LINC HEALTH PRODUCT AND SERIVICES TERMS AND CONDITIONS

These Terms and Conditions are between Transcend Medical, Inc. (“Company”) and the practice as listed above (the “Customer”) (together referred to as the “Parties”, and individually as the “Party”).

BACKGROUND:

• Company uses a technology platform and associated medical device(s), (the “RPM Solution”), to provide tools and technology that allows patients and providers to track and manage a patient’s health through tracking of vital signs and other health data (“Patient Data”).
• Customer is engaged in treating patients who may benefit from the RPM Solution.
• The Parties desire to enter into this Agreement in order to specify the terms and conditions for Customer’s use of the RPM Solution for the benefit of Customer’s patients.

The Parties agree as follows:

1. DEFINITIONS

1.1.         “Authorized User” means (a) the employees, consultants, agents and subcontractors of Customer that are authorized by Customer to access the RPM Solution or Services.

1.2.         “Customer Data” means (a) all data and information Customer submits or transmits to Company, including any PHI (as defined below) and/or Patient Data necessary for the Services; and (b) data, records and information Company generates that relates directly to the Services for Customer under this Agreement, exclusive of information or documentation that Company generates for use in Company’s business generally or for use with multiple customers and exclusive of De-Identified Data as defined below.

1.3.         “De-identified Data” means personally identifiable information (PII) and PHI (defined below) that has been stripped of certain identifiable elements so as to render the individual’s data de-identified.

1.4.         “Devices” means the devices and any other equipment provided by Company to Customer.

1.5.         “Governmental Authority” means the Federal government, any state, county, municipal or local government or any governmental department, political subdivision, agency, bureau, commission, authority, body or instrumentality or court that regulates the RPM applicable party’s activities or operations.

1.6.         “Helpdesk” means the customer support line operated by Company to assist customers with troubleshooting and questions regarding use of the Software.

1.7.         “Intellectual Property Rights” means any patent, invention, discovery, know-how, moral, technology, software, copyright, authorship, trade secret, trademark, trade dress, service mark, confidentiality, proprietary, privacy, intellectual property or similar rights (including rights in RPM applications, registrations, filings and renewals) that are now or hereafter protected or legally enforceable under state or Federal common laws or statutory laws or laws of foreign jurisdictions.

 

1.8.         “Laws” means all applicable common law and any and all state, Federal or local statutes, ordinances, codes, rules, regulations, or requirements enacted, adopted, followed or imposed by any Governmental Authority, as amended, interpreted or enforced by any Governmental Authority, as applicable to each respective Party.

1.9.         “Participating Patients” means those patients of Customer’s practice that Customer has determined may benefit from use of the RPM Solution.

1.10.      “Patient-Generated Health Data” means self-reported physiologic data from a Patient User (as defined below).

1.11.      “Patient Mobile App” means the portion of the RPM Solution which allows Patient Users to report and track Patient Data.

1.12.      “Company Data” means: (a) all data, software (in any form) and information Company submits or transmits to Customer regarding Company; (b) all data, records and information generated in Company’s business or operations, including any information relating to Company’s subcontractors and/or affiliates; (c) all Company Intellectual Property, together with all derivative works of the Company Intellectual Property; and (d) data, records or information occurring in any form, including written, graphic, electronic, visual or fixed in any tangible medium of expression and whether developed, generated, stored, possessed or used by Company, Customer, or a third party if related to the items described in (a) through (c) above. Company Data does not include any data or information that relates exclusively to Customer or Customer’s business, operations or activities.

1.13.      “Patient User” means any patient of Customer or any duly authorized representative or agent of a patient, who has registered to use the RPM Solution and has agreed to the Terms of Use.

1.14.      “Protected Health Information” or “PHI” shall have the meaning ascribed to such term in 45 C.F.R. 160.103.

1.15.      “Provider-Facing Dashboard” means the portion of the RPM Solution which allows healthcare providers to track and analyze Participating Patients’ self-reported physiologic data.

