Master Services Agreement

Last Updated Date: January 15, 2025

This Master Service Agreement (“Agreement”) is a legal agreement between you (“Client”) and Unified Practice, Inc. its affiliates, subsidiaries, directors, officers, employees, agents, and representatives (referred to herein as “UP”) to purchase access to the UP Platforms (defined below) and the related services that UP may provide to Client under a separate ordering document or as defined at the time of your subscription enrollment on the Site, referred to herein as an “Order Form” (together with the UP Platforms, the “Services”). This Agreement governs the use of the Services UP provides to you and your use of the UP Platforms. Capitalized terms used but not defined herein shall have the meanings ascribed to them in any applicable Order Form.

 “UP Platforms” means collectively and individually, https://www. https://unifiedpractice.com/, https://ehr.unifiedpractice.com/Public/Account/Login, the Electronic Medical Record Service (“EMR”) and any of their subdomains (collectively, the “Site”) and any websites, platforms, exchanges, successor platforms and exchanges, software, portals, applications, and Application Programming Interfaces (“API”s), programs, components, functions, screen designs, reporting data, and report formats owned or operated by UP, and all Updates, Upgrades, and other derivative works, upgrades, releases, fixes, patches, etc. related to the software that UP develops, deploys, or makes available to Client during the term of this Agreement, as they may be modified, relocated and/or redirected from time to time., to receive, or review data and results of the Services.

BY ACESSING OR USING THE SERVICES OR UP PLATFORMS, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF UP’S PRIVACY POLICY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO ACCEPT THIS AGREEMENT CLIENT’S BEHALF, THEN YOU ARE NOT AUTHORIZED TO AND ARE PROHIBITED FROM ACCESSING THE UP PLATFORMS OR THE SERVICES.

We may revise and update the terms and conditions of this Agreement at any time by posting revisions to the Site and your continued use of UP Platforms or Services indicates your agreement any such revised terms and conditions. All changes are effective immediately when we post them to the Site (as indicated in the “Last Updated” date) and apply to all access to and use of UP Platforms or Services thereafter. Accordingly, we urge you to regularly review this Agreement as the terms and conditions herein are binding on you. We may update the content on UP Platforms from time to time, but its content is not necessarily complete or up-to-date. Any of the material on UP Platforms may be out of date at any given time, and we are under no obligation to update such material. The UP Platforms are offered and available to users who are eighteen (18) years of age or older. By using the UP Platforms or the Services, you represent and warrant that you are of legal age to form a binding contract with UP and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the UP Platforms or the Services.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Client’s initial access to the UP Platforms through any online provisioning, registration, or order process, or (b) the effective date of the first Order Form. This Agreement governs Client’s initial purchase on the Effective Date as well as any future purchases made by Client that reference this Agreement.

