PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER’S BEHALF.
This subscription agreement (the “Agreement”) is between Remarkable Health, LLC, a Delaware limited liability company (“Remarkable Health”), and the customer agreeing to these terms (“Customer”), and covers all services provided by Remarkable Health to Customer.
SECTION 1. REMARKABLE HEALTH SERVICE
This Agreement provides Customer access and use of the Remarkable Health’s software subscription services and related Basic Support, as specified on the electronic or written order between the parties (“Order”). The terms of this Agreement are part of and fully incorporated by reference into the Order. Under this Agreement, Customer may subscribe to the Remarkable Health integrated behavioral health electronic health record and platform (the “Service”) and purchase related Professional Services. “Professional Services” are the professional services provided to Customer as set forth on an Order which may include, but are not limited to, strategic planning and consultation, project management, system design and set-up, technical analysis, training, technical and/or workflow analysis, data conversion, and customizations.
Customer understands that use of the Service is also governed by Remarkable Health’s Business Associate and Qualified Service Organization Agreement (“BAA”), as it may be modified over time.
SECTION 2. USE OF THE SERVICE
(a) Remarkable Health Responsibilities
(i) Support. Provided customer has timely paid all Service fees, Customer is entitled at no extra charge to access Remarkable Health’s then-current standard support resources made available by us for the Service, which includes without limitation, consultations, technical support, assistance and advice concerning support issues (“Basic Support“) during the term of this Agreement. Remarkable Health’s Basic Support is detailed at: https://www.remarkablehealth.com/support-policy/. A Customer will designate up to two of its employees as its principal support contact for support issues related to this Agreement. The support contact(s) will be responsible for reporting issues via Remarkable Health’s electronic portal. A Customer may change its support contact(s) and will notify Remarkable Health of the change. Each support contact must be adequately trained in the Service. Remarkable Health may provide Customer with upgraded support in accordance with the terms and fee set forth in an executed Order. For the avoidance of any doubt, Basic Support and any upgraded support is included within the definition of Services under this Agreement and is not Professional Services.
(ii) Service Changes. Remarkable Health reserves the right at any time, in its sole discretion, to make any changes, upgrades or updates to the Service and Documentation (as defined in Section 2 below) that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Remarkable Health’s services to its customers, (ii) the competitive strength of or market for Remarkable Health’s services;(iii) address cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, Customer may, at any time during the Term, request in writing customizations to the Service. The parties shall evaluate and, if agreed, implement all such requested customization as set forth in an Order. No requested customizations will be effective unless and until memorialized in a written Order signed by both parties.
(iii) Availability. Subject to the terms and conditions of this Agreement, Remarkable Health will act in good faith to make the Service available to Customer at least 99% of the time as measured over the course of each calendar month during the Term, exclusive of Scheduled Downtime during Maintenance Windows (“Maintenance Windows”). Maintenance Windows are used to regularly bring updates and upgrades to you and to perform maintenance on our infrastructure.
The Service will be deemed “available” to Customer if all material aspects of the system are operating as designed and in a non-degraded manner. Material aspects of the system include: (i) access to user login page from the internet at large and ability to successfully login with valid credentials; (ii) ability to access client configurations and perform licensed application operations in the Service; and (iii) ability to generate reports (excluding output faults resulting from client security or client desktop configurations).
(A) The following items or situations are exempt from Remarkable Health’s availability requirement set forth above: (i) unavailability of the application due to Scheduled Maintenance performed during a Maintenance Window; (ii) attacks (i.e. hacks, denial of service attacks) and other similar acts; (iii) unavailability that results from Customer’s equipment, software or other technology and/or third party equipment, software or other technology, including any third party hosting providers; or (iv) end user-side internet connectivity or ISP failures, and major disruptions to internet traffic or connectivity from force majeure factors, such as acts of God, actions of any government agency, acts of terrorism, or generalized disruptions or outages of communications.
(B) Other Definitions used in this Section 2(a)(iii).