1.16.      “Software” means the RPM Solution, including the Patient Mobile App, the Provider-Facing Dashboard, all of the capabilities and functionalities associated with the RPM Solution, and user support services provided by Company.

1.17.      “Terms of Use” means the agreement between each of Customer’s individual users of the RPM Solution and Company.

2. TERM

2.1.         Term. The term of this Agreement shall commence on the Effective Date and continue for one (1) year thereafter (“Initial Term”). Unless either Party provides at least thirty (30) days’ prior to the expiration of the Initial Term or and Renewal Term, the Agreement shall automatically renew upon expiration of the Initial Term for additional one (1) year terms unless and until terminated as provided in this Agreement (each a “Renewal Term”). The Initial Term and all Renewal Terms collectively constitute the Term of this Agreement.

3. THE RPM SOLUTION & SERVICES

3.1.         Provider-Facing Dashboard. The Provider-Facing Dashboard (the “Dashboard”) may be used by Customer’s Authorized Users to monitor Participating Patients and determine which Patients require follow-up and/or intervention.  The Dashboard allows Customer and its Authorized Users to review recorded vital signs for each Participating Patient.

3.2.         Patient Mobile App. Company will make the Patient Mobile App available to Customer’s patients.  The Patient Mobile RPM Solution has three main functionalities: 1) onboarding of Patients; 2) receiving Patient Data and relaying it to Company servers for storage/processing; and 3) displaying a portion of the data collected to Patients. Company’s Patient Mobile App shall be available by download from the Apple App Store to Participating Patients.

3.3.         Data Monitoring. Company shall monitor Participating Patients’ vital signs as agreed to by the Parties. Company is not a medical provider or medical practice and does not provide medical advice. Data Monitoring services are provided for informational purposes only and do not constitute medical advice or diagnosis. Customer is solely responsible for providing medical care and making medical decisions with respect to Participating Patients. Company is not responsible for the accuracy of any data monitored. Further, Data Monitoring services are not intended to provide 24-hour monitoring or to identify medical emergencies and shall not be construed as such.

3.4.         Software and Devices. The Devices are used to capture a Patient User’s vital signs and transmit Patient Data to the Software for the patient and/or the patient’s caregiver to view and for Customer’s healthcare providers to view and analyze. Customer shall be solely responsible for determining which Devices to provide to a particular Patient User based on the Patient User’s care plan and subject to ongoing changes in the care plan.

3.4.1.     Ordering Devices. For each new Patient User, Customer will submit a Patient Enrollment Form to Company indicating the conditions to be monitored. In order for a patient to be accepted by Company, Customer shall use the enrollment form provided to it by Company from time to time. Company will ship the appropriate Devices to the patient. If a change in a Patient User’s care plan warrants a change in the Devices provided to that particular Patient User, Company shall make appropriate adjustments as agreed upon by the Parties, subject additional fees as determined by Company.

3.4.2.     Software and Device Fees. Customer shall pay to Company the Software and Device Fees indicated on this agreement for each Patient User. Device Fees are subject to change at Company’s sole discretion upon 30 days’ prior written notice to Customer.

3.4.3.     Damaged Devices. Company shall be solely responsible for and indemnify Customer for any damage, excluding natural wear and tear, to the Devices caused by a Patient User, Customer, or any third party.

3.4.4.     Defective Devices. Company expressly warrants to Customer that the Devices will materially conform to their published specifications and be reasonably free from defects in material and workmanship, not including reasonable wear and tear or loss, for a period of twelve (12) months commencing on the date of the delivery of any Device to Customer or a Patient User (the “Warranty Period”). This warranty only applies to Devices received from Company and handled in the manner recommended by Company and associated vendors.