  1. SERVICES AND UP PLATFORMS AND TERMS
    • Grant of Access. The Services, the UP Platforms, and related source code, web beacons, pixels, and any and all materials relating thereto, including all associated intellectual property rights, shall remain at all times the sole, exclusive property of UP. Client agrees and acknowledges that the Services may contain the valuable trade secrets and proprietary information of UP and its licensors.Subject to the terms and conditions of this Agreement, UP grants to Client a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right for Client’s authorized employees, agents, representatives, consultants, and contractors (“Authorized Users”) to access and use the Services and the UP Platforms during the Term for Client’s internal business purposes only in accordance with the Documentation (as defined below). UP reserves the right to modify or discontinue the Services (or any part thereof) at any time with or without notice. UP shall not be liable to Client or to any third party for any modification, price change, suspension or discontinuation of the Services. The UP Platforms may allow Client to designate different types of Authorized Users, which may have different pricing, functionality, and use restrictions, as described in the Documentation or applicable Order Form. Authorized Users must agree to this Agreement prior to accessing or using the UP Platforms or they may not access or use the Services or UP Platforms. Each Authorized User must keep its login credentials confidential and not share them with anyone else. Client is responsible for its Authorized Users’ compliance with this Agreement and actions taken through their accounts. This Agreement does not permit access to the UP Platforms by persons who are not Authorized Users. UP may impose reasonable conditions on Client’s use of the Services, including, without limitation, requiring the use of UP’s preferred payment processing provider. UP reserves the right to increase fees if they elect to support payment processing providers that are not UP’s preferred payment processing providers.
    • Reservation of Rights. Access to the UP Platforms is provided on a limited term and basis. All rights not specifically granted to Client hereunder are reserved by UP. Nothing herein shall prevent UP from promoting, providing, licensing, or sublicensing the UP Platforms or providing the UP Platforms to other parties. Client shall promptly notify UP of any determination, discovery, or notification that any person or entity is or may be misusing or infringing the UP Platforms, including without limitation if it becomes aware of any compromise of its Authorized Users’ login credentials.
    • Professional Service Deliverables. All work product, customizations, improvements, and/or enhancements to the Services performed by UP for Client pursuant to this Agreement or as identified on any separate Order Form executed by the parties (collectively, “Professional Service Deliverables”), shall be owned exclusively by UP, unless otherwise provided in the corresponding Order Form. If, by operation of law or otherwise, any Professional Service Deliverables are not owned exclusively by UP immediately upon creation thereof, Client agrees to assign, and hereby irrevocably assigns, to UP exclusive ownership of such Professional Service Deliverables and expressly disclaims any ownership rights thereto. Client will cooperate with UP to confirm and/or execute such assignments and UP’ ownership of Professional Service Deliverables.
    • Feedback. If Client provides UP with feedback or suggestions regarding the Services (“Feedback”), then UP may use Feedback without restriction or obligation. In addition, Client hereby irrevocably assigns ownership of any and all Feedback to UP and will cooperate with UP to confirm and/or execute such assignments and UP’ ownership of Feedback.
    • Aggregate Data. As between Client and UP, UP owns all rights, title, and interest in and to Aggregate Data. Accordingly, UP may, during the Term and thereafter, use, display, transmit, modify and prepare derivative works of Aggregate Data in any media for any lawful purpose, including maintaining and improving the Services and UP Platforms. “Aggregate Data” means any information, reports, commentaries, market testing outputs, consumer testing outputs, data analyses, test results, consumer, insights or other data accessed, compiled, collected, stored or used by UP in connection with the Services, or the UP Platforms which is aggregated and does not include personally identifiable information. The source of this Aggregate Data is not identifiable.
    • Third-Party Providers. Client’s use of any Third-Party Provider shall be subject to the terms and conditions of Client’s agreement with such third party, and Client is solely responsible for its compliance with such terms and conditions. Client acknowledges that the UP does not control, is not responsible for, and will not be liable in any way for Client’s use of any Third-Party Provider. Client further acknowledges that any Client data loss, downtime or periodic unavailability of the UP Platforms due to Third-Party Providers’ system maintenance, upgrades, or any other reason is outside of UP’s control. “Third-Party Provider” shall mean any platform, add-on, service, code (including open source) or product not provided by UP that Client chooses to integrate or enable for use with the UP Platforms.
    • Documentation. Subject to the terms and conditions of this Agreement, UP grants to Client a limited, non-exclusive, non-transferable, revocable, and non-sublicensable right and license to use and make copies of the usage guidelines and standard technical documentation for the UP Platforms as may be provided or made available online or in writing by UP (the “Documentation”). The Documentation is for Client’s internal use only, for archival purposes, and for training and education of Authorized Users, provided that all proprietary notices of UP and its licensors, if any, are reproduced and retained. UP reserves the right to modify the Documentation in UP’s sole determination without prior notice to Client.
  2. PROHIBITIONS. Use of and access to the UP Platforms is permitted only by Client and its Authorized Users. Under no circumstances may Client or any Authorized User modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the UP Platforms, modify or adapt the UP Platforms in any way, use the UP Platforms to create a derivative work, or grant any other person or entity the right or access to do so, without the UP’s advance written consent. Except as expressly authorized by this Agreement, and without limiting the foregoing, Client and Authorized Users will not (a) modify, copy, duplicate, reproduce, unbundle, license, sublicense, sell, assign, transfer, display, distribute, lend, rent, lease, sublease, or make available the Services or any portion thereof to any third party; (b) provide, transmit, disclose, divulge, or make available to, or permit use of the Services by, any third party or entity or machine; (c) use the Services in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party; (d) publish, post, upload, or otherwise transmit any unlawful, false, offensive, defamatory, or infringing data or any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (e) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of UP or the Services without the prior written consent of UP; (f) attempt to gain any unauthorized access to the Service or UP customer data or attempt any unauthorized alteration or modification thereof; (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that access the Service; or (h) any use of the Services or the information contained therein in violation of any applicable law or regulation.
