(a) “Agreement” means these Terms and Conditions, the applicable Monthly Service Agreement(s), and the Business Associate Agreement.
(b) “Applicable Law” means all applicable federal, state and local laws, rules and regulations, and industry standards, including the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and other applicable privacy laws, whether foreign or domestic, and all of their respective implementing regulations.
(c) “Authorized Users” means: (i) Customer’s employees; and (ii) contractors authorized by Customer to access the Software who, prior to obtaining access to the Software, have executed a non-disclosure agreement that protects PPS’s Confidential Information to the same extent as this Agreement, in each case registered in the database with a unique UserID and a unique password.
(d) “Business Associate Agreement” means that certain business associate agreement executed by PPS and Customer.
(e) “Confidential Information” means proprietary or non-public information of PPS, including all trade secrets, know-how, inventions, processes, technical data or specifications, drawings, business or financial information, pricing information, product or marketing plans, customer or supplier information, together with all analyses, compilations, reports, memoranda, notes and other written or electronic materials which contain, reflect or are based, in whole or in part, upon such information, including the PPS Content and the Software, including any software code and all algorithms, APIs, data materials, methods, techniques, and processes revealed or utilized therein. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach by Customer; (ii) PPS regularly discloses to third parties without restriction on disclosure; (iii) Customer obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; or (iv) is independently developed by Customer without use of Confidential Information.
(f) “Customer” means the entity named in the applicable Monthly Service Agreement.
(g) “Customer Data” means information provided, entered or uploaded by or on behalf of the Customer or its Authorized Users.
(h) “Customizations” means any components deployed in the hosted environment for the Software other than the generally available Software or components that PPS may develop under a Monthly Service Agreement for Customer. Customizations include code, databases or third party extensions that are not included in the generally available Software.
(i) “Fees” means the fees and other payments, however characterized, set forth in the applicable Monthly Service Agreement.
(j) “First Available Use” means the addition of a new disease state or Service to the Customer and first availability of such disease state or Service to Customer. This consists of integrating the various practice systems such as Electronic Medical Record (EMR) and Practice Management (PM) systems.
(k) “Intellectual Property” means any and all intellectual property rights, including in patents, copyrights, trademarks, service marks, software, know-how, data and databases, business methods, models, formulas, algorithms, proprietary information, and trade secrets.
(l) “Monthly Service Agreement” means each order form, agreement, statement of work, schedule, or similar document (however characterized) executed by both parties, if any, that references these PPS Terms and Conditions.
(m) “Permitted Use” means the use(s) set forth in the applicable Monthly Service Agreement.
(n) “PPS” means Precision Point Specialty, LLC d/b/a PPS Analytics.
(o) “PPS Content” means the PPS content (including, as applicable, any derivatives of Customer Data) set forth in the applicable Monthly Service Agreement, if any.
(p) “Representative” means a party’s employees, agents, subcontractors, affiliates, parents and subsidiaries, in each case to the extent such person is providing services solely to, and for the benefit of, such party (and excluding, in all cases, the other party to this Agreement).
(q) “Services” means the services and Software set forth under the applicable Monthly Service Agreement.
(r) “Software” means collectively or individually the computer software programs made available to Customer under a Monthly Service Agreement, and any Customizations.
(s) “Term” means the initial service term and any renewal terms under the applicable Monthly Service Agreement.
(t) “UserID” means a unique user identification credential assigned to an Authorized User to be used in combination with a unique password to access the Software.
2. License and Intellectual Property.
(a) License to Software and PPS Content. Subject to the terms and conditions of this Agreement and the applicable Monthly Service Agreement, PPS hereby grants to Customer a non-exclusive, non-transferable, revocable, personal, limited license (without the right to sublease or sublicense) to access and use, as applicable, the Software, PPS Content, and the Services during the Term, in an operating environment hosted by PPS (directly or through third parties engaged by PPS), for the Permitted Use. If the Software is provided on software media, Customer may make one machine-readable copy of the Software for backup purposes only. The backup copy must include all copyright information contained on the original. Any rights not expressly granted in this Agreement, including rights in the Software, PPS Content, Confidential Information and Services, are expressly reserved by PPS.
(b) Customer Data. By entering the Customer Data into the Software or otherwise making the Customer Data available to PPS (including under any Monthly Service Agreement or otherwise permitting PPS to enter such Customer Data into the Software), Customer grants to PPS a non-exclusive, sublicensable (through multiple levels), irrevocable, royalty-free, fully paid-up, worldwide right and license to use, disclose, transmit, reproduce, display, sell, distribute, adapt, modify, create derivative works from, and otherwise exploit the Customer Data for purposes of (i) providing the Services, and, (ii) subject to the Business Associate Agreement with respect to PHI (as defined therein) (x) for analysis and improvement of the Services and (y) to create analyses, summaries, reports and other documents for itself and to make available (by license, sale, or otherwise) to third parties, and the foregoing shall be, and be deemed, PPS Content.
