Terms and Conditions
Healthcare Systems & Technologies, LLC
Terms and Conditions
The Order Form between HST and Customer is governed by these Terms and Conditions (together with the Order Form and the business associate addendum attached as Exhibit A to the Order Form, this “Agreement”). This Agreement governs the relationship between HST and Customer. Capitalized terms used and not defined herein have the definitions set forth in the Order Form.
- “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer.
- “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
- “Documentation” means any non-marketing written or electronic technical specifications or materials provided by HST to Customer for use in connection with the Software and, to the extent consistent with and not limiting of the foregoing, the Specifications.
- “Enhancement” means the (i) addition of a new Software feature or (ii) modification of or change to an existing Software feature.
- “Equipment” means the computer hardware, network and telecommunications infrastructure, and miscellaneous items owned or purchased by Customer for use in connection with the Software, which Equipment must meet HST specifications.
- “Error” means a failure of the Software to conform to the Specifications.
- “HST Materials” means all Software, HST Systems, computer programs, source code, object code, database design, Documentation, know-how, and technology, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports embodied therein, in printed, graphic, or machine-readable format, which are used or provided by HST in connection with the Software or the Services, or provided by HST to Customer. For the avoidance of doubt, HST Materials include Resultant Data and any information, data, or other content derived from HST’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
- “HST Systems” means the information technology infrastructure used by or on behalf of HST in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by HST or through the use of third-party services.
- “License” means the license granted by HST to Customer to use the Software.
- “Resultant Data” means data and information related to Customer’s use of the Services that is used by HST in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Software” means the software application or applications and any third-party or other software, and any Upgrades or Enhancements thereto, that HST provides remote access to and use of as part of the Services described in Exhibit A.
- “Specifications” means such specifications for the Services as may be provided to Customer by HST.
- “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to HST.
- “Upgrade” means a new release of the same version of the Software constituting a compendium of Enhancements.
- “Use” means copying or transmitting any portion of the Software or Documentation into a computer and processing of the instructions or statements contained in the Software.
2. Software License
Subject to the terms and conditions of this Agreement, during the Term HST (a) will provide the Services to Customer, directly or through subcontractors, including hosting, managing, operating, and maintaining the Software for remote electronic access and use by Customer (“Hosted Services”) and (b) hereby grants to Customer a non-exclusive, non-transferable, and non-assignable License to Use the Services and Documentation during the Term, solely in connection with its internal business purposes relating to the operation of an outpatient ambulatory surgery center at the Location. The License conveys no right, title, or interest in or to any intellectual property rights in or relating to the Services, HST Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the HST Materials, and the Third-Party Materials are and will remain with HST and the respective rights holders in the Third-Party Materials.
3. License Limitations and Restrictions
Customer may not, and may not or permit any third party to, access or use the Services or HST Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer may not, and may not or permit any third party to, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or HST Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or HST Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or HST Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or HST Materials; (e) input, upload, transmit, or otherwise provide to or through the Services or HST Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, HST Systems or HST’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or HST Materials, including any copy thereof; (h) access or use the Services or HST Materials for purposes of competitive analysis of the Services or HST Materials, the development, provision or use of a competing software service or product or any other purpose that is to HST’s detriment or commercial disadvantage; or (i) otherwise access or use the Services or HST Materials beyond the scope of the License.
Customer is responsible for the readiness of Equipment, facilities, Internet access, necessary bandwidth and network infrastructure, proper Microsoft operating systems for desktop and laptop computers, and personnel for utilization of the Software at the Location (as defined herein), and the same must be ready prior to commencement of Virtual Training. Customer is also responsible for identifying authorized users of the Services. If Customer does not have all of the above ready for Virtual Training when scheduled, Customer must reimburse HST for any expenses, including Travel Expenses, incurred by HST, unless Customer has notified HST of the unavailability at least 30 days prior to the scheduled Virtual Training date.
5. Intellectual Property Rights
- Services and HST Materials. All right, title, and interest in and to the Services and HST Materials, including all intellectual property rights therein, are and will remain with HST and the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Services or HST Materials (including Third-Party Materials) except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to Section 3. All other rights in and to the Services and HST Materials (including Third-Party Materials) are expressly reserved by HST and the respective third-party licensors.
- Customer Data. As between Customer and HST, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted in subsection (c).
- Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to HST: (i) as are necessary or useful to (A) perform the Services and (B) enforce this Agreement and exercise its rights and perform its duties hereunder; and (ii) to de-identify and/or aggregate any such information as necessary and useful for HST’s reasonable purposes provided that the de-identification conforms to the requirements of 45 C.F.R. § 164.514(b).
6. Control of Services; Additional Services
- Service and System Control. As between the Parties:
- HST has and will retain sole control over the operation, provision, maintenance and management of the Services and HST Materials, including the: (A) HST Systems; (B) selection, deployment, modification, and replacement of the Software; and (C) performance of Services and maintenance, Upgrades, Enhancements, corrections, and repairs; and
- Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and have sole responsibility for all access to and use of the Services and HST Materials by or through the Customer Systems or any other means controlled by Customer, including any: (A) information, instructions or materials provided by any of them through or to the Services or HST; (B) results obtained from any use of the Services or HST Materials; and (C) conclusions, decisions, or actions based on such use.
- Changes. HST reserves the right, in its sole discretion, to make any changes to the Services and HST Materials that it deems necessary or useful to: (i) maintain or enhance the quality, performance, or delivery of the Software or Services; or (ii) comply with applicable law.
- Suspension or Termination. HST may suspend, terminate or otherwise deny Customer’s and/or any user’s access to or use of all or any part of the Software or Services or HST Materials, without incurring any resulting obligation or liability, if HST believes in good faith that: (i) Customer or any user has materially breached this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (ii) this Agreement expires or is terminated. This Section does not limit any of HST’s other rights or remedies, whether at law, in equity or under this Agreement.
- Enhancements and Upgrades. HST will provide such Enhancements and Upgrades to Customer as it provides to other users of the Software from time to time.
- Consulting and Management. Consulting and management services will be provided by HST only after Customer has entered into a separate consulting agreement with HST. HST is not required by this Agreement to provide any additional consulting or management services.
- Customization. At its sole discretion, HST may accommodate special requests from Customer for customization of the Software or, if applicable, the print template of a pre-assessment form. However, additional charges will be assessed for any such customization, the exact amount of which will be determined by HST based upon the nature of the request. The terms of any customization must be evidenced by a written customization amendment to this Agreement, executed by the Parties.
7. Customer Obligations
- Customer Systems and Cooperation. Prior to installation of the Software and commencement of Virtual Training, Customer is responsible for obtaining, and will obtain, the proper Microsoft operating systems for desktop and laptop computers at Customer’s expense and ensure that Customer Systems and network infrastructure and bandwidth meet HST specifications for access to and operation of the Software. Customer will at all times during the Term: (i) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (ii) provide HST personnel with such access to Customer’s premises and Customer Systems as may be necessary for HST to perform the Services in accordance with the Availability Requirement and Specifications; and (iii) provide all cooperation and assistance as HST may reasonably request to enable HST to exercise its rights and perform its obligations under and in connection with this Agreement. If Customer fails to have all things in readiness for On-Site Support, if applicable, then Customer must reimburse HST for any and all expenses caused by Customer’s failure to have things in readiness, unless Customer has notified HST of such failure at least 30 days prior to the training date.
- Customer Failure or Delay; Users and Access Credentials. HST is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (a “Customer Failure”). Customer is responsible for the acts and omissions of its users and for any access using Customer’s or a user’s access credentials, whether or not authorized.
- Verification of Information. In connection with certain Services, HST obtains information from Customer’s patients and may provide Customer with various data and reports, each of which Customer may use in connection with health-related services and procedures for the applicable patient, and for which Customer is solely responsible for verifying that all information is up-to-date and accurate.
8. Service Levels
- Service Levels. Subject to the terms and conditions of this Agreement, HST will use commercially reasonable efforts to make the Hosted Services Available at least 99.5% of the time as measured by HST over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by Customer over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer to access or use the Hosted Services that is due, in whole or in part, to any: (i) act or omission by Customer, or anyone using Customer’s or a user’s access credentials, that does not strictly comply with this Agreement and the Specifications; (ii) Customer Failure; (iii) Customer’s Internet connectivity; (iv) Force Majeure Event; (v) failure, interruption, outage or other problem with any software, hardware, system, network, facility, or other matter not supplied by HST pursuant to this Agreement; (vi) Scheduled Downtime; or (viii) disabling, suspension or termination of the Services pursuant to subsection 6(c).