  3. SUSPENSION. UP may, at its sole discretion, suspend Client’s use of the UP Platforms and/or Services if UP determines that (a) Client or Authorized Users breached Section 2, (b) Client’s account is 30 days or more overdue for payment after being notified, or (c) Client’s use of the UP Platforms risks harm to other customers of UP or the security, availability, or integrity of the UP Platforms.
  4. CLIENT DATA
  • Client Data. Use of the Services may involve the receipt, processing, and storage of data, information, or material input by Client, Authorized Users, and Client’s end user customers who use the UP Platforms (“End Users”) (collectively, “Client Data”). Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to collect, use, and authorize UP to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data. Client further represents and warrants that the use of Client Data does not violate or infringe any applicable law, any third-party rights, or any terms or privacy policies that apply to the Client Data.
  • License to Client Data. Client hereby grants to UP the worldwide, non-exclusive, right to use, copy, store, transmit, display, modify and create derivative works of Client Data, as necessary to provide the Service under this Agreement. Further, Client agrees that UP may use and develop Aggregated Data, using the Client Data, for any lawful purpose.
  • Accuracy of Client Data. Client is solely responsible for the accuracy, content, currency, completeness, and delivery of the Client Data provided by Client, Authorized Users, and Client’s End Users.
  • Return of Client Data. Upon termination or expiration of this Agreement, or at Client’s request, UP shall provide access to all Client Data in a commonly used machine-readable format or such other format as agreed by Client and UP no later than thirty (30) days after the termination or Expiration of the Agreement. After this export period, UP shall delete Client Data in accordance with its standard schedule and procedures.
  1. PAYMENT.
    • Fees and Expenses. All fees and other amounts, including without limitation, expenses (“Fees”) are as described in each applicable Order Form and UP may adjust the fees at any time with thirty (30) days’ notice and Client may terminate the Agreement if it does not accept fee change within such 30 day period. Unless the Order Form provides otherwise, all Fees, not subject to a good faith dispute, are due within 30 days of the invoice date. To the extent that Client disputes any invoice, Client must provide UP notice of such dispute in writing within ten (10) business days of the invoice date, or Client shall waive any claim with respect to such invoice. Late payments are subject to a service charge of 1.5% per month, or the maximum amount allowed by law, whichever is more. All Fees are nonrefundable and non-cancellable, except as expressly provided in this Agreement, and are exclusive of taxes­­. In the event of nonpayment or any shortfall in fees paid, Client authorizes UP and its Affiliates to increase fees, dues, assessments, and/or debit any of Client’s accounts, including those accounts associated with a payment processing agreement between Client and UP. As used in this Section 5.1, Affiliate of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
    • Taxes. Client is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to any Order Form, whether domestic or foreign (“Taxes”), other than UP’s income tax. Fees listed on or invoiced pursuant to an Order Form are exclusive of Taxes.
  2. CLIENT OBLIGATIONS
    • Client Contact. Client will cooperate with UP in all matters relating to the Services and appoint a primary contact who will have the authority to act on behalf of Client for matters pertaining to this Agreement. Client will provide access to Client’s premises, or access to Client Data, reasonably needed for UP to perform the Services. If Client fails to do so, UP’s obligation to provide the Services will be excused until access is provided and the parties agree on an updated timeline.
    • Accessibility. As it relates to the Services and/or Client’s use of the UP Platforms, Client is solely responsible for compliance with all applicable accessibility laws, rules, and regulations, including, but not limited to, Title III of the Americans with Disabilities Act (“ADA”), and (if applicable) New York’s state and city level Human Rights Act and California’s Unruh Civil Rights Act.
    • Messaging. If the UP Platforms include email, calling, and/or text messaging features which enable Client to text third parties via the UP Platforms, Client is solely responsible for ensuring that the email, calling and/or text message feature(s) of the UP Platforms are utilized in a manner that complies with all applicable local, state, and federal laws, rules and regulations governing the sending of emails, calls, and/or text messages. This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Client also represents and warrants that each third party to whom Client calls or texts has specifically granted Client permission to send such messaging; and that opt-out options are provided to such third parties pursuant to applicable law, rule, or regulation. Client is solely responsible for the content of any messaging by Client via the UP Platforms to third parties, and under no circumstances shall UP be identified by Client as the sender of such messaging. Client acknowledges it is responsible for obtaining any and all permissions required to use the UP Platforms’ calls, text messaging, or email features.
    • PCIRequirements. If Client is utilizing UnifiedPay for payment processing, Client is solely responsible for compliance with applicable PCI-DSS requirements and UP has no obligation to assist with PCI-DSS requirements in any way. Any assistance provided by UP or its employees, contractors, agents, representatives or other related persons, at your request or otherwise, is provided without warranty or liability.
  3. SECURITY AND PRIVACY. UP shall use reasonable and appropriate administrative, physical, and technical security programs and procedures designed to protect and secure the Services, UP Platforms, and Client Data. Client agrees to use reasonable efforts to prevent unauthorized persons from having access to the Services or any equipment providing the Services. UP and Client agree to notify the other party promptly upon becoming aware of any unauthorized access or use of the Services or Client Data by any third party.
  1. TERM, TERM, and TERMINATION
  • Term. This Agreement starts on the Effective Date and continues until expiration or termination of all applicable Order Forms or until terminated as authorized in Section 8.3, whichever occurs first.
  • Termination. Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after receipt of written notice of such breach by the other party, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
  • Early Termination. If Client terminates the Agreement prior to the expiration of the applicable Order Form, then Client shall forfeit all pre-paid fees, and for those arrangements in which the fees are not paid in advance, Client shall pay UP an amount equal to the monthly fee multiplied by the number of months remaining in the Term.
  • Effect of Termination. Upon termination or expiration of this Agreement for any reason, Client’s access to the Services will cease, other than limited use of the UP Platforms to export Client Data. Client will immediately return any Documentation in its possession to UP. Upon termination or expiration of this Agreement, the Client will delete all of UP’s Confidential Information within its possession, custody, or control. Client Data and other Confidential Information may be retained subject to the receiving party’s retention practices until such information is scheduled to be deleted in accordance with the receiving party’s policies and procedures, but will remain subject to this Agreement’s confidentiality restrictions until deleted.