3.5.         Support Services. Company will provide technical support services to Customer (including its patients, physicians, and staff) via telephone and/or email on weekdays between 9:00 am and 5:00 pm Central Standard Time (CST), excluding Federal holidays (“Support Hours”). Customer may initiate a Helpdesk ticket during Support Hours by calling  or any time by emailing. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day, but Company does not represent, warrant or guarantee that all tickets will be responded to within such time frame.

3.6.         Implementation & Training Services. Company will provide implementation and training services for Customer and Customer’s Authorized Users. Implementation services shall include integrating Participating Patients’ information into the Software and developing a dedicated tracking system to allow Customer and its Authorized Users to monitor Participating Patients. Training services shall include virtual communication with Customer and its Authorized Users to educate them in use of the software and related obligations and services.

3.7.         Access and Use of the Software and Customer Data.

3.7.1.     Software.  Subject to Customer’s compliance with the terms of this Agreement, Company will provide access to the Software to Customer and its Authorized Users. Customer and its Authorized Users may use the Software (a) to access and use the RPM Solution in accordance with the relevant Terms of Use and any other supporting documentation provided by Company, (b) to upload and/or transmit Customer Data by and through the RPM Solution; and (c) to access and use reports generated from time to time by Company.

3.7.2.     Customer Data. Customer hereby grants to Company a limited, non-exclusive, royalty-free, worldwide license to:

3.7.2.1. Use, reproduce, aggregate and modify the Customer Data and to perform all acts with respect to the Customer Data as may be necessary for Company to provide the Services to Customer; and

3.7.2.2. Use Customer’s name, logo, and trademark for marketing purposes upon written consent of Customer; and

3.7.2.3. Use or modify the Customer Data for the purposes of creating De-identified Data from PII and PHI contained in the Customer Data. Company intends to use De-identified Data, aggregated with the de-identified data of other Company customers, to enable Company to provide more targeted, accurate, and useful insights to its customers.

3.7.2.4. As between Company and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.  Customer Data will be included in and treated as Customer’s Confidential Information under this Agreement.

3.7.3.     Intellectual Property. Except as otherwise set forth in this Agreement, all inventions, works of authorship, and developments conceived, created, written, or generated by or on behalf of Company, whether solely or jointly, including without limitation, in connection with the Software hereunder (“Company Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Company.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Company may reasonably request, to perfect ownership of the Company Developments. Customer shall not re-distribute the Software or the Devices other than as specifically provided for in this Agreement.

4. CUSTOMER RESPONSIBILITIES

4.1.         System. Customer is responsible for (a) obtaining, deploying and maintaining all computer hardware, software, modems, routers and other communications equipment necessary for Customer’s Authorized Users to access and use the RPM Solution via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the RPM Solution via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in this Agreement, Company will not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.

4.2.         Consents.  Customer shall obtain and document necessary patient consents from Participating Patients prior to commencing services to be provided via the RPM Solution. Unless otherwise agreed in writing, Customer will obtain all additional necessary consents and authorizations to enable Company to use, upload, process and store Customer Data using the RPM Solution. Customer will not furnish any Customer Data that includes an individual’s PHI to Company in the event such individual objects.  Customer acknowledges and accepts full responsibility and liability for all Customer Data.

4.3.         EULA.  Customer will be solely responsible for its actions and the actions of its Authorized Users while using the RPM Solution. As a condition to Customer’s and its Authorized Users’ use of the RPM Solution, Customer shall require its Authorized Users to review and accept the software End-User License Agreement (“EULA”), as updated by software vendor from time to time, prior to accessing the Software. Customer shall abide by and Customer shall require its Authorized Users to abide by the EULA when using or accessing the Software. Customer acknowledges and understands that Company does not control the EULA and is not responsible for notifying Customer of any changes that are made to the EULA.

4.4.         Patient Copays and Deductibles. Customer is responsible for collecting from a Participating Patient any applicable patient copays or deductible amount as required by Participating Patient’s health insurance plan, whether commercial or government-sponsored.

5. PAYMENTS

5.1.         Fees. As compensation for the use of the RPM Solution, Customer shall pay Company pursuant to the fee arrangement set forth in this agreement.