- Scheduled Downtime. HST will use commercially reasonable efforts to: (i) schedule downtime for routine maintenance of the Hosted Services during non-business hours; and (ii) give Customer at least 48 hours’ prior notice and, if possible seven (7) days’ notice, of any scheduled outages (“Scheduled Downtime”). In addition, Customer will have limited access to HST’s production servers between 1 a.m. and 3 a.m. Central Time each morning due to scheduled backups and routine maintenance.
- Support Services. The Services include HST’s standard Customer support services (“Support Services”) in accordance with the HST service support schedule.
9. Pass-Through Fees; Taxes; Setoff
- Pass-Through Fees. Fees exclude pass-through fees (“Pass-Through Fees”) from business partners, which will be billed monthly and without prior notice, in addition to all other fees Customer pays under this Agreement. Pass-Through Fees cover, among other things, the fees that HST pays our business partners for CPT and ICD codes. Notwithstanding any other provision of this Agreement to the contrary, HST will have the right to increase the Pass-Through Fees to offset any increases in rates or other costs.
- Taxes. All sums payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any sums payable by Customer hereunder, other than any taxes imposed on HST’s income.
- No Deductions or Setoffs. All amounts payable to HST under this Agreement will be paid by Customer to HST in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than deduction or withholding of tax as may be required by applicable law).
- Confidential Information. In connection with this Agreement each Party (“Disclosing Party”) may disclose or make available Confidential Information to the other Party (“Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including, but not limited to, information consisting of or relating to the Disclosing Party’s technology, systems, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, all HST Materials and the financial terms of this Agreement are the Confidential Information of HST.
- Protection of Confidential Information. The Receiving Party may: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) not disclose or permit access to Confidential Information other than to its employees, officers, consultants, agents, independent contractors, and legal advisors (“Representatives”) who: (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (B) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10; and (C) are bound by written confidentiality obligations at least as protective of the Confidential Information as the terms set forth herein; (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (iv) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.
- Exclusions. “Confidential Information” excludes information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- Compelled Disclosures. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then the Receiving Party will promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy.
- Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into this Agreement; and (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- HST Warranties. HST represents and warrants that: (i) all Services performed by HST’s personnel under this Agreement will be performed in a professional manner in accordance with industry standards; (ii) to the best of its knowledge, the Use by Customer of the Software in accordance with the Documentation will not infringe upon any U.S. copyright or trademark rights of any third party; and (iii) the Software will operate in accordance with the Specifications during the Term. If Customer notifies HST in writing of a substantial non-conformity between the Specifications and the Software, and if HST is able to replicate and verify that such substantial non-conformity exists, then HST may, at its sole option, (y) replace or correct the Software so that the Software substantially conforms to the Specifications, or (z) terminate this Agreement. The remedies set forth in this subsection (b) are the sole remedies with respect to any breach of the warranty provided in subsection (iii). EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, ALL SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND HST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO THE SOFTWARE AND THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. HST FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO INTERNET CONNECTIVITY AT THE LOCATION OR THE TRANSPORT OF INFORMATION VIA THE INTERNET. FOR PURPOSES OF THIS SECTION, THE TERM “INTERNET” INCLUDES ELECTRONIC DATA INTERCHANGE (EDI). FINALLY, CUSTOMER ACKNOWLEDGES THAT HST DOES NOT MANUFACTURE MICROSOFT SQL SERVER, THE MICROSOFT NETWORK OPERATING SYSTEM SOFTWARE, OR ANY EQUIPMENT THAT CUSTOMER MAY USE OR PURCHASE IN CONNECTION WITH THE INSTALLATION OF THE SOFTWARE, AND DOES NOT WARRANT DESIGN, FUNCTIONALITY, OR WORKMANSHIP OF SUCH MICROSOFT SOFTWARE OR EQUIPMENT.
- Links to External Sites. The Software may include links to websites that are owned and operated by third parties not under the control of HST. HST provides the links for convenience only and does not provide a warranty of any type regarding the actions of such third parties or the security of information sent to such third parties while Customer is using their websites. Under no circumstances will HST be responsible or liable in any way for the availability of services or products offered, or the content located on or through, any such third party’s website.