  • Any provision of this Agreement which contemplates performance or observance subsequent to its termination or expiration, either explicitly or by its nature, shall continue in full force and effect.
  1. LIMITED WARRANTY AND DISCLAIMER
  • Limited Warranty. Client and UP warrant that each party has the corporate power and authority to enter into and carry out the terms of the Agreement. UP further warrants to Client that: (a) the UP Platforms will perform materially as described in the Documentation and UP will not materially decrease the overall functionality of UP Platforms during the Term (b) UP will perform any Services in a professional and workmanlike manner and (c) UP will use industry-standard measures designed to ensure that the Services (excluding Client Data) does not contain viruses, malware or similar harmful code.
  • Warranty Remedy. If UP breaches Section 9.1(a), (b), or (c) and Client makes a reasonably detailed warranty claim within 30 days of discovering the issue, then UP will use reasonable efforts to correct the non-conformity. If UP determines such remedy to be impracticable, either party may terminate the affected Order Form as it relates to the non-conforming Services. UP will then refund Client any pre-paid, unused fees for the terminated portion of the Services. These procedures are Client’s exclusive remedy and UP’s entire liability for breach of the warranties in Section 9.1(a), (b), or (c). These warranties do not apply to (i) issues caused by misuse or unauthorized modifications by Client or its authorized users, or (ii) issues in or caused by Third-Party Providers or other third-party systems.
  • Warranty Disclaimer. EXCEPT AS STATED EXPRESSLY PROIVDED IN SECTION 9.1, THE UP PLATFORMS, THE DOCUMENTATION, AND ANY PROFESSIONAL SERVICES PROVIDED BY UP UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, UP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE UP PLATFORMS AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE COMPLETENESS, ACCURACY, OR ARISING FROM A COURSE OF DEALING, USAGE , OR TRADE PRACTICE. UP EXPRESLY DISCLAIMS THAT CLIENT’S USE OF THE SERVICES OR UP PLATFORMS WILL BE UNINTERRUPTED OR ERROR-FREE, WILL MEET CLIENT’S PARTICULAR REQUIREMENTS, OR WILL MAINTAIN CLIENT DATA WITHOUT LOSS. UP IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE UP’S CONTROL, INCLUDING THE FAILURE TO PROMPTLY IMPLEMENT THE LATEST RELEASE OF THE SERVICE BY OR AT THE DIRECTION OF CLIENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. CLIENT ALONE IS RESPONSIBLE FOR ANY COMMUNICATION, MESSAGE, OR OTHER CONTENT THAT ITS AUTHORIZED USERS POST, UPLOAD, SUBMIT, TRANSMIT, OR SHARE VIA THE SERVICES OR THE UP PLATFORMS, INCLUDING ALL CLIENT DATA. 
  1. LIMITATION OF LIABILITY
  • UNDER NO CIRCUMSTANCES WILL UP BE LIABLE TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, WORK STOPPAGE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, HOWEER CAUSED, EVEN IF UP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT, LOSS OF REPUTATION, OR LOST CONTRACTS, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CLIENT.
  • TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, UP’S ENTIRE AGGREGATE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO UP, PURSUANT TO THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
  • The waivers and limitations in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Neither party may bring a claim or action, regardless of form, arising out of the Agreement more than twelve (12) months after the claim or cause of action arose.
  1. INDEMNIFICATION
  • UP Indemnification. UP will indemnify, defend, and hold harmless Client and its officers, directors, agents and employees from and against any and all third-party claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys’ fees finally awarded therefrom) (“Claims”) to the extent such Claims arise from UP’s infringement of a third-party’s intellectual property rights in the United States, as it relates to Client’s use of the Services or UP Platforms.
  • Client Indemnification. Client will indemnify, defend, and hold harmless UP, its affiliates and their respective officers, directors, agents and employees from and against any and all third-party Claims to the extent such Claims arise from or relate to: (1)Client Data; (2) Client’s breach of the Agreement; (3) Client’s gross negligence or willful misconduct; (4) modification to the Services, UP Platforms, or any deliverables made by or at the direction of Client and designed solely in accordance with specifications provided by Client, with no input by UP; (5) Client’s violation of applicable law; and/or (6) any infringement of intellectual property rights of a third party.
  • Indemnification Procedure. When seeking indemnification pursuant to this Agreement, the party seeking indemnification shall (1) promptly notify the indemnifying party in writing of the Claim provided that any failure or delay to provide to such notice shall not affect a party’s obligation to indemnify to the extent the indemnifying party is materially prejudiced by such failure or delay (2) give the indemnifying party reasonable information and cooperation required to defend such suit, claim or proceeding, and (3) allow the indemnifying party to control the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, the indemnifying party shall not settle any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may be represented in the defense of any such claim, at the indemnified party’s expense, by counsel of its selection. The indemnified party shall have no liability for settlements made or costs incurred without its consent. The absence of insurance shall not diminish any responsibility of either party’s obligation to indemnify under the Agreement.
  • Mitigations and Exceptions. In response to an actual or potential infringement Claim, if required by settlement or injunction or as UP determines necessary to avoid material liability UP may at its option: (a) procure rights for Client’s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services’ overall functionality, or if options (a) and (b) are not commercially practicable, (c) terminate the affected Order Form and refund to Client any prepaid, unused fees for the terminated portion of the Services. UP’s obligations in this Section do not apply (1) to infringement resulting from Client’s modification of the Services or use of the Services in combination with items not provided by UP (including Third-Party Providers), (2) to infringement resulting from use of the Services other than the most recent release, (3) to unauthorized use of the Services, or (4) if Client settles or makes any admissions about a claim without UP’ prior written consent. This Section sets out Client’s exclusive remedy and UP’ entire liability regarding infringement of third-party intellectual property rights.
  1. CONFIDENTIALITY
  • Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose any non-public information about the disclosing party’s business or activities that is proprietary and confidential that is furnished to it by the disclosing party pursuant to the Agreement which (i) if disclosed in tangible form is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (i) was properly in receiving party’s possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to receiving party by a third party without restriction; (iii) is, or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of the Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release.