5.2.         Payment.

5.2.1.     Company shall invoice Customer for fees owed to Company on a monthly basis.

5.2.2.     Customer shall pay Company for invoiced amounts and any other amounts due under this Agreement via electronic transfer, check, or automated lockbox distribution.

5.2.3.     Customer shall pay all undisputed fees within 30 days of receipt of an invoice from Company.

5.3.         Currency.  All amounts set forth in this Agreement are denominated and shall be paid in U.S. dollars.

5.4.         Overdue Payments.

5.4.1.     Any payment owed by Customer to Company hereunder and not timely paid to Company (an “Overdue Payment”) may accrue, at Company’s discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.4.2.     If there are payments outstanding for more than sixty (60) days and such payments have not been disputed in good faith pursuant to Section 5.5, Company will provide a thirty (30) day opportunity to cure. If, after the thirty (30) day cure period, payments remain overdue, Company reserves the right to suspend Authorized Users’ access to the RPM Solution until such amounts are paid in full. Customer shall continue to be obligated to pay all Fees during such suspension period.

5.5.         Disputed Payments. Customer must indicate that they are disputing any fees or expenses, in writing, to Company within ten (10) business days of receipt of the invoice specifying such fees or expenses (a “Dispute Notice”). In the event Customer disputes any fees or expenses owed pursuant to this Agreement and withholds payment, Company and Customer agree to attempt to resolve such dispute through informal meetings and discussions in good faith between appropriate representatives of the Parties within forty-five (45) days of receipt of the Dispute Notice before resorting to any other dispute resolution procedure.

5.6.         Taxes.  All amounts payable by Customer to Company pursuant to this Agreement are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to Company are payable in full without reduction for Taxes. Customer is responsible for payment of all Taxes, excluding taxes owed by Company based on Company’s net income.  If Company has the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

6. PROPRIETARY RIGHTS

 

6.1.         Company Intellectual Property.  As between Company and Customer, all right, title and interest, including all Intellectual Property Rights, in the Software, Company Data, and any other Company property or materials furnished or made available hereunder, and all modifications and enhancements thereof, belong to and are retained solely by Company or Company’s licensors and providers, as applicable.

 

6.2.         Trademarks.  Nothing in this Agreement shall grant any party any ownership interest, license or other right to any other party’s trade names, trademarks or service marks, except as expressly provided herein.

 

6.3.         Customer Data.  As between Company and Customer, all right, title and interest in the Customer Data belong to and are retained solely by Customer.

6.4.         Feedback License.  Company owns all right, title and interest in and to any suggestion, enhancement, request, recommendation, or other feedback related to the Software provided by Customer (any “Feedback”).  Feedback shall not be considered Customer’s Confidential Information pursuant to this Agreement.

6.5.         De-identified Data. As permitted in Section 3.7.2 above, Company may use PII and PHI (a subset of Customer Data) to create De-identified Data. Company may use, create, modify, aggregate, and disclose De-identified Data for any purposes not prohibited by law.  Company owns all rights, title and interest in such De-identified Data and any data, information and material created by Company with such De-identified Data, including all Intellectual Property Rights therein. De-identified Data is NOT Customer Data. For the avoidance of doubt, the second and third sentences of this Section shall survive the expiration or earlier termination of this Agreement.

7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

7.1.         Mutual Representations and Warranties.  Each Party represents, warrants and covenants that such Party has conducted reasonable inquiry and based thereon is informed and believes that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; (b) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust; and (c) it will comply with any and all applicable local, state, and/or national laws or regulations applicable to such party, including, without limitation, those related to PHI, Covered Entities, and Business Associates as each term is defined under HIPAA, and to any other laws or regulations regarding data privacy and transmission of personal data.