(c) Restrictions on Use of the Software, PPS Content and Services. In no event shall Customer access the Software or PPS Content on any environment outside the hosted environment selected by PPS as part of the Services. In no event shall Customer or its Authorized Users possess or control the Software or any related software code. Customer is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of the Software. None of the PPS Content may be reproduced, transcribed, stored in a retrieval system, translated into any spoken language or computer language, retransmitted in any form or by any means (electronic, mechanical, recorded, or otherwise), resold, or redistributed without the prior written consent of PPS; provided, however, that Customer may reproduce limited excerpts of PPS Content obtained from PPS sources or databases for internal business use only, provided that each such reproduction contains the copyright and other proprietary notices found in the Software and applicable PPS Content. Customer is prohibited from using the Software or PPS Content to provide service bureau services to third parties. Customer will not allow the Software to be used by, or disclose all or any part of the Software to, any person except Authorized Users. Customer acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Software and Customer will neither export or re-export, directly or indirectly, the Software, nor any direct product thereof in violation of such laws, or use the Software or PPS Content for any purpose prohibited by such laws.
(d) Intellectual Property Notices. Customer is prohibited from removing or altering any of the Intellectual Property notice(s) embedded in the Software or PPS Content or that PPS otherwise provides with the Services. Customer must reproduce the unaltered Intellectual Property notice(s) in any full or partial copies that Customer makes of any PPS Content.
(e) Ownership. Use of the Software, PPS Content and Services does not grant any ownership rights in or to the Software, PPS Content, the Services, or Confidential Information, all of which are owned exclusively by PPS. Customer hereby assigns to PPS all right, title, and interest in and to any modifications Customer makes to the Software, PPS Content or Confidential Information whether or not such modifications are permitted, and further agrees to take any steps required by PPS to effectuate such assignment.
(f) Ownership of Customer Data. Subject to Sections 2(b) and (h), Customer retains ownership of the Customer Data; provided further, that, subject to the Business Associate Agreement, any Customer Data once de-identified or aggregated is no longer Customer Data.
(g) Feedback. All Customer (i) suggestions for correction, change or modification to the Services, Software, or other PPS Intellectual Property; (ii) evaluation data; (iii) evaluations; (iv) benchmark tests; and (v) other feedback, information and reports on the performance or functionality of the Services, Software or other PPS Intellectual Property provided to PPS hereunder (collectively, “Feedback”), will be the property of PPS and Customer shall and hereby does assign any rights in such Feedback to PPS. Customer agrees to assist PPS, at PPS’s expense, in obtaining intellectual property protection for such Feedback, as PPS may reasonably request.
(a) Scope of Services. During the Term and subject to the terms and conditions of this Agreement, PPS shall provide certain services as agreed upon between PPS and Customer, as more fully described in one or more Monthly Service Agreements (the “Services”) that expressly reference this Agreement and include: (a) a detailed description of the Services to be provided by PPS; (b) responsibilities of Customer; and (c) the fees for such Services. The manner and means used by PPS to perform the Services, including the specific personnel deployed on any project, are in the sole discretion and control of PPS, provided that PPS will perform the Services in strict accordance with this Agreement and the applicable Monthly Service Agreement.
(b) Support. PPS shall provide Customer with its standard support during PPS’s normal business hours (“Support”).
(c) Exclusions. PPS shall have no obligation to correct a problem caused by Customer’s negligence, Customer’s equipment malfunction or other causes beyond the control of PPS.
(d) Customizations. Customizations are not permitted absent PPS’s prior written consent. If permitted, Customizations may only be created and deployed by PPS, and shall be documented in a Monthly Service Agreement.
(e) User Accounts. Customer is responsible for informing PPS of the identities and authority/permission levels of its Authorized Users and related UserIDs, and for immediately informing PPS in writing in advance of the departure or chance in authority/permission (and date of such departure or change) of any Authorized User, in order to allow PPS to make the necessary changes to Authorized Users; PPS will make the necessary changes within five (5)_business days, during which period Customer will remain responsible and liable for the Authorized User’s UserIDs. Customer shall ensure that each Authorized User is informed of, and complies with, the terms and conditions of this Agreement. Customer is responsible for maintaining the confidentiality of Customer’s UserIDs and passwords and shall cause its Authorized Users to maintain the confidentiality of their UserIDs and Passwords. Customer is responsible for all uses of and activities undertaken with UserIDs registered on Customer’s account. Customer agrees to immediately notify PPS of any unauthorized use of Customer’s UserIDs of which Customer becomes aware.