(i) Scheduled Downtime: is time scheduled to perform Scheduled Maintenance during the Maintenance Window.
(ii) Scheduled Maintenance: Remarkable Health performs periodic scheduled upgrades and maintenance on the application, hardware and supporting software which will require making the Service unavailable for limited times (“Scheduled Maintenance”). Typical Scheduled Maintenance activities include: (a) performance monitoring of network and servers; (b) ensuring intrusion prevention services are updated with current threat signatures and operating properly; (c) applying patches and upgrades for system software components including operating systems, databases, web servers, and application servers; (d) applying patches and upgrades for system hardware components including software and/or firmware to firewalls, load balancers, switches, disk drives, and I/O controllers; (e) applying patches and upgrades to application software by migrating changes from the Remarkable Health staging environment to the production application and database servers; and (f) monitoring key system processes, backup processes security logs, network connectivity, space utilization, and application processes. Often these operations can be performed without a service outage. For tasks which require a service outage, Remarkable Health maintenance windows are general scheduled and performed during Friday evenings after 10 pm MST and during non-business hours MST. Should an unplanned service outage require a Maintenance Window for an urgent fix, we will notify a Customer’s support contacts in advance.
(b) Customer Responsibilities
(i) Access by Employees and Contractors. Customer may allow its authorized employees and contractors (the “Users”) to access the Service in compliance with the terms of this Agreement, applicable federal and state laws, and the applicable Order, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this Agreement by its employees and contractors and shall provide Users the training necessary to ensure Users’ compliance with the terms and conditions of this Agreement and applicable legal requirements. Customer shall confirm in the Order the number of named Users that will receive login identifications and passwords (“Logins”), Customer shall: (a) not swap or share Logins used to access the Service and associated with any User under any circumstance; (b) notify Remarkable Health immediately of any unauthorized use of any Logins used to access the Service or any other known or suspected breach of security; and (c) notify Remarkable Health promptly if Users licensed to use the Service set forth in an Order will be exceeded and promptly (A) execute any amendments or Orders necessary to memorialize such excess and (B) pay fees associated with such excess. Customer is responsible for terminating a User’s access to the Service immediately upon termination of employment or contract.
(ii) Use Rights; Restrictions; and Responsibilities. Subject to the terms of this Agreement, Remarkable Health grants to Customer during the term of this Agreement the non-transferable (except as permitted below), non-exclusive, non-sublicensable, and non-assignable (except as permitted below) right to permit Users to access and use the Service and any written materials and documentation that accompany the Service that Remarkable Health generally provides to Customers of the Service (the “Documentation”). Customer, its employees, contractors and Users may not: (i) sell, resell, rent or lease the Service, use the Service beyond its internal operations or reverse engineer the Service, (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights), (iii) interfere with or disrupt the integrity or performance of the Service, (iv) attempt to gain unauthorized access to the Service or its related systems or networks, (v) reverse engineer the Service or remove or modify any proprietary marking or restrictive legends in the Service, (vi) use the Service in violation of any law, including without limitation, HIPAA, 45 C.F.R. Part 2 (the “Part 2 Regulations”), Telephone Consumer Protection Act and any spam laws (for example, CAN SPAM), or (vii) access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes. Customer is solely responsible for Customer Information (defined below), must use commercially reasonable efforts to prevent unauthorized access to the Service, must notify Remarkable Health promptly of any such unauthorized access, and may use the Service only in accordance with its user guide and applicable law. Use of or access to Service not in accordance with this Agreement is strictly prohibited. Customer or a User’s permission to access or use the Service may be limited or suspended immediately in Remarkable Health’s discretion if this Section 2(b) is violated.
(iii) Customer Information. All data, information, images and files entered or uploaded by Customer to the Service remains the sole property of Customer, as between Remarkable Health and Customer (“Customer Information”), subject to the other terms of this agreement. Customer grants Remarkable Health a non-exclusive, royalty-free license to modify, store, transmit and otherwise use the Customer Information for purposes of Remarkable Health performing under this agreement. Notwithstanding the foregoing, if Customer’s access to the Services is suspended for non-payment of fees in accordance with Section 3(d), except to the extent otherwise required by applicable law, Remarkable Health will have no obligation to provide Customer Information to Customer until Customer remedies such non-payment as provided in this Agreement.