  • Return of Confidential Information. Upon termination of the Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to the disclosing party the original and all copies of all Confidential Information or, in lieu thereof, certify that all such Confidential Information has been destroyed; and (ii) destroy all notes and copies thereof made by receiving party containing any Confidential Information, provided that neither party shall be obligated to return or destroy Confidential Information to the extent necessary to fulfill its obligations and to enforce its rights under the Agreement or to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data; provided that any such Confidential Information so not returned or destroyed shall remain subject to the confidentiality and use covenants contained herein, without regard to term.
  • Confidentiality and Non-Use. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party shall use reasonable care to protect the Confidential Information using at least the same degree of care the receiving party uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for the UP, the subcontractors referenced herein), provided it remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section.
  • Each party agrees that unauthorized use or disclosure of Confidential Information may cause substantial harm for which money damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, including an injunction (without the necessity of posting any bond or surety), in addition to other available remedies, for breach or threatened breach of this Section.
  • Permitted Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Client Data and other Confidential Information, to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under the Agreement, provided such disclosure is only made to the receiving party’s employees, agents, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality no less restrictive than the duties in this Section; (ii) complying with applicable law, rules, or regulations; or (iii) submitting information to tax or other governmental authorities. If a party is required to make any disclosure of the disclosing party’s Confidential Information in accordance with subsections (ii) and (iii) above, to the extent it can legally do so, it will give reasonable advance written notice to the disclosing party of such intended disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (such as seeking, or allowing the disclosing party a reasonable opportunity to seek, a protective orders or otherwise).
  1. NON-SOLICITATION. During the Term of this Agreement and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement on behalf of UP or its affiliates who is in the employment of the UP or its affiliates.
  1. Neither party may publicly announce this Agreement except with the other party’s prior written consent or as required by Law. However, UP may include Client and its trademarks in its customer lists and promotional materials but will cease use at Client’s written request.
  1. GENERALPROVISIONS
  • Relationship of the Parties. The parties are independent contractors, not agents, partners, or joint venturers.
  • Assignment. UP and Client may not assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement upon notice in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
  • Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements or communications regarding its subject matter, whether written or oral. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
  • Updates to Agreement. UP reserves the right to alter the terms of this Agreement at any time. Client agrees to review the latest version of the Agreement on the UP website periodically to remain aware of any modifications to the Agreement. Any use of the Services after alteration of the Agreement will constitute acceptance by Client of such changes.
  • Notices. Except as set out in this Agreement, notices under this Agreement must be in writing and will be deemed received (a) immediately upon personal delivery or delivery via email, (b) the business day following delivery via nationally-recognized overnight courier service, or (c) the third business day following delivery via first-class registered or certified mail. Notices should be addressed to the signatory and address on the first page of this Agreement, or the contact information associated with Client’s account provided at registration, as applicable. UP and Client may update their contact information for notice by providing notice to the other party. The UP may also send operational notices to Client electronically, including through the Services.
  • Equitable Relief. Client and UP agree that a breach of this Agreement may cause irreparable injury and damage, and that the non-breaching party will be entitled to injunctive and other equitable relief to prevent a breach, in addition to any other remedy to which the non-breaching party might be entitled.
  • Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of law provisions and without regard to the United Nations Convention on the International Sales of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in Wilmington, Delaware, and both parties submit to the personal jurisdiction of those courts. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, ARISING OUT OF THIS AGREEMENT.
  • Force Majeure. UP and Client are not liable for any delay or failure to perform any obligations under this Agreement (except for payment obligations) due to events beyond their reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
  • UP may use subcontractors and permit them to exercise UP’s rights under the Agreement, but UP remains responsible for the subcontractors and the delivery of the Services to Client under this Agreement.
  • Waivers and Severability. Waiver by a party of any breach of any provision of the Agreement must be in writing and signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
  • Third Parties. Except as expressly provided herein, this Agreement does not create or establish any rights or beneficiaries for any person or entity that is not a party to this Agreement.
  • Client acknowledges that the Services are subject to export control and economic sanctions restrictions imposed by the U.S. government and import restrictions by certain foreign governments (collectively “Trade Laws”). In using or accessing the Services, Client will not and will not allow any third party to use the Services in violation of any Trade Laws or remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof to any location, party or end-use which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Client represents and warrants that it and any of its Authorized Users: (i) are not listed on any U.S. government list of prohibited or restricted parties, including the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; (ii) are not an entity or person who is organized under the laws of, ordinarily resident in, or controlled by the government of, any country or region (1) that is subject to a U.S. government embargo or comprehensive sanction, (2) to which the U.S. has prohibited export transactions, or (3) that has been designated by the U.S. government as a “terrorist supporting” country; (iii) will not use the Services for the manufacture, design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity; and (iv) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations or listed on the Commerce Control List unless approved in writing by UP. Client will notify UP promptly if it or any Authorized User becomes subject to any order or restriction listed in this Section.
  • Compliance with Laws. Each party shall comply with all applicable laws as it relates to the performance of this Agreement.
  • Open Source and Third-Party Software. The Services may incorporate third-party open source software (“OSS”), as listed in the Documentation or provided by UP upon request. Client’s internal use of the unmodified Services in the form provided and as authorized in this Agreement will not require Client to comply with the terms of OSS licenses.
  • Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.