(f) Customer Responsibilities and Covenants. Customer shall, at all times, (i) be solely responsible and liable for all use (whether or not authorized) of the Software, PPS Content and Services under Customer’s account and UserIDs, including any unauthorized access; (ii) be responsible and liable for the accuracy and completeness of all Customer Data, and shall promptly update such Customer Data to ensure such accuracy and completeness; (iii) use Software, PPS Content and Services only in strict accordance with this Agreement, PPS’s applicable policies, and the Acceptable Use Policy available at https://portal.ppsanalytics.com/home/eula, as may be updated from time to time by PPS (the “Acceptable Use Policy”); (iv) comply with Applicable Law, including by (x) ensuring that Customer has all necessary rights, and can provide such rights to PPS, in the Customer Data, including by obtaining all necessary consents, authorizations, notices and approvals (including, prior to using the Software, PPS Content or Services to communicate an individual’s personal health information by SMS text or regular email, by informing the individual that SMS text and regular email are not secure methods of communication, and obtaining the individual’s prior written consent to the use of such methods of communication), and (y) not submitting any Customer Data that is illegal, defamatory, or that infringes any third party proprietary rights; (v) be solely responsible and liable for all acts, omissions and activities of Authorized Users and Representatives, including their compliance with this Agreement, the applicable PPS policies, and the Acceptable Use Policy; and (iv) take all reasonable steps to ensure that no unauthorized person shall have access to the Software, PPS Content or Services. Customer understands, and shall ensure that each Authorized User understands, that provision of the UserID and password may be required prior to each use of the Software, PPS Content or Services. Customer acknowledges and agrees that any unauthorized use or disclosure of or relating to the Software, PPS Content, or Services would irreparably harm PPS Analytics, and upon learning of any of the foregoing, Customer shall promptly notify PPS of the foregoing, furnish details of such occurrence, assist in preventing any further unauthorized activity, and cooperate fully in any investigation, litigation, or proceedings undertaken reasonably necessary to protect PPS’s rights.
(g) Use of Professional Judgment. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES, THAT THE SOFTWARE AND PPS CONTENT ARE DECISION SUPPORT TOOLS, AND THAT CUSTOMER AND EACH AUTHORIZED USER MUST VALIDATE ALL DECISIONS IN ACCORD WITH THEIR PRACTICE OR PROVIDER BEFORE RECOMMENDING A TREATMENT, AND PPS DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ALL LIABILITY FOR ANY DETERMINATIONS OR PRESCRIBED TREATMENTS. CUSTOMER AND EACH AUTHORIZED USER EXPRESSLY ASSUMES LIABILITY FOR ALL TREATMENT DETERMINATIONS AND RECOMMENDATIONS. PPS HAS CONSCIENTIOUSLY AND CAREFULLY TRIED TO PRESENT THE PPS CONTENT IN CONFORMANCE WITH THE STANDARDS OF PROFESSIONAL PRACTICE AT THE TIME SUCH PPS CONTENT IS PROVIDED, HOWEVER CUSTOMER AND EACH AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT (I) CUSTOMER IS NOT RESPONSIBLE AND LIABLE FOR THE PPS CONTENT, AS FURTHER PROVIDED IN SECTION 5(C), AND (II) STANDARDS AND PRACTICES CHANGE AS NEW DATA BECOMES AVAILABLE, AND ANY AUTHORIZED USER RECEIVING ACCESS TO THE SOFTWARE SHOULD CONSULT A VARIETY OF SOURCES. IN ADDITION, WITH RESPECT TO PRESCRIPTION MEDICATION, TREATMENT METHODOLOGIES, AND SIMILAR PROTOCOLS, THE AUTHORIZED USER OR PROFESSIONAL RECEIVING ACCESS TO THE PPS CONTENT IS ADVISED TO CONSULT THE INFORMATION ACCOMPANYING ANY DRUG OR TREATMENT TO VERIFY CONDITIONS OF USE AND IDENTIFY ANY CHANGES, INCLUDING DOSAGE SCHEDULE, CONTRAINDICATIONS, AND WARNINGS. CUSTOMER AND EACH AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND PPS CONTENT ARE NO SUBSTITUTE FOR INDIVIDUAL PATIENT ASSESSMENT BASED UPON A HEALTHCARE PROVIDER’S EXAMINATION OF EACH PATIENT AND CONSIDERATION OF DATA AND OTHER FACTORS UNIQUE TO THE PATIENT. THE SOFTWARE AND PPS CONTENT SHOULD BE USED AS A TOOL TO HELP THE AUTHORIZED USER REACH OR UNDERSTAND DIAGNOSTIC AND TREATMENT DECISIONS, BEARING IN MIND THAT INDIVIDUAL AND UNIQUE CIRCUMSTANCES MAY LEAD THE AUTHORIZED USER OR OTHER HEALTHCARE PROFESSIONAL TO REACH DECISIONS NOT PRESENTED IN THE SOFTWARE OR PPS CONTENT.