(iv) Aggregation Services, Limited Data Sets and De-identified Data. Remarkable Health may use protected health information (including that within your Customer Information) to provide you with data aggregation services (as that term is defined by HIPAA), to create Limited Data Sets (as that term is defined by HIPAA) and/or to de-identify information in accordance with 45 CFR 164.514(a)-(c). Customer grants a non-exclusive, perpetual, worldwide right to incorporate its PHI (as defined in the BAA) into aggregated data or data sets maintained by Remarkable Health and agrees that Remarkable Health retains any and all ownership claims related to its data sets and the de-identified data it creates from PHI (as defined in the BAA). Remarkable Health may use, during and after this agreement, all aggregated information and de-identified data for purposes of enhancing the Service, technical support and other business purposes, all in compliance with the HIPAA privacy standards and the Part 2 Regulations. Remarkable Health may create Limited Data Sets using Customer’s PHI and further use and disclose those Limited Data Sets in accordance with the BAA.
(v) Rights, Permissions and Consents. Customer is solely responsible for determining and ensuring that its provision or uploading of patient information into the Service complies with applicable federal, state and local laws. Customer shall obtain, and will maintain accurate records of, all necessary rights, contracts, permissions and consents from each individual and entity that Customer contacts, uploads Customer Information related to, or in any other manner uses the Service with, as required by all applicable laws and regulations, including without limitation HIPAA and 45 CFR 164.508 and any successor regulation thereto and the Part 2 Regulations. Customer will immediately stop contacting and remove information related to any individual or entity that no longer wishes to receive contact from Customer or otherwise withdraws necessary rights, permissions or consents required to maintain such information. Notwithstanding the foregoing, Remarkable Health reserves the right to remove immediately from Customer’s contact database or otherwise block Customer from communicating through the Service with any individual or entity identified to Remarkable Health by network providers or the authorities as filing a spam report or complaint against Customer or that contacts Remarkable Health directly to request removal from Customer’s contact database. Remarkable Health reserves the right to immediately terminate this Agreement if Customer fails to comply with this Section and further disclaims any liability and consequence that may arise or result from such failure.
(vi) Use of Service, Data Integrity. Customer understands and agrees that the Service is a tool that may be used to assist health care providers in the practice of medicine, but it is not a substitute for competent human intervention or discretionary thinking. Customer and its Users agree to use the Service only in accordance with applicable standards of good medical practice. Customer further agrees that it is solely responsible for decisions made in configuring the Services and for the medical decision-making and judgments of its Users related to the treatment of Customer’s patients and that Remarkable Health has no responsibility or liability therefor. Further, Customer agrees that it is solely responsible for the accuracy, completeness and integrity of all information that it and its Users provide to the Service and for ensuring that it and the Users use the Services accurately.
(vii) Electronic Prescriptions and Orders. If Customer uses the Service for electronic ordering or prescribing, the Customer and each User agrees: (a) to only make orders or prescribe on their own behalf and not give away password or credentials to another person to input orders or prescribe for them; (b) to take the same degree of responsibility and care they would use when transmuting paper or phone orders and prescriptions.; and (c) to ensure that each order or prescription is made in compliance with applicable federal and state law.
(viii) Prompt Reporting. Customer and its Authorized Users agree to report any errors or suspected errors to Remarkable Health in the course of using the Service. Customer will report immediately to Remarkable Health any discovered or reported problems with the Service which have been discovered or reported by any User or which Customer or any User independently knows or should know may adversely affect patient care. If Customer or any of its Users are alerted to a problem that its Users know or should know could adversely affect patient care, Customer shall immediately notify any Users who could reasonably be affected. Failure to report to Remarkable Health any problem in accordance with this Section shall automatically relieve Remarkable Health of any obligation to indemnify Customer otherwise provided under this Agreement for any claim of any nature whatsoever related to the problem.