EXHIBIT A

BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (“Agreement”) is made and entered into between
UP (“Business Associate”) and Client (“Covered Entity”) as an integral part of the Master Services Agreement to which it is attached. The Agreement is effective as of the date the parties first exchange Protected Health Information (as defined below).

  1. Terms used, but not otherwise defined in this Agreement, shall have the same meaning as those terms in the HIPAA Rules and HITECH Act.

Breach. “Breach” shall have the same meaning as the term “breach” in 45 CFR §164.402, as applied to the Unsecured Protected Health Information created, received, maintained, or transmitted by Business Associate from or on behalf of Covered Entity.

Electronic Health Record. “Electronic Health Record” shall have the same meaning as the term in Section 13400 of the HITECH Act.

“Electronic Protected Health Information” or “ePHI” shall have the meaning given to the term “electronic protected health information” at 45 C.F.R. § 160.103, as applied to the information created, received, maintained, or transmitted by Business Associate from or on behalf of Covered Entity.

HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

HITECH Act. “HITECH Act” shall mean The Health Information Technology for Economic and Clinical Health Act, part of the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Stimulus Package”), specifically DIVISION A: TITLE XIII Subtitle D—Privacy, and its corresponding regulations as enacted under the authority of the Act.

Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).

Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.

Protected Health Information. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR §160.103, limited to the information created, received, maintained or transmitted by Business Associate on behalf of Covered Entity.

“Reportable Event” means any (1) Use or Disclosure of Protected Health Information not provided for by this Agreement; (2) Security Incident; or (3) Breach of Unsecured Protected Health Information.

Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.

Security Incident. “Security Incident” shall have the same meaning as the term “Security Incident” in in 45 CFR §164.304, as applied to electronic Protected Health Information created, received, maintained, or transmitted by Business Associate from or on behalf of Covered Entity.

Security Rule. “Security Rule” shall mean the Standards for Security of Electronic Protected Health Information at 45 C.F.R. parts §160 and §164, Subparts A and C.

Subcontractor. “Subcontractor” shall mean a person or entity “that creates, receives, maintains, or transmits protected health information on behalf of a business associate” and who is now considered a business associate, as the latter term is defined in in in 45 CFR §160.103.

Unsecured Protected Health Information. “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” in 45 CFR §164.402.