7.2.         Practice of Medicine. CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT COMPANY IS IN NO WAY ACTING AS A MEDICAL PROVIDER WITH RESPECT TO ANY PATIENT OR ANY OF CUSTOMER’S RELATED PARTIES AND PROVIDERS, NOR IS COMPANY PROVIDING 24/7 CONTINUOUS, SYNCHRONOUS, OR EMERGENCY ALERTING. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE TREATMENTS, PROCEDURES, WORKFLOW, INFORMATION, MEDICATIONS, PROCESSES, PRODUCTS AND OTHER ITEMS REFERENCED BY COMPANY OR ITS SOFTWARE ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, PROCEDURE, INFORMATION, PRODUCT OR MEDICATION AND THAT THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH THE PHYSICIANS TREATING SUCH PATIENT.

7.3.         Third Party Materials. CUSTOMER UNDERSTANDS AND AGREES THAT USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SOFTWARE FROM A SOURCE OTHER THAN COMPANY (“Third Party Materials”) IS AT ITS OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS OR ITS AUTHORIZED USERS’ PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

 

7.4.         Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED ON AN AS-IS BASIS.  CUSTOMER’S USE OF THE SOFTWARE IS AT ITS OWN RISK.  COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  ANY WARRANTIES MADE BY COMPANY ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY.  THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY INFORMATION, DATA, PRODUCTS, PROCESSES, AND OTHER MATTERS REFERENCED BY THE RPM SOLUTION AND SOFTWARE, REMAINS WITH THE CUSTOMER.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO THE SOFTWARE.

7.5.         Basis of the Bargain. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY HAS OFFERED ITS PRODUCTS AND SOFTWARE AND ENTERED INTO THIS AGREEMENT TO WHICH IT IS A PARTY IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN CUSTOMER AND COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND COMPANY. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO CUSTOMER ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

8. CONFIDENTIALITY

8.1.         Confidential Information Defined. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure and/or receipt ought to be treated as confidential and proprietary information, including but not limited to:  (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatuses, formulae, equipment, algorithms, software programs, software source and object codes and documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) the business relationships and affairs of either party and its clients, patients, and referral sources; (d) the internal policies and procedures of either Party; (e) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (f) the terms of this Agreement.  Company’s Confidential Information includes the Software and Company Data.  Confidential Information of Customer includes Customer Data.  Confidential Information also includes all summaries and abstracts of Confidential Information. In addition, Confidential Information excludes PHI, which must be protected according to the Business Associate Agreement.

8.2.         Confidential Information Terms. Each Party acknowledges that, in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party.  The Receiving Party will, at all times, both during the term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information.  The Receiving Party will not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement.  Notwithstanding the above, either Party may disclose the other Party’s Confidential Information upon the order of any competent court or government agency; provided that, prior to disclosure, to the extent possible, the receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section 8.  The Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

8.3.         Exceptions.  The term “Confidential Information” shall not include any information which:  (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party, as evidenced by Receiving Party’s written records; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, as evidenced by Receiving Party’s written records; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.

8.4.         Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damage.

8.5.         HIPAA Compliance.  Each Party, to the extent applicable, will comply with laws and regulations applicable to the privacy and security of individually identifiable health information, including but not limited to state laws and regulations and the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and/or regulations promulgated thereunder (“HIPAA Regulations”).  State law, HIPAA, HITECH, HIPAA Regulations and other federal laws and regulations are hereafter referred to collectively as “Privacy Laws”.  The Business Associate Agreement executed between the Parties, further describes the parties’ obligations with respect to compliance with HIPAA, HITECH, and HIPAA Regulations, and is hereby incorporated into this Agreement by reference.

8.6.         Security. Each of Customer’s Authorized Users authorized will create a unique user login and passwords to be used to access and use the Software.  Customer will be, and will ensure that its Authorized Users are, responsible for maintaining the confidentiality of all User logins and passwords and for ensuring that each User login and password is used only by the Authorized User to which it was issued.  Customer shall restrict its Authorized Users from sharing passwords.  Customer agrees to immediately notify Company of any unauthorized use of any account or login and password issued to its Authorized Users, or any other breach of security known to Customer.  Company will have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.  Customer will ensure its Authorized Users do not circumvent or otherwise interfere with any user authentication or security of the Software.

