability to the other Party for failure to
perform its obligations under this Agreement for so long as it is unable to do
so as a result of such event. This section does not excuse either party’s
obligation to take reasonable steps to follow its normal disaster recovery
procedures or Your obligation to pay for the Services.
(k) Governing Law and Venue.
This Agreement and all
matters arising out of or relating to this Agreement shall be governed by and
construed in accordance with the laws of the State of California, without
regard to any conflict of law provisions. Any dispute, claim or action brought
in any way arising out of or relating to this Agreement must be brought solely
and exclusively in state or federal having jurisdiction in Ventura County,
California, and each party irrevocably accepts and submits to the sole and
exclusive jurisdiction of each of the aforesaid courts in personam, generally
and unconditionally, with respect to any action, suit, or proceeding brought
by it or against it by the other party. THE PARTIES HERETO TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE
RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
(l) Cost of Litigation.
The prevailing Party in any legal
action or proceeding arising out of or relating to this Agreement will be
entitled to an award of its reasonable legal costs and expenses in connection
(m) Limitation of Action.
Except for actions for
indemnification pursuant to Section 9 hereof, for Your nonpayment of any
amount or Your breach of HEMR’s or a Third-Party Provider’s proprietary
rights, no action, regardless of form, arising out of or relating to this
Agreement may be brought by either party more than one (1) year after the
cause of action has accrued.
(n) Counterparts and Facsimile Delivery.
including these General Terms, may be executed in two or more
counterparts, each of which will be deemed an original and all of which
taken together will be deemed to constitute one and the same document.
The parties may sign and deliver the Agreement, including these General
Terms, by facsimile or email transmission.
The section headings of the Agreement shall
not affect the construction or the interpretation of this Agreement or in any
You agree that any rule of construction to
the effect that ambiguities are to be resolved against HEMR will not be
applied in the construction or interpretation of this Agreement or any other
agreements or documents delivered in connection with the transactions
contemplated by this Agreement. The parties further agree that all references
to, or uses of the term, “including” in this Agreement shall mean “including,
but not limited to.”
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (this “BAA”) is made by and between HEALTHEMEDRECORD, LLC (“HEMR”) and the individual or entity
(“You” or “Your”) which has ordered software as a service by executing the Ordering Document that accompanies and incorporate s this BAA. For
good and valuable consideration, the parties hereto hereby agree as follows:
Each term not otherwise defined herein shall have the
meaning ascribed to such term in the Agreement and HIPAA.
2. Permitted and Required Uses and Disclosures.
(a) Service Offerings. HEMR may Use or Disclose PHI for or on
behalf of You as specified in the Agreement, including, without limitation,
quality measure results, numerator and denominator data and/or patient-
specific data on Medicare and non-Medicare beneficiaries.
(b) Administration and Management of the Application. HEMR may
use and disclose PHI as necessary for the proper management and
administration of the Application(s) and Services. Any Disclosures under
this section will be made only if HEMR obtains reasonable assurances
from the recipient of the PHI that (a) the recipient will hold the PHI
confidentially and will Use or Disclose the PHI only as required by law or
for the purpose for which it was disclosed to the recipient, and (b) the
recipient will notify HEMR of any instances of which it is aware in which
the confidentiality of the information has been breached.
(c)HEMR may Use PHI to provide Data Aggregation services and may
de-identify PHI received or created pursuant to the Agreement and Use such
(d) HEMR may Use PHI to report violations of law to appropriate
Federal and State authorities or in response to any Security Incident or
3. Obligations of HEMR.
(a) Limit on Uses and Disclosures. HEMR will Use or Disclose PHI
only as permitted by this BAA or as required by law, provided that any
such use or disclosure would not violate HIPAA if done by a Covered
Entity, unless permitted under HIPAA for a Business Associate.
(b) Safeguards. HEMR will use reasonable and appropriate
safeguards to prevent Use or Disclosure of the PHI other than as provided
for by this BAA, consistent with the requirements of Subpart C of 45
C.F.R. Part 164 (with respect to Electronic PHI) as determined by HEMR
and as reflected in the Agreement.
(c) Reporting. For all reporting obligations under this BAA, the
parties acknowledge that, because HEMR does not know the exact
nature of PHI contained in any of Your records, it will necessarily not be
possible for HEMR to provide information about the identities of the
Individuals who may have been affected, or a description of the type of
information that may have been subject to a Security Incident,
Impermissible Use or Disclosure, or Breach.
(i) Reporting of Impermissible Uses and Disclosures.
HEMR will report to You any Use or Disclosure of PHI not permitted or
required by this BAA of which HEMR becomes aware.
(ii) Reporting of Security Incidents. HEMR will report to
You on no less than a quarterly basis any Security Incidents involving PHI
of which HEMR becomes aware in which there is a successful
unauthorized access, use, disclosure, modification, or destruction of
information or interference with system operations in an Information
System in a manner that risks the confidentiality, integrity, or availability
of such information. Notice is hereby deemed provided, and no further
notice will be provided, for unsuccessful attempts at such unauthorized
access, use, disclosure, modification, or destruction, such as pings and
other broadcast attacks on a firewall, denial of service attacks, port
scans, unsuccessful login attempts, or interception of encrypted
information where the key is not compromised, or any combination of the
(iii) Reporting of Breaches. HEMR will report to You any
Breach of Your Unsecured PHI that HEMR may discover to the extent
required by 45 C.F.R. § 164.410. HEMR will make such report without
unreasonable delay, and in no case later than 60 calendar days after
discovery of such Breach.