  1. Obligations and Activities of Business Associate.
    • Business Associate agrees to not Use or Disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
    • Business Associate agrees to use appropriate safeguards reasonably designed to prevent Use or Disclosure of Protected Health Information other than as provided for by this Agreement. Business Associate further agrees to implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of any ePHI, as provided for in the Security Rule and as mandated by Section 13401 of the HITECH Act.
    • Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement.
    • Business Associate agrees to report to Covered Entity any Reportable Event of which it becomes aware. All such reports shall be made without unreasonable delay and in no case later than ten (10) business days after Business Associate’s discovery of a Reportable Event. The report required hereunder shall include, to the extent possible or available: (i) the identification of each Individual whose Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, lost, modified, destroyed, or disclosed during the Reportable Event; (ii) a brief description of what happened, including the date of the Reportable Event and the date of the discovery of the Reportable Event; (iii) a description of the types of Protected Health Information involved; (iv) any steps Individuals should take to protect themselves from potential harm resulting from the Reportable Event; (v) a brief description of what Business Associate is doing to investigate, remediate, and respond to the Reportable Event, mitigate harm to Individuals, and protect against further Reportable Events; and (vi) such other information that is reasonably available to Business Associate that Covered Entity would reasonably be expected to need to fulfill its notification obligations with respect thereto. Business Associate shall supplement its initial notification as additional information is obtained.
    • The parties acknowledge and agree that this Section (2)(f) constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents that do not result in unauthorized access to, or Use, loss, modification, destruction, or Disclosure of, Protected Health Information, such as pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, unsuccessful denial of service attacks, or any combination thereof. The parties acknowledge and agree that no further notice shall be required of such unsuccessful Security Incidents so long as such incidents do not result in unauthorized access to, or Use or Disclosure of, Protected Health Information.
    • Business Associate agrees to ensure that any Subcontractor, to whom Business Associate provides Protected Health Information, agrees to no less restrictive restrictions and conditions that apply through this Agreement to Business Associate with respect to such information. Business Associate further agrees that restrictions and conditions analogous to those contained herein shall be imposed on said Subcontractors via a written agreement that complies with all the requirements specified in §164.504(e)(2), and that Business Associate shall only provide said Subcontractors Protected Health Information consistent with Section 13405(b) of the HITECH Act.
    • Business Associate agrees to provide access, at the request of Covered Entity and during normal business hours, to Protected Health Information in a Designated Record Set to Covered Entity or, as directed by Covered Entity, to an Individual, in order to meet Covered Entity’s requirements under 45 CFR §164.524, provided that Covered Entity delivers to Business Associate a written notice at least three (3) business days in advance of requesting such access. Business Associate further agrees, in the case where Business Associate controls access to Protected Health Information in an Electronic Health Record, or controls access to Protected Health Information stored electronically in any format, to provide similar access in order for Covered Entity to meet its requirements the HIPAA Rules and under Section 13405(c) of the HITECH Act. These provisions do not apply if Business Associate and its employees or Subcontractors have no Protected Health Information in a Designated Record Set of Covered Entity.
    • Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 CFR §164.526, at the request of Covered Entity or an Individual. This provision does not apply if Business Associate and its employees or Subcontractors have no Protected Health Information from a Designated Record Set of Covered Entity.
    • Unless otherwise protected or prohibited from discovery or disclosure by law, Business Associate agrees to make internal practices, books, and records, including policies and procedures (collectively “Compliance Information”), relating to the Use or Disclosure of Protected Health Information and the protection of same, available to the Secretary for purposes of the Secretary determining Covered Entity’s compliance with the HIPAA Rules and the HITECH Act.
    • Business Associate agrees to maintain necessary and sufficient documentation of Disclosures of Protected Health Information as would be required for Covered Entity to respond to a request by an Individual for an accounting of such Disclosures, in accordance with 45 CFR §164.528.
    • On request of Covered Entity, Business Associate agrees to provide to Covered Entity documentation made in accordance with this Agreement to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. §164.528. Business Associate shall have a reasonable time within which to comply with such a request from Covered Entity and in no case shall Business Associate be required to provide such documentation in less than three (3) business days after Business Associate’s receipt of such request.
    • Except as provided for in this Agreement, in the event Business Associate receives an access, amendment, accounting of disclosure, or other similar request directly from an Individual, Business Associate shall redirect the Individual to the Covered Entity.
    • To the extent that Business Associate carries out one or more of Covered Entity’s obligations under the HIPAA Rules, the Business Associate must comply with all requirements of the HIPAA Rules that would be applicable to the Covered Entity.
    • A Business Associate will restrict certain disclosures of protected health information to a health plan where the individual pays out of pocket in full for the healthcare item or service, in accordance with HITECH Act Section 13405(a). of which the Covered Entity or the Individual makes the Business Associate aware.
  2. Permitted Uses and Disclosures by Business Associate.
    • Except as otherwise limited by this Agreement, Business Associate may make any Uses and Disclosures of Protected Health Information necessary to perform its services to Covered Entity and otherwise meet its obligations under this Agreement, if such Use or Disclosure would not violate the Privacy Rule, or the privacy provisions of the HITECH Act, if done by Covered Entity.
    • Except as otherwise limited in this Agreement, Business Associate may Use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
    • Except as otherwise limited in this Agreement, Business Associate may Disclose Protected Health Information for the proper management and administration of the Business Associate, provided that Disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is Disclosed that it will remain confidential and used, or further Disclosed, only as required by law, or for the purpose for which it was Disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
    • Except as otherwise limited in this Agreement, Business Associate may Use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 CFR §164.504(e)(2)(i)(B). Business Associate agrees that such Data Aggregation services shall be provided to Covered Entity only wherein said services pertain to Health Care Operations (as defined by 45 CFR §164.501).