SECTION 3. PAYMENT TERMS
(a) Fees; Payment. Customer must pay all fees as specified on the Order, on an invoice and on any other related services as such fees are incurred. Unless otherwise stated in the Order or invoice, invoiced charges are due upon receipt. Customer is responsible for providing complete and accurate billing and contact information to Remarkable Health and notifying Remarkable Health of any changes to such information. Remarkable Health reserves the right to increase the fees after the first twelve consecutive months of the Term, provided that there shall be no more than one per each subsequent consecutive twelve month period and that Remarkable Health provides Customer with at least 30 days notice.
(b) Credit Card and ACH. Customer must pay the monthly subscription service fee (US$) with a credit card or via ACH. If the credit card or ACH is not valid or the payment is not otherwise made, Customer must pay the amount owed upon receipt of an invoice. Customer hereby authorizes Remarkable Health to charge such credit card or withdraw from Customer’s bank account via ACH for the monthly subscription service fee, and any renewals. Remarkable Health shall charge the Customer’s bank debit or credit card the monthly subscription service on or around the first business day of each month during the Term of this Agreement. Customer may be assessed additional fees and costs if the Customer’s bank debit or credit card is declined for any reason. As set forth in an Order, Remarkable Health shall invoice the Customer for the start-up/implementation Professional Services fees at the time the Customer executes the Order.
(c) Taxes. Remarkable Health’s fees do not include any taxes, levies or other similar governmental assessments (“Taxes”). Customer is responsible for the payment of all Taxes associated with its purchases under this agreement. Remarkable Health is solely responsible for taxes assessable against Remarkable Health based on its income, property and employees.
(d) Suspension of Service for Non Payment. Remarkable Health may suspend or terminate the Service (entirely or in part, such as suspending Basic Support), if Customer has not paid amounts owed to Remarkable Health following 10 business days of non-payment. Services may be re-activated by Customer within 60 calendar days of termination with a payment of all due funds. Customer will pay Remarkable Health all costs and expenses, including reasonable attorney’s fees, incurred by Remarkable Health in enforcing any of the terms, conditions and provisions in this Agreement, including any of Remarkable Health’s rights and remedies set forth in this Agreement. Customer is responsible for updating its contact information with Remarkable Health and notifying Remarkable Health of any changes to such information.
SECTION 4. TERM, TERMINATION, AND RETURN OF DATA
(a) Term. The applicable Services will continue for the duration specified in the Order, and will be automatically renew for successive 1 year periods on each anniversary of the Order unless either party provides notice of termination in writing of no less than 60 days before the end of the then current period (the then-current duration, the “Term”). This Agreement continues until all Orders and the Service are terminated.
(b) Termination for Breach. Either party may terminate this Agreement and the applicable Orders if the other party breaches any material term of this Agreement or an Order and does not cure the breach within 30 days of written receipt of notice of breach; provided, if such breach is of a nature that it cannot, using commercially reasonable efforts, be completely cured within said 30 days period, this Agreement may not be terminated for breach if such party has commenced steps to cure within such 30 days period and thereafter uses commercially reasonable efforts to pursue such cure to completion.
(c) Early Termination by Customer. In the event Customer terminates this Agreement prior to the end of the current term and termination is not made pursuant to Section 4(b) above (“Exempt Termination”), the parties agree that the actual damages likely to result from termination are difficult to estimate and difficult for Remarkable Health to prove. The parties agree that in the event of early termination by Customer except pursuant to an Exempt Termination, Customer agrees to pay Remarkable Health an “Early Termination fee” equal to the higher of (I) 1.5 times the total of the monthly subscription service fee to be paid by Customer for the remaining months left in the current term or (II) the average monthly subscription service fee paid during the preceding six months times the remaining months left in the current term. The Parties intend that the Early Termination fee serve as liquidated damages to compensate Remarkable Health for Customer’s early termination, and the parties do not intend for it to serve as punishment for any such breach by Customer.