(h) Customer Restrictions. Customer shall not, and shall ensure that no Authorized User does, directly or indirectly: (i) disclose, sublicense, assign, or transfer any account or any UserID and/or password related to the Software, PPS Content, or Services; (ii) copy or reproduce the Software, Confidential Information, or PPS Content, or any portion of the foregoing, except as expressly set forth herein; (iii) modify or create derivative works of or based upon the Software, PPS Content, Services, or Confidential Information, or access any of the foregoing to develop a competing product or service; (iv) decompile, disassemble, or reverse engineer the Software or Services in whole or in part; (v) defeat, disable, or circumvent any protection mechanism related to the Software, PPS Content, or Services; (vi) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Software, PPS Content, Confidential Information or Services, or distribute any of the foregoing; (vii) make the Software, PPS Content, Confidential Information or Services, or any portion of the foregoing, accessible to the public or third parties or allow any third party to use any of the foregoing; (viii) publish or otherwise communicate any review of, or information about, the operation or performance of the Software, PPS Content or Services to any third party without the prior written consent of PPS; (ix) use the Software, PPS Content or Services in connection with any application, process, service or operations where failure or malfunction could lead to possible loss of life or catastrophic property damage; and (x) attempt to use the Software or Services to access or allow access to Emergency Services (meaning, an official government-sponsored emergency telephone number (such as 911 in North America or 112 in the European Union and other locations worldwide) which is used to dispatch professional emergency responders).
4. Payment and Taxes.
(a) Payment. Customer shall pay PPS (i) all recurring, monthly and usage Fees and Taxes (if applicable) in advance and (ii) all non-recurring and other Fees and Taxes within thirty (30) days after receipt of the applicable invoice. All Fees and Taxes are non-refundable. Late payments are subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law. Notwithstanding anything to the contrary in this Agreement, PPS reserves the right to suspend access to the Software, PPS Content and/or Services in the event of any past-due Fees or Taxes.
(b) Taxes. Customer is responsible for paying all taxes relating to this Agreement, the Software, PPS Content or the Services (“Taxes”), except for PPS’s income and similar taxes. Taxes are not included in the Fees, and will be invoiced by PPS.
(c) Consumer Price Index Adjustment. All Fees will be reviewed and adjusted annually (based on the start of the Term under the applicable Monthly Service Agreement) to reflect increases in the Consumer Price Index published by the United States Department of Labor or 3%, whichever is higher.
5. Warranties, Disclaimer of Warranties, and Remedies.
(a) PPS Warranties. PPS warrants that the Software licensed to Customer will operate without a reproducible material failure to conform to the published documentation (if any) for the applicable Software for a period of ninety (90) days from the First Available Use. PPS’s sole obligation with respect to a breach of the foregoing warranty shall be to repair or replace the Software giving rise to the breach of warranty. If PPS is unable to repair or replace such Software within a reasonable period of time, then PPS shall refund the applicable monthly service fees paid for such non-conforming Software and may terminate the license for such Softare. The remedies in this Section 5(a) are exclusive and in lieu of all other remedies, and represent PPS’s sole obligation and liability, for a breach of the foregoing warranty. Customer must provide notice to PPS of any warranty claim within the warranty period set forth above.
(b) Limited Services Warranty. PPS warrants to Customer that, PPS will render the Services with commercially reasonable care and skill.
(c) Customer Representations and Warranties. Customer represents, covenants and warrants that: (i) it will use the Software and Services only in compliance with this Agreement, Customer’s applicable privacy notices and policies, and all Applicable Laws and, without limiting the foregoing,(x) it has all necessary rights, and can provide such rights to PPS, in the Customer Data, including by obtaining all necessary consents, authorizations, notices and approvals (including, prior to using the Software, PPS Content or Services to communicate an individual’s personal health information by SMS text or regular email, by informing the individual that SMS text and regular email are not secure methods of communication, and obtaining the individual’s prior written consent to the use of such methods of communication); (y) in the event it uses the Software or Services for telemarketing, that Client will comply with applicable state and federal “Do Not Call” and telemarketing registration requirements; and (z) it will use the Software and Services only for “opt-in” lists, and not any purchased or acquired lists of individuals, and not include any individuals who have not voluntarily opted in or who have requested to be opted-out.