12. Indemnification; Limitation on Liability
- HST Indemnification. HST will indemnify, defend, and hold harmless Customer from and against losses, damages, and reasonable costs and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by Customer arising out of or relating to any claim, suit, action, or proceeding, whether arising out of law or equity (each, an “Action”), by a third party (other than an affiliate of Customer) to the extent that such Losses arise from (i) HST’s negligence, (ii) HST’s material breach of this Agreement, or (iii) an allegation that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in compliance with this Agreement (including the Specifications) infringes a third party’s U.S. patent, trade secret, or copyright; provided that the obligation in subsection (iii) does not apply to any Action or Losses arising out of or relating to any: (x) access to or use of the Services or HST Materials in combination with any hardware, system, software, network or other materials or service not provided by HST; (y) modification of the Services or HST Materials other than (A) by or on behalf of HST, (B) with HST’s written approval in accordance with the Specifications; or (z) failure to timely implement any modifications, Upgrades, replacements, or Enhancements.
- Customer Indemnification. Customer will indemnify, defend, and hold harmless HST from and against Losses incurred by HST in connection with any Action by a third party (other than an affiliate of HST) to the extent that such Losses arise out of or relate to any: (i) Customer’s material breach of this Agreement; (ii) Customer’s negligence; or (iii) violations of the Telephone Consumer Protection Act (TCPA) by Customer or any Customer agent or affiliate.
- Limitations on Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE AMOUNT PAID TO HST UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE CAUSE OF THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST DATA, INCURRED BY THE OTHER PARTY, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, OR SERVICES, PRODUCTS AND SOFTWARE TO BE PROVIDED HEREUNDER, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED TO, OR COULD HAVE REASONABLY BEEN FORESEEN BY, SUCH PARTY.
- Mitigation. If any of the Services or HST Materials are, or in HST’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party’s S. patent, trade secret, or copyright, or if Customer’s use of the Services or HST Materials is enjoined or threatened to be enjoined, HST may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Services and HST Materials materially as contemplated by this Agreement; (ii) modify or replace the Services and HST Materials, in whole or in part, to seek to make the Services and HST Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or (iii) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and HST Materials. This Section 12 sets forth Customer’s sole remedies and HST’s sole liability and obligation regarding any actual, threatened, or alleged claims that the Software infringes, misappropriates, or otherwise violates any third-party intellectual property right.
- Default. Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party: (i) materially breaches this Agreement or is in material default of any obligation hereunder, which default is incapable of cure or which has not been cured within 30 days of written notice of such breach or default from the non-defaulting Party; (ii) becomes insolvent or adjudicated as bankrupt, or any action is taken by a Party, or by others against a Party, under any insolvency, bankruptcy or reorganization act, and such action is not fully dismissed within 60 days of the institution thereof; or (iii) makes an assignment for the benefit of creditors or a receiver is appointed for such Party.
- Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (i) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate; (ii) HST will disable all Customer access to the Hosted Services and HST Materials; (iii) Customer will immediately cease all use of any Services or HST Materials and (A) promptly return to HST, or at HST’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any HST Materials or HST Confidential Information, and (B) permanently erase all HST Materials and HST Confidential Information from all Customer Systems; (iv) all information and materials described in this subsection (b) will remain subject to all confidentiality, security and other applicable requirements of this Agreement; and (v) if HST terminates this Agreement for Customer’s failure to pay, all fees that would have become payable had this Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer will pay such fees, together with all previously-accrued but not yet paid fees, on receipt of HST’s invoice therefor. Notwithstanding the foregoing, (x) with respect to information and materials then in its possession or control, the Receiving Party may retain the Disclosing Party’s Confidential Information in its then current state and solely to the extent and for so long as required by applicable law and (y) HST may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course. The rights of either Party to terminate this Agreement are not exclusive of any other remedies given to either Party by this Agreement or by law. All rights of each Party regarding defaults of the other Party are cumulative.
- Surviving Terms. Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive such expiration or termination.
- BAA. The Parties agree to the terms of the Business Associate Addendum attached as Exhibit A to the Order Form.
- Notices. Any notice, request, consent, demand, or other communications under this Agreement must be sent in writing and addressed to a Party as set forth in the Order Form (or to such other address or such other person that such Party may designate from time to time in accordance with this subsection (b)). Notices will be deemed given (i) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (ii) two (2) days after mailing if by overnight commercial delivery.