(d) Return of Data
(i) Remarkable Health will have no obligation to provide Customer Information to Customer upon termination of this Agreement. Remarkable Health recommends that that the Customer initiate or perform their data export prior to the actual termination date. The Customer data will only be provided in Microsoft Excel (.XLS) or Comma Separated Values (.CSV) file format and only includes patient records (including patient demographics and insurance coverage information) and claim records (including encounter and claim information),
(ii) Notwithstanding Section 4(d)(i) , Remarkable Health shall continue to retain the Customer’s data for an additional minimum 60 days after termination of this Agreement (“Data Retention Period”) as a safeguard in the event that Customer requires additional data. To request data from Remarkable Health during the Data Retention Period, Customer should contact the Remarkable Health Customer Success team for assistance. If Customer requires support for downloading any data after this Agreement has terminated, Remarkable Health may charge Customer at the then current hourly professional services rate for such support.
(iii) End of Data Retention Period. After the Data Retention Period is completed, Remarkable Health will return or dispose of customer data containing PHI as set forth in the BAA. Customer will solely be responsible for complying with all state and federal records retention requirements. This Section does not apply to any data maintained by Remarkable Health in an aggregated data set, has been de-identified, or resides in a Limited Data Set (as defined under HIPAA) in accordance with Section 2(b)(iv) and the BAA,
(iv) Abandoned Accounts. An abandoned account means a Customer has discontinued the Service (but has failed to formally terminate its account) by a combination of: (A) non-payment of the current or previous month fees and (B) 30 consecutive days of no Customer logins to the Service. At the 31st day, Remarkable Health will deem the account “Abandoned” and the account shall be terminated. Remarkable Health will also deem an account “Abandoned” and terminated if Customer fails to confirm their account via e-mail within 30 days of sign-up. After the account is deemed terminated, the data is held for the Data Retention Period. Remarkable Health will then properly dispose of customer data containing PHI as set forth in the BAA or as required by law. Customer will solely be responsible for complying with all state and federal records retention requirements.
(e) Customer Actions upon Termination. Upon termination, Customer must return or destroy all Remarkable Health property in Customer’s possession. Customer, upon Remarkable Health’s request, will confirm in writing that it has complied with this requirement.
(g) Suspension or Termination of Service for Violation of Law or the Agreement. Remarkable Health may immediately suspend or terminate the Service and remove applicable Customer Information or content if it in good faith believes that, as part of using the Service, Customer may have violated a law or any term of this Agreement. Remarkable Health may try to contact Customer in advance, but it is not required to do so.
SECTION 5. WARRANTIES
(a) Remarkable Health Warranties.
(i) Remarkable Health warrants for a period of 30 days following their delivery that all Professional Services provided hereunder will be performed in a workmanlike manner, in conformity with the applicable specifications, if any, provided by Remarkable Health. Upon delivery of Professional Services, Customer shall have an acceptance period of thirty (30) calendar days during which Customer will have the opportunity to verify that the Professional Services comply in all material respects all material respects with the applicable specifications. If the 30 days expires on a weekend or legal holiday, Customer shall have until the next business day (the “Acceptance Deadline”). If Customer concludes that the Professional Services are unacceptable, it shall notify Remarkable Health in writing by the Acceptance Deadline, including in such written notification a reasonably detailed explanation of the basis for the rejection of the Professional Services. If Customer does not provide such written notice by the Acceptance Deadline, Customer shall be deemed to have accepted the Professional Services. For any breach of this warranty timely reported by Customer, Customer’s sole and exclusive remedy shall be the re-performance of the deficient Professional Services, and if Customer is unable to re-perform the deficient Professional Services as warranted, Customer shall be entitled to recover the portion of the fees paid to Remarkable Health for such deficient Professional Services, and such refund shall be Remarkable Health’s entire liability.