(d) PPS Content. While care has been taken in organizing and presenting the PPS Content, PPS DOES NOT WARRANT OR GUARANTEE THE CORRECTNESS, ACCURACY OR TIMELINESS OF ANY PPS CONTENT. PPS DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY OBLIGATION TO OBTAIN OR INCLUDE ANY INFORMATION OTHER THAN AS IT PROVIDES, IN ITS DISCRETION, IN THE PPS CONTENT. BY MAKING PPS CONTENT AVAILABLE, PPS IS NOT ENDORSING OR ADVOCATING ANY PRODUCT, SERVICE, OR TREATMENT, NOR IS PPS RESPONSIBLE OR LIABLIE FOR MISUSE OF ANY PRODUCT, SERVICE, OR TREATMENT DUE TO, OR AS A CONSEQUENCE OF, ANY ERROR OR INACCURACY IN THE PPS CONTENT. ANY PRODUCT, SERVICE OR TREATMENT INFORMATION SHOULD BE OBTAINED DIRECTLY FROM THE MANUFACTURER OR PROVIDER, AND INDEPENDENTLY VERIFIED.
(e) Disclaimer of Warranties. The limited warranties in this Section are made to Customer exclusively and are in lieu of all other representations and warranties. THE SOFTWARE, PPS CONTENT AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND. PPS MAKES NO, AND EXPRESSLY DISCLAIMS ALL, OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, PPS CONTENT OR SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR ANY ORDER FORM IN WHOLE OR IN PART. WITHOUT LIMITING THE FOREGOING, PPS EXPRESSLY DISCLAIMS ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. PPS DOES NOT REPRESENT OR WARRANT, AND EXPRESSLY DSICLAIMS ALL REPRESENTATIONS AND WARRANTIES, THAT THE SOFTWARE, PPS CONTENT OR SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET CUSTOMER’S REQUIREMENTS. FURTHERMORE, PPS DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, THE PPS CONTENT, OR THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. PPS IS NOT RESPONSIBLE FOR ANY THIRD PARTY SOFTWARE OR HARDWARE, AND WILL HAVE NO LIABILITY OF ANY KIND FOR CUSTOMER’S USE OF SUCH THIRD PARTY SOFTWARE OR HARDWARE, AND MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO SUCH THIRD PARTY SOFTWARE OR HARDWARE. NO SALESPERSON OR OTHER REPRESENTATIVE OF ANY PARTY INVOLVED IN THE PROVISION OF THE SOFTWARE, PPS CONTENT, OR SERVICES IS AUTHORIZED TO MAKE ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, PPS CONTENT, OR THE SERVICES BEYOND THOSE CONTAINED IN THIS AGREEMENT. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES, ARE EXPRESSLY DISCLAIMED, AND SHALL NOT BE RELIED UPON BY CUSTOMER OR ANY AUTHORIZED USER, AND ARE NOT A PART OF THIS AGREEMENT.
(f) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEGE AND AGREE THAT THE LIMITATIONS SPECIFIED IN SECTIONS 5 AND 17 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER CUSTOMER HAS ACCEPTED ANY SOFTWARE, PPS CONTENT OR SERVICE UNDER THIS AGREEMENT.
(g) USE AT CUSTOMER’S AND AUTHORIZED USERS’ OWN RISK. CUSTOMER, AND EACH AUTHORIZED USER, EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE, THE PPS CONTENT AND THE SERVICES IS AT CUSTOMER’S AND THE AUTHORIZED USER’S SOLE RISK. PPS DOES NOT DIRECTLY OR INDIRECTLY PRACTICE MEDICINE, PROVIDE MEDICAL ADVICE, OR DISPENSE MEDICAL SERVICES, AND ASSUMES NO LIABILITY FOR THE PPS CONTENT. CUSTOMER, AND EACH AUTHORIZED USER, ASSUMES FULL RESPONSIBILITY FOR THE APPROPRIATE USE OF MEDICAL INFORMATION CONTAINED IN THE SOFTWARE, PPS CONTENT, AND SERVICES, AND AGREES TO HOLD PPS, ITS AFFILIATES, AND ANY OF THEIR RESPECTIVE SERVICE AND CONTENT PROVIDERS, HARMLESS FROM ANY AND ALL CLAIMS OR ACTIONS ARISING FROM USER’S USE OF THE SOFTWARE, PPS CONTENT, OR SERVICES.