9. INDEMNIFICATION

9.1.         Indemnification by Customer. Customer shall indemnify and hold harmless Company and its officers, directors, employees and agents (“Company Indemnified Parties”), from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) (“Losses”), arising, directly or indirectly, out of or relating to any claim, action or proceeding (a “Claim”) brought by a third party based on (i) the improper use or operation of the RPM Solution (and any third party software provided to Customer pursuant to this Agreement) by Patient Users, Customer and/or Authorized Users, including, without limitation, any non-authorized use of Customer’s user logins, provided, however, that Customer shall have no indemnification obligation for any claim for which the proximate cause was the gross negligence or willful misconduct of Company; (ii) a breach of the Agreement by Customer or any of its Authorized Users, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of Customer Data or any other content or data introduced to the RPM Solution by any Authorized User; (iv) violation of any applicable law, rule or regulation by Customer or any of the Authorized Users, (v) the diagnosis and/or treatment of any of Customer’s patients; and/or (vi) the negligent acts or willful misconduct of Customer or its personnel.  Customer will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the Company Indemnified Parties from any such Claim.

9.2.         Indemnification by Company. Subject to limitations of liability as set forth in Section 10, Company agrees to defend Customer and its officers, directors, employees and agents (a “Customer Indemnified Party”) from and against any Claims brought by a third party resulting from or arising out of (i) the unauthorized disclosure by Company of PHI in breach of the Business Associate Agreement by Company; and (ii) a successful claim that the Software infringes or misappropriates the patent, trade secret, trademark, copyright or other Intellectual Property Rights of any third party (an “Infringement Claim”). Company will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Claim.

9.2.1.     In the event of an unauthorized disclosure by Company of PHI in breach of the Business Associate Agreement, Company shall undertake, and shall bear its own costs or third party expenses incurred by Company with respect to, providing such credit monitoring services and notice to Customer’s affected patients as are required by applicable privacy and data security laws, including, but not limited to, 45 CFR 164.400 et seq.

9.2.2.     In the event of an Infringement Claim, Company may, at its election, and sole expense, (i) modify the Software so that such Software is non-infringing and functionally equivalent; or (ii) obtain the right for Customer and Customer’s patients to continue using the Software at no additional cost to Customer. If none of the foregoing is commercially practicable, Company may terminate this Agreement.

9.3.         Procedure. Each Party shall provide to the other Party prompt notice of any Claim for which they are seeking indemnification.  The indemnified Party may have counsel reasonably acceptable to the indemnifying party observe the proceedings at the indemnified party’s expense, provided the indemnifying party retains sole control of the defense of the Claim.  The indemnified party has the right to approve any settlement that affirmatively places on the indemnified party an obligation that has a material adverse effect on the indemnified party other than requiring the indemnified party to cease using the RPM Solution or to pay sums indemnified hereunder.  Such approval shall not be unreasonably withheld.

10. LIMITATIONS OF LIABILITY

10.1.      No Consequential Damages.  NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF COMPANY’S PROVISION OR CUSTOMER’S USE OF THE SOFTWARE OR THE RESULTS THEREOF.  IN NO EVENT WILL COMPANY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

 

10.2.      Limits on Liability.  COMPANY SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

 

10.3.      Essential Purpose.  CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 10 (LIMITATION OF LIABILITY) ARE A BARGAINED FOR REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND (B) EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

 

10.4.      Exceptions.  The limitations and exclusions of certain damages set forth in Section 10.1 and 10.2 will not apply to injury or damage caused by a Party’s gross negligence or willful misconduct.

 

10.5.      Limitation of Action.  No action (regardless of form) arising out of this Agreement may be commenced by Customer against Company more than two (2) years after the cause of action arose.