- Assignment. Neither Party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other Party’s prior written consent, which may not be unreasonably withheld; provided, that HST may assign this Agreement to any purchaser of all or substantially all of its assets without Customer’s consent. Any purported assignment, delegation, or transfer in violation of this subsection (c) is void.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Amendment; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by either Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has the authority to contract for or to bind the other Party in any manner whatsoever.
- Dispute Resolution. The Parties will attempt in good faith to resolve any dispute arising out of or in connection with this Agreement by negotiation and consultation between themselves. If any such dispute is not resolved on an informal basis within 30 business days after one Party delivers the dispute notice to the other Party, then either Party may, by written notice to the other Party, initiate binding arbitration proceedings. Arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The place of arbitration will be Nashville, Tennessee. The judgment of the arbitration tribunal will be accompanied by a written statement of the basis for such judgment and may be enforced by any court having proper jurisdiction. The provisions of this subsection (g) will survive the termination of this Agreement. Any provisional remedy that would be available from a court of law will be available from the arbitrator to the Parties pending arbitration. Notwithstanding the foregoing, either Party may seek from a court of competent jurisdiction any interim or provisional relief that is necessary to protect the rights or property or that Party, pending the Parties’ selection of the arbitrator.
- Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the state of Tennessee without giving effect to any choice or conflict of law provision. Any legal action or proceeding brought by either Party and arising out of this Agreement may be brought in the state or federal courts located in Davidson County, Tennessee. No legal action or proceeding, regardless of form, arising under this Agreement, may be brought more than one (1) year after the cause of action has arisen.
- Legal Fees. In any arbitration or civil action between HST and Customer arising from or in connection with this Agreement, or its breach, the prevailing party in such action will be entitled, in addition to damages and injunctive or other relief, to reimbursement of its reasonable attorneys’ fees.
- Licenses and Permits. If any governmental license or permit is required for the proper and lawful conduct of a Party’s activities under this Agreement then such Party, at its expense, will procure and maintain such license or permit and comply with the terms thereof.
- Force Majeure. Neither Party will be responsible for any delay or failure in performance under this Agreement (except for the payment of monies) to the extent that such delay or failure is caused by circumstances beyond such Party’s reasonable control, including act of God, fire, flood, explosion, wide spread utility outage, war, internet communication disruptions, embargos, government requirement, civil, or military authority, national security incident, act or omission of carriers, or other similar circumstances (a “Force Majeure Event”). If a Force Majeure Event occurs then the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay as soon as possible and minimize the effects of such Force Majeure Event. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for 60 consecutive days or more.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever.
- Publicity. Neither Party may issue a press release or other similar publicity regarding this Agreement without the other Party’s prior written approval, which may not be unreasonably withheld. Notwithstanding the foregoing, each Party agrees that the other Party may use its name, URL, and logo on its website and in its customer and partner lists for marketing, corporate, and financial presentations.
- Interfaces. To the extent Customer requests HST to build an interface between Customer’s system and/or the Software (each, an “Interface”) and a third party vendor’s system (“Vendor”), in this Agreement or in addendum to this Agreement, Customer acknowledges and agrees that (i) the build is at Customer’s request, and (ii) completion of an Interface will permit Customer’s protected health information (“PHI”) to move between HST and the Vendor. Customer hereby expressly authorizes the movement of Customer’s PHI as described in (ii). Customer (x) represents and warrants to HST that (A) Customer and Vendor are parties to a business associate agreement that permits the flow of Customer’s PHI between HST and Vendor and (B) Customer will notify HST immediately if such business associate agreement is terminated, and (y) will indemnify HST for any Losses incurred by HST that arise out of the Interface or Customer’s failure to notify HST of the termination of its business associate agreement with Vendor.
- Exclusion. As of the Effective Date, HST is not named as an excluded entity or individual on the “List of Excluded Individuals/Entities” of the Department of Health and Human Services Office of the Inspector General.
- Access to Records. During the Term and for four (4) years following its expiration, upon request, HST will make available to the Secretary of the Department of Health and Human Services (the “Secretary”) and its authorized representatives this Agreement and all other books, documents, and records as are necessary to certify the nature and extent of the costs incurred by Customer in purchasing the Services. If HST provides Services through a subcontract worth $10,000 or more over a 12 month period, the subcontract will also contain a clause permitting access by the Secretary and its representatives to the books and records of the third party.
- Compliance with Laws. Each Party agrees to comply with all applicable laws in the performance of its obligations under this Agreement.