(h) HIGH RISK ACTIVITIES. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS ELECTRONIC MEDICAL RECORDS SYSTEMS, DIRECT LIFE SUPPORT MACHINES, OR SINGLE/NON-REDUNDANT HEALTH CARE-RELATED SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). ACCORDINGLY, PPS DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. CUSTOMER AGREES THAT PPS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.
(i) APPLICABLITY OF EXCLUSIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MIGHT NOT APPLY TO CUSTOMER OR THE APPLICABLE AUTHORIZED USER, AND CUSTOMER AND AUTHORIZED USERS, MAY HAVE OTHER LEGAL RIGHTS RELATED TO THIS AGREEMENT THAT MAY VARY FROM JURISDICTION TO JURISDICTION.
6. Confidential Information. The Confidential Information disclosed under this Agreement may be used, disclosed or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement. Except as otherwise permitted under this Agreement, Customer will not disclose to any third party, or make any use of the Confidential Information. Customer will use at least the same standard of care to maintain the confidentiality of the Confidential Information that it uses to maintain the confidentiality of its own sensitive confidential and proprietary information, but in no event less than reasonable care. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Customer’s receipt of that item; provided, however, that Customer’s obligations with respect to the Software, PPS Content and all PPS trade secrets, will survive in perpetuity. Customer shall be responsible for the breach of the confidentiality terms contained in this Section 6 by any of its directors, officers, employees, Authorized Users, agents, accountants and advisors. If Customer receives any legal request or process in any form seeking disclosure of Confidential Information, or if Customer should be advised by counsel of any obligation to disclose such Confidential Information, Customer shall (if allowed by law) provide PPS with prompt notice of such request or advice so that PPS may seek a protective order or pursue other appropriate assurance of the confidential treatment of the Confidential Information. Regardless of whether or not a protective order or other assurance is obtained, Customer shall furnish only that portion of the Confidential Information that is legally required to be furnished and to use reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished.
(a) By Customer. Customer will defend, indemnify and hold PPS and its affiliates, and their respective service and content providers, harmless from and against any damage, liability, loss, cost and expense (including attorneys’ fees and expenses, including any incurred in enforcement of this provision) (“Liabilities”) to the extent arising from (i) Customer’s breach of its obligations under Section 3, (ii) Customer’s breach of its representations, warranties or covenants; (iii) the acts or omissions of Authorized Users, (iv) any use of the Services by or through any Customer UserID, (v) any claim or assertion that Customer’s or any Authorized User’s use of the Services violates any Applicable Law; (vi) the Customer Data or use thereof, or (vii) matters described in Section 5(g) and (h). Customer’s obligations under this indemnification are expressly conditioned on the following: (x) PPS must promptly notify Customer of any such claim; provided that any delay shall not relieve Customer of its obligations hereunder except, and solely to the extent that, such delay prejudices Customer’s defense; (y) Customer has control of the defense of any such claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in any adverse impact to PPS or its operations, payment of money by PPS, or an admission of guilt by PPS (if PPS chooses to represent its own interests in any such action, PPS may do so at its own expense); (z) PPS must reasonably cooperate with Customer, at Customer’s expense, to facilitate the settlement or defense of the claim.
(b) By PPS. PPS will defend, indemnify and hold Customer harmless from and against any Liabilities to the extent arising from a third party claim against Customer that the Software infringes any U.S. Intellectual Property of others. PPS’s obligations under this indemnification are expressly conditioned on the following: (x) Customer must promptly notify PPS of any such claim; (y) Customer must, in writing, grant PPS sole control of the defense of any such claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in payment of money by Customer or an admission of guilt by Customer (if Customer chooses to represent its own interests in any such action, Customer may do so at its own expense, but such representation must not prejudice PPS’s right to control the defense of the claim and negotiate its settlement or compromise); (z) Customer must reasonably cooperate with PPS to facilitate the settlement or defense of the claim. PPS will not have any liability hereunder to the extent the claim arises from (a) any modification of the Software by, on behalf of, or at the request of Customer; or (b) the use or combination of the Software with any computer, computer platform, operating system and/or data base management system other than provided by PPS. If any Software is, or in PPS’s opinion is likely to become, the subject of an Intellectual Property infringement claim, then PPS, at its sole option and expense, will either: (A) obtain for Customer the right to continue using the Software under the terms of this Agreement; (B) replace the Software with products that are substantially equivalent in function, or modify the Software so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Customer the un-used portion of the Services fee, if any, paid to PPS for the Software giving rise to the infringement claim, and discontinue Customer’s use of such Software. THE FOREGOING SETS FORTH PPS’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INTELLECTUAL PROPERTY.