11. TERMINATION

11.1.      Mutual Agreement. This Agreement shall terminate upon the mutual written agreement of Customer and Company as of the date of signature or other effective date set forth on the written instrument.

11.2.      For Cause.

11.2.1.   Material Breach. Either Party may terminate this Agreement following a material breach of this Agreement by the other Party which is not cured during the Cure Period. The non-breaching Party shall notify the breaching Party of the breach in writing and the breaching party shall have thirty (30) days (the “Cure Period”) to cure the breach following receipt of the notification. If the breaching Party fails to cure the breach within the Cure Period, then the non-breaching Party may terminate this Agreement upon written notice to the breaching party. Any vendor’s failure to deliver Devices at no fault of Company shall not constitute a material breach of this Agreement.

11.2.2.   Other Cause. Company may terminate this Agreement immediately by providing written notice to Customer upon the occurrence of any of the following events:

(a)          Company reasonably determines that Customer and/or its Authorized User(s) have been or are engaged in unlawful activity associated with the use of the Software and/or the Services;

(b)          The indictment or conviction of Customer or its principals, employees, or agents for any felony or misdemeanor involving moral turpitude;

(c)           The filing, with respect to Customer, of a voluntary or involuntary petition in bankruptcy if such petition is not dismissed within thirty (30) days of such filing;

(d)          Upon the appointment of a receiver or trustee to take possession of all, or substantially all, of Customer’s assets, if such appointment is not terminated within thirty (30) days;

(e)          Customer’s exclusion from participation in Medicare; and/or

(f)           For any other reason Company feels could reasonably jeopardize the integrity or reputation of its operations or systems.

11.3.      Without Cause. Either Party may terminate this Agreement without cause provided that the terminating Party provides thirty (30) days’ written notice of termination.

11.4.      Bankruptcy. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event the other party becomes insolvent or enters into bankruptcy or other reorganization proceedings.

11.5.      Effect of Termination.

11.5.1.   Unless otherwise stated below, upon expiration or termination of this Agreement for any reason, (a) the License shall terminate and the Customer shall not use or access, directly or indirectly, the Software; (b) Company’s obligation to perform support services shall cease; and (c) all fees and other amounts owed to Company will be immediately due and payable by Customer up through the effective date of termination for any support services completed.

11.5.2.   If Customer has made any copies of any Company property or materials furnished or made available hereunder, including without limitation the RPM Solution, Customer shall either destroy or return to Company all such copies along with a certificate signed by Customer that all such copies have been either destroyed or returned, respectively, and that no copy or any part of the aforementioned software, data or materials has been retained by Customer in any form.

11.5.3.   Within thirty (30) days after the effective date of applicable termination or expiration, Company will make any Customer Data stored on the RPM Solution available for download by Customer for a period of thirty (30) days in the format in which it is stored in the RPM Solution.  Except as required by law or under the Business Associate Agreement, after such 30-day period, Company will have no obligation to maintain or provide any Customer Data and may thereafter delete (in accordance with the Business Associate Agreement) all Customer Data in its systems or otherwise in its possession or under its control.

11.5.4.   Upon any termination For Cause by Company, Customer will pay any unpaid fees earned up to the effective date of termination.  In no event will any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination.

11.5.5.   Upon termination without cause by Company, or termination For Cause by Customer, Customer shall be entitled to a refund of any fees pre-paid but unearned as of the effective date of termination.

12. MISCELLANEOUS

12.1.      Records. The Parties will each retain books and records directly related to the provision and use of the Software for a period of seven (7) years following the date of their creation or for a longer time period, if required by applicable laws.

12.2.      Insurance. Customer shall maintain, at its own expense and in the minimum amounts specified herein, and Company shall be named as an additional insured on each policy:

12.2.1.   Professional Errors & Omissions insurance with limits of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in aggregate.