    • Business Associate may Use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with §164.502(j)(1).
    • Business Associate shall make Uses, Disclosures, and requests for Protected Health Information consistent with the Minimum Necessary principle consistent with Privacy Rule Standards found at §164.502(b) and §164.514(d)(1).
    • Except as otherwise limited in this Agreement or the Services Agreement, Business Associate may Use Protected Health Information to create de-identified information in accordance with 45 C.F.R. §§ 164.502(d) and 164.514(a)-(c).
  3. Obligations and Activities of Covered Entity.
    • Covered Entity shall notify Business Associate of the provisions and any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR §164.520, to the extent that such provisions and limitation(s) may affect Business Associate’s Use or Disclosure of Protected Health Information.
    • Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by an Individual to Use or Disclose Protected Health Information, to the extent that the changes or revocation may affect Business Associate’s use or disclosure of Protected Health Information.
    • Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR §164.522, and also notify Business Associate regarding restrictions that must be honored under section 13405(a) of the HITECH Act, to the extent that such restrictions may affect Business Associate’s Use or Disclosure of Protected Health Information.
    • Covered Entity shall notify Business Associate of any modifications to accounting disclosures of Protected Health Information under 45 CFR §164.528, made applicable under Section 13405(c) of the HITECH Act, to the extent that such restrictions may affect Business Associate’s use or disclosure of Protected Health Information.
    • Covered Entity shall not require Business Associate to Use or Disclose Protected Health Information in any manner that would not be permissible under the HIPAA Rules if done by the Covered Entity.
  4. Term and Termination.
    • Term. The Term of this Agreement shall begin as of the Effective Date and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Agreement.
    • Termination for Cause by Covered Entity. Upon Covered Entity’s knowledge of a material breach of this Agreement by Business Associate, Covered Entity shall give Business Associate written notice of such breach and provide reasonable opportunity for Business Associate to cure the breach or end the violation. Covered Entity may terminate this Agreement, and Business Associate agrees to such termination, if Business Associate has breached a material term of this Agreement and does not cure the breach or cure is not possible.
    • Termination for Cause by Business Associate. Upon Business Associate’s knowledge of a material breach of this Agreement by Covered Entity, Business Associate shall give Covered Entity written notice of such breach and provide reasonable opportunity for Covered Entity to cure the breach or end the violation. Business Associate may terminate this Agreement, and Covered Entity agrees to such termination, if Covered Entity has breached a material term of this Agreement and does not cure the breach or cure is not possible.
    • Effect of Termination.
      • Except as provided in paragraph (2) of this section, upon termination of this Agreement for any reason, Business Associate shall return or destroy all Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity.
      • In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further Uses and Disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.
  1. Entire Agreement.
    • This Agreement, together with the Services Agreement and any statements of work, exhibits, or other addenda thereto, sets forth the entire understanding between the parties and supersedes any previous or contemporaneous understandings, commitments, representations, warranties, or agreements, written or oral, regarding the subject matter hereof. No representations, agreements, or understandings of any kind, either written or oral, except as set forth or incorporated by reference into this Agreement or the Services Agreement, have been relied upon in entering into this Agreement, nor shall any such representations, agreements, or understandings be binding upon the parties unless expressly contained herein or therein.
    • This Agreement may be modified only by a signed written agreement between Covered Entity and Business Associate.
  2. Governing Law.
    • This Agreement shall be construed, administered, and governed by the governing law set forth in the Services Agreement, except to the extent preempted by applicable federal law. In the event that the Services Agreement does not identify the governing law, this Agreement shall be construed, administered, and governed under the laws of the State of Delaware, except to the extent preempted by applicable federal law, the parties agree to submit to personal jurisdiction in the State of Delaware. Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.
    • Regulatory References. A reference in this Agreement to a section in the HIPAA Rules or HITECH Act means the section as in effect or as amended.
    • The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity and Business Associate to comply with the requirements of the Privacy Rule, Security Rule, the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), and the HITECH Act, and its corresponding regulations.
    • The respective rights and obligations of Business Associate under Section 5(d) of this Agreement shall survive the termination of this Agreement.
    • Notwithstanding any provision to the contrary in this Agreement or the Services Agreement, to the extent that any term in this Agreement is directly contradictory to a term in the Services Agreement, the term in this Agreement shall supersede such contradictory term with regard to the subject matter of this Agreement and to the extent necessary to permit compliance with HIPAA. Any ambiguity in this Agreement shall be resolved to permit Covered Entity and Business Associate to comply with the Privacy Rule, Security Rule, the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), and the HITECH Act, and its corresponding regulations.
    • Severability. If any provision or provisions of this Agreement is/are determined by a court of competent jurisdiction to be unlawful, void, or unenforceable, this Agreement shall not be unlawful, void or unenforceable thereby, but shall continue in effect and be enforced as though such provision or provisions were omitted.
    • No Third Party Beneficiaries. This Agreement is between the parties hereto. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, any rights, remedies, obligations, or liabilities whatsoever upon any person other than Covered Entity and Business Associate and any respective successors and assigns.
    • Relationship of the Parties. The parties to this Agreement are independent contractors. None of the provisions of this Agreement are intended to create, nor shall they be interpreted or construed to create, any relationship between Covered Entity and Business Associate other than that of independent contractors. Except as otherwise expressly set forth herein, neither party, nor any of its representatives, shall be deemed to be the agent, employee, or representative of the other party.
    • All notices hereunder shall be in writing, and either delivered by hand, or sent by mail, email, or delivered in such other manner as the parties may agree upon, to the following:

To Company:

Attention: _______________

Email:___________________

To Business Associate:

Attention: _______________

Email:___________________

Each party reserves the right to change address for receiving notice during the term of this Agreement upon written notice to the other parties.

Signature Page Follows

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized officers.

COMPANY

BUSINESS ASSOCIATE

 

___________________

By:

By:

Name:

Name:

Title:

Title:

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