8. Termination and Suspension.
(a) Termination for Breach. If either party breaches any material term or condition of this Agreement or a Monthly Service Agreement (including any obligation to pay Fees), and fails to remedy such breach within thirty (30) days after receipt of written notice of such breach, the other party may terminate this Agreement and/or any or all Monthly Service Agreements by written notice. Notwithstanding the foregoing, to the extent such material breach cannot be remedied through efforts of the breaching party, the other party has the right to terminate this Agreement (including all Monthly Service Agreements hereunder) by written notice; any repeated late payment shall be deemed a material breach incapable of remedy for purposes of the foregoing.
(b) Termination for Convenience. Either party may terminate this Agreement or any Monthly Service Agreement(s) for any reason upon ninety (90) days written notice to the other party.
(c) Effect of Termination. Upon expiration or termination of this Agreement by either party, (i) Customer’s license to access and use the Software, PPS Content and Services shall immediately terminate as of the effective date of such termination; (ii) Customer shall immediately pay to PPS any Fees set forth in the applicable Monthly Service Agreement; and (iii) PPS will delete all Customer Data within ninety (90) days after the effective date of such termination. Termination of this Agreement will not release either party from making payments which may be owing to the other party under the terms of this Agreement through the effective date of such termination. Termination of this Agreement will be without prejudice to the terminating party’s other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein. Should Customer wish to renew after termination or expiration, renewal will be a new engagement and will need a new Monthly Service Agreement and be considered a new onboarding.
(d) Suspension. PPS has the right to suspend any or all Services (i) if it reasonably suspects a breach by Customer of any of its obligations under Sections 2 and 3 or (ii) failure to make any payment when due, if such failure has not been cured within five (5) business days after PPS provides written notice of such failure.
(e) Effect of Suspension. The suspension of Services, will result in the inaccessibility of the Services and data to Customer, without the removal of Software or data. Patient information will continue to be extracted and analyzed by PPS, however Customer access to the PPS Portal and Reporting will be removed. Removal of suspension shall require cure (or waiver by PPS in its sole discretion) of the applicable breach or failure, and payment of all outstanding Fees.
(f) Copy of Customer Data. After termination or expiration of this Agreement, PPS shall reasonably promptly make a copy of the then-current Customer Data available to Customer as a structured multi-file, CSV export. In the event that Customer requests the return of Customer Data in an alternate format or requires any transition or other services, PPS’s provision of such services shall be subject to (i) the availability of PPS resources to provide such information and services and (ii) mutual agreement by PPS and Customer as to the scope, fees and expenses with respect to such services, which may include payment in advance.
(g) Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, all disclaimers and limitations of liability, and such other terms which by their nature survive termination (including Sections 2(b), 2(c), 2(e), 2(f), 2(g), 3(f), 3(h), 4, 5(d)-(i), 6, 7, 8(c), 8(f), 8(g), 10, and 13-20) will survive termination or expiration of this Agreement.
9. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier. Notices must be sent (i) to PPS at firstname.lastname@example.org and (ii) to Customer at its address shown on the applicable Monthly Service Agreement, or in each case, to such other place as the party may subsequently designate for its receipt of notices in accordance with this Section.
10. Non-Solicitation. For the duration of this Agreement and a period of one (1) year after completion of services or termination, Customer and its affiliates shall not employ or engage, or solicit for employment or engagement, of any PPS personnel who performed Services under this Agreement or any Monthly Service Agreement.
11. Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including acts of god, war, terrorist acts, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing (“Force Majeure”).
12. Independent Contractors. The parties are acting as independent contractors. Nothing in this Agreement shall be construed or deemed to create an employer/employee, principal/agent, partnership, joint venture or any relationship between PPS and Customer other than that of independent entities contracting with each other solely for the purpose of carrying out the terms and conditions of this Agreement. Neither party to this Agreement shall have any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other party to this Agreement, except as expressly set forth herein.
13. Assignment. Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of PPS, whether by operation of law or otherwise, including in connection with a change in control, merger, acquisition, consolidation, asset sale or other reorganization, and any attempt at such assignment or transfer will be void. PPS may not assign this Agreement without the prior written consent of Customer; provided, however that PPS may assign this Agreement to an affiliate or in the event of a sale or transfer of PPS or all or substantially all of the assets of PPS related to the applicable Monthly Service Agreement.