 

12.2.2.   Commercial General Liability insurance with limits of Two Million Dollars ($2,000,000) per occurrence and Two Million Dollars ($2,000,000) in aggregate.

12.3.      Subcontractors.  Company may use its affiliates or subcontractors to provide the Software.

12.4.      Notices.  Any notices, requests, consents, demands or other communications required or permitted under this Agreement will be in writing and deemed to have been duly given either: (a) when delivered, if delivered by hand, sent by United States registered or certified mail (return receipt requested), delivered personally by commercial courier, or (b) on the second following business day, if sent by United States Express Mail or a nationally recognized commercial overnight courier; and in each case to the parties at the following addresses (or at other addresses as specified by a notice) with applicable postage or delivery charges prepaid.

12.5        Amendment.  Except as may otherwise be specified in this Agreement, this Agreement may be modified, changed or amended only by a dated written instrument executed by a duly authorized person of each party.

12.6        Waiver; Severability. The failure of any Party to insist in any one or more instances upon performance of any term of this Agreement will not be construed as a waiver of future performance of the term, and the Party’s obligations for the term will continue in full force and effect. The provisions of this Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of this entire Agreement in that jurisdiction.

12.7        Governing Law. This Agreement and each Party’s rights and obligations under it will be governed by and construed in accordance with the laws of the State of California, without giving effect to conflicts of law principles.

12.8        Assignment. Neither Party may assign or transfer this Agreement without the prior written consent of the other Party; provided, however, that Company may assign or transfer this Agreement, without Customer’s consent, to any of Company’s affiliates, subsidiaries, entities controlled by or under common control with Company, or in the event of a merger, change of control or sale of substantially all of its assets.  This Agreement will bind the Parties and their respective successors and assigns and will inure to the benefit of the Parties and their respective permitted successors and assigns.

12.9        Force Majeure. If any Party is unable to perform any of its obligations under this Agreement (other than payment obligations) because of any cause beyond the reasonable control of and not the fault of the Party invoking this section, including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection or material unavailability, and if the non-performing Party has been unable to avoid or overcome its effects through the exercise of commercially reasonable efforts, such non-performing Party will give prompt notice to the other Party, its performance will be excused, and the time for its performance will be extended for the period of delay or inability to perform due to such occurrences.  If performance is extended under this section for more than sixty (60) days, then at any time before reinstatement of the performance, the other Party may terminate this Agreement upon notice to the non-performing Party.

12.10     Relationship of the Parties. The sole relationship between the Parties is that of independent contractors. This Agreement will not create a joint venture, partnership, agency, employment or other relationship between the Parties. Nothing in this Agreement will be construed to create any rights or obligations except among the Parties; and no person or entity will be regarded as a third-party beneficiary of this Agreement, except as otherwise provided in this Agreement.

12.11     Survival. Any term of this Agreement that contemplates performance after termination of this Agreement will survive expiration or termination and continue until fully satisfied.

12.12     Dispute Resolution. In case of disputes in connection with the negotiation, execution, interpretation, performance or non-performance of this Agreement, the Parties agree to seek non-binding mediation, which shall be conducted remotely by a single mediator selected by the Parties. The mediator shall conduct the proceedings pursuant to the rules of the American Arbitration Association, as now or hereafter amended. In the event that any such mediation does not produce a settlement, unless the dispute is otherwise settled, the dispute shall be determined by binding and final arbitration in Los Angeles, California, by three (3) arbitrators selected by the Parties (or by the American Arbitration Association if the Parties cannot agree) in accordance with the law of the State of Delaware and the rules of the American Arbitration Association.  If the Parties fail to agree on the mediator within thirty (30) days of the date one of them invokes this mediation provision, either Party may apply to the American Arbitration Association to make the appointment.

12.13     Entire Agreement. This Agreement, including all applicable Attachments, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

11.14     Counterparts.  This Agreement may be executed in one or more counterparts.  Each counterpart will be an original, but all such counterparts will constitute a single instrument