(d) Subcontractors. HEMR will ensure that any subcontractors that
create, receive, maintain, or transmit PHI on behalf of HEMR agree to
restrictions and conditions at least as stringent as those found in this BAA,
agree to implement reasonable and appropriate safeguards to protect PHI
and, if required by law, execute an appropriate Business Associate
(e) Access to PHI. HEMR will make PHI in a Designated Record Set
available to You so that You can comply with 45 C.F.R. § 164.524.
(f) Amendment to PHI. HEMR will make PHI in a Designated Record
Set available to You for amendment and incorporate any amendments to
the PHI, as may reasonably be requested by You in accordance with 45
C.F.R. § 164.526.
(g) Accounting of Disclosures. HEMR will make available to You the
information required to provide an accounting of Disclosures in
accordance with 45 C.F.R. § 164.528 of which HEMR is aware, if
requested by You.
(h) Internal Records. HEMR will make its internal practices, books,
and records relating to the Use and Disclosure of PHI available to the
Secretary of the U.S. Department of Health and Human Services (“HHS”)
for purposes of determining Your compliance with HIPAA. Nothing in this
section will waive any applicable privilege or protection, including with
respect to trade secrets and confidential commercial information.
4. Your Obligations.
(a) Appropriate Use of HIPAA Accounts. You are responsible for
implementing appropriate privacy and security safeguards in order to
protect Your PHI in compliance with HIPAA and this BAA. Without
limitation, You will (a) utilize the highest level of audit logging in
connection with Your use of the Application(s) and Services, and (b)
maintain the maximum retention of logs in connection with Your use of
the Application(s) and Services.
(b)Necessary Consents. You represents and warrants that it has
obtained, or will obtain, any necessary authorizations, consents, and
other permissions that may be required under applicable law prior to
placing Customer Content, including without limitation PHI, within the
database for the Application(s) and Services.
(c)Restrictions on Disclosures. You will not agree to any restriction
requests or place any restrictions in any notice of privacy practices that
would cause HEMR to violate this BAA or any applicable law.
(d)Compliance with HIPAA. You will not request or cause HEMR to
make a Use or Disclosure of PHI in a manner that does not comply with
HIPAA or this BAA.
5. Term and Termination
(a) Term. The term of this BAA will commence on the Effective Date
and will remain in effect until the termination of the Agreement.
(b) Termination. Either party has the right to terminate this BAA for
any reason upon 90 days prior written notice to the other party. A material
breach of this BAA will be treated as a material breach of the Agreement.
(c) Effect of Termination. At termination of this BAA, HEMR, if
feasible, will return or destroy all PHI that HEMR still maintains in any
form and retain no copies of such information or, if such return or
destruction is not feasible, extend the protections of this BAA to the
information and limit further Uses and Disclosures to those purposes that
make the return or destruction of the information infeasible. The parties
acknowledge that it is not feasible for HEMR to destroy or return all PHI
upon termination of this BAA.
6. No Agency Relationship.
As set forth in the Agreement, nothing
in this BAA is intended to make either party an agent of the other. Nothing
in this BAA is intended to confer upon You the right or authority to control
HEMR’s conduct in the course of HEMR complying with the Agreement
You agrees that the terms of this BAA are not
publicly known and constitute HEMR’s Confidential Information under the
8. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET
FORTH IN WRINTING IN THIS BAA, NEITHER PARTY MAKES, AND
EACH PARTY HEREBY EXPRESSLY WAIVES AND DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES REGARDING THIS BAA,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-
INTERFERENCE, DATA SECURITY, SYSTEM AVAILABILITY, LEGAL
COMPLIANCE, SYSTEM INTEGRATION OR IMPLIED WARRANTIES
ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE
OR USAGE OF TRADE.
9. LIMITATION OF DAMAGES.
NEITHER PARTY WILL BE LIABLE
(WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT
LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER
THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR
ENTITY FOR COST OF COVER, LOST PROFITS, OR FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF
BUSINESS OR DATA) ARISING OUT OF THIS BAA.
10. HEMR’S AGGREGATE LIABILITY ARISING UNDER OR WITH
RESPECT TO THIS BAA WILL IN NO EVENT EXCEED ONE HUNDRED
PERCENT (100%) OF THE NET OPERATING INCOME OF HEMR FROM
THE FEES PAID BY YOU TO HEMR DURING THE THREE (3) MONTHS
PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.
11. Entire Agreement; Conflict.
Except as amended by this BAA, the
Agreement will remain in full force and effect. This BAA, together with
the Agreement as amended by this BAA: (a) is intended by the parties
as a final, complete and exclusive expression of the terms of their
agreement; and (b) supersedes all prior agreements and understandings
(whether oral or written) between the parties with respect to the subject
matter hereof. If there is a conflict between the Agreement, this BAA or
any other amendment or BAA to the Agreement or this BAA, the
document later in time will prevail.
12. Counterparts and Facsimile Delivery.
This BAA may be executed in two or more counterparts, each of which will be deemed an original and
all of which taken together will be deemed to constitute one and the same
document. The parties may sign and deliver this BAA by facsimile or email