14. No Waiver. A party’s failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.
15. Choice of Law; Binding Arbitration; Waiver of Jury Trial; Severability.
(a) This Agreement and all claims relating to or arising out of this Agreement, or breach hereof, the Software, PPS Content or Services, whether in contract, tort or otherwise, shall be governed by the laws of the State of Ohio, without application of any conflict of laws provisions thereof. Subject to the arbitration provision below, each party agrees to the exclusive venue and jurisdiction of the applicable state or federal courts sitting in Independence, Ohio or, if applicable, Cuyahoga County, Ohio, and each party hereby waives any defenses or objections based on lack of jurisdiction, improper venue, and/or forum non conveniens.
(b) Except for claims subject to Section 16, any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between PPS and Customer (or its successors or assigns) shall exclusively be settled through binding and confidential arbitration to take place in Independence, Ohio, or another mutually-agreed location within Cuyahoga County, Ohio. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Unless otherwise agreed upon by the parties in writing, the arbitration will be conducted before one arbitrator and will be governed by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes. To the fullest extent permitted by applicable law, PPS and Customer must abide by the following rules: (1) ANY CLAIMS BROUGHT BY CUSTOMER OR PPS MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) the arbitration shall be confidential, and neither Customer nor PPS may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (4) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (5) each side shall pay its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
(c) EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, CLAIM OR PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET ANY RIGHTS OR REMEDIES ARISING HEREUNDER, RELATING TO OR IN CONNECTION WITH THE SOFTWARE, PPS CONTENT, SERVICES OR THE AGREEMENT.
(d) If any portion of this Agreement shall be invalid or unenforceable, such portion shall be ineffective only to the extent of any such invalidity or unenforceability, and the remaining portions shall remain in full force and effect.
16. Irreparable Harm; Injunctive Relief. Customer agrees that PPS would be irreparably harmed by any use, disclosure, reproduction, distribution or other exploitation of the Software, PPS Content, Services or Confidential Information in any manner not in accordance with the terms of this Agreement, and would suffer injuries for which damages at law would be inadequate. Notwithstanding anything to the contrary in this Agreement, Customer agrees that PPS shall have the right to assert any remedy available to it to prevent the foregoing, including the right to injunctive or other equitable relief, without obligation for PPS to post a bond, from a court of competent jurisdiction to prevent such unauthorized use, disclosure, reproduction, distribution or other exploitation the Software, PPS Content, Services or Confidential Information.
17. LIMITATIONS OF LIABILITY.
(A) LIMITED LIABILITY. THE TOTAL AGGREGATE LIABILITY OF PPS, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE LICENSORS, VENDORS AND SERVICE PROVIDERS IN CONNECTION WITH OR RELATED TO THE SOFTWARE, THE PPS CONTENT, THE SERVICES, CUSTOMER DATA, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED THE FEES PAID TO PPS HEREUNDER FOR THE APPLICABLE SOFTWARE, PPS CONTENT OR SERVICE DURING THE SIX-MONTH PERIOD PRIOR TO WHICH SUCH LIABILITY FIRST AROSE.
(B) EXCLUSION OF DAMAGES. IN NO EVENT WILL PPS, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE LICENSORS, VENDORS AND SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER PPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
18. Construction. Captions or headings, as used in this Agreement or Monthly Service Agreement, are for the convenience of reference only and shall not be deemed or construed as in any way limiting or expanding the language of the provision to which such captions may refer. The words “include,” “includes” and “including” shall be deemed to be followed by “without limitation.” This Agreement has been negotiated at arms’ length between parties of equal bargaining power with access to counsel of their choosing. Neither this Agreement nor any provision hereof shall be construed on the basis of its draftsperson.
19. General. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. In the event of a conflict between a provision of these Terms and Conditions, a Monthly Service Agreement, and/or the Business Associate Agreement, the following order of precedence shall apply: first, the Business Associate Agreement, with respect to PHI; second, the applicable Monthly Service Agreement, with respect to such Monthly Service Agreement only, and only to the extent that such provision expressly supersedes these Terms and Conditions; and lastly, these Terms and Conditions. Any purchase order or similar document, which may be issued by Customer in connection with this Agreement, does not modify, supplement or add terms to this Agreement. Each party shall be responsible and liable for the acts and omissions of its Representatives to the same extent as if those acts or omissions were those of such party directly. This Agreement and any signed agreement or instrument entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of digital imaging, electronic mail or a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. This Agreement and all Monthly Service Agreements may be signed in counterparts.
20. Modification of PPS Terms and Conditions. PPS may change these PPS Terms and Conditions from time to time by posting revised terms and conditions at https://portal.ppsanalytics.com/terms-and-conditions, and all such changes will be effective upon the earlier of (i) Customer’s (or any Authorized User’s) next access to the Software, PPS Content, or Services, or (ii) thirty (30) days after such change to the Agreement is posted.