(ii) No Exclusion. Remarkable Health represents and warrants that it is not excluded from participating in any federal health care program, is not on the sanctions list issued by the Office of the Inspector General of the Department of Health and Human Services pursuant to the provision of 42 U.S.C. § 1320a(7), has not been excluded from government contracts by the General Services Administration, and has not been convicted of a felony or any crime relating to health care.
(b) Customer’s Compliance with Medical Records Laws Warranty. Customer is responsible for understanding and complying with all state and federal laws related to retention of medical records, the use, access and disclosure of health information, patient access to information and patient authorization to access, use or disclose data. Customer represents and warrants that: (i) no contractual obligations exist that would prevent Customer from entering into this Agreement; (ii) it has the requisite authority to execute, deliver, and perform its obligations under this Agreement; and (iii) it will comply with all statutory and regulatory requirements and applicable agency guidelines, this Agreement’s terms and conditions, and Remarkable Health policies and procedures applicable to its and its Users’ use of the Service and its operations as a healthcare provider. Customer warrants that it will obtain any necessary patient consent prior to using the Service (including without limitation the Patient Portal) and will apply settings to exclude information from availability in the Patient Portal as necessary to comply with state or federal law.
(c) Disclaimer. REMARKABLE HEALTH DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND PROFESSIONAL SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
(d) Hardware and Third Party Content. Remarkable Health may offer Customer certain third-party signature pad hardware (the “Hardware”) to enable Customer’s patients to acknowledge Customer’s policies. The Hardware may not be modified, obscured, branded, decorated, or altered in any way. The Service may now or in the future be bundled with third party content that Remarkable Health may make available for Customer access, reference or use in connection with the Service (“Third Party Content”). Remarkable Health does not warrant in any manner and will not be responsible for such Hard ware and Third Party Content and Customer agrees to look solely to the relevant third party provider (and not Remarkable Health) if and to the extent that Customer has any complaints or issues relating to the Hardware or Third Party Content or its interaction with the Service. THE HARDWARE AND THIRD PARTY CONTENT IS PROVIDED TO CUSTOMER “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED, AND REMARKABLE HEALTH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 6. LIMITS ON LIABILITY.
(a) REMARKABLE HEALTH IS NOT LIABLE TO CUSTOMER, ANY USER OR THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA OR INFORMATION, LOST PROFITS OR REVENUES OR LOSS OF ANTICIPATED COST SAVINGS), FINES OR PENALTIES ARISING UNDER OR RELATED TO THE SERVICE, THIS AGREEMENT AND THE BAA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER THEORY OF LEGAL LIABILITY. CUSTOMER SHALL ENSURE THAT USERS OF THE SERVICE, INCLUDING USER’S OF THE PATIENT PORTAL, ACKOWLEDGE THIS LIMITATION ON LIABILITY.
(b) REMARKABLE HEALTH’S TOTAL LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATED TO THE SERVICE, THIS AGREEMENT AND THE BAA (IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE 6-MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
SECTION 7. INDEMNITY
To the extent allowed by applicable law, Customer must indemnify, defend, and hold harmless Remarkable Health against all third-party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:
- the operation of the Service or its use by Customer or any User,
- Customer’s or a User’s breach of any term in this Agreement,
- any unauthorized use, access or distribution of the Service by Customer, a User or a patient of Customer,
- medical decision-making by Customer, its employees, agents or subcontractors, or a User of the Service, or
- violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.
SECTION 8. MUTUAL CONFIDENTIALITY
(a) Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Remarkable Health’s Confidential Information includes without limitation the non-public portions of the Service.
(b) Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors and clients (as the case may be) who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement. The Recipient may disclose Confidential Information (i) to the extent required by law or legal process; (ii) to its legal or financial advisors, provided that such advisors are bound by a duty of confidentiality that includes use and disclosure restrictions; and (iii) as required under applicable securities regulations. In addition, each party may disclose the terms and conditions of this Agreement on a confidential basis to current and prospective investors, acquirers and lenders and their respective legal and financial advisors in connection with due diligence activities.
(c) Exclusions. Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Discloser; was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; is received from a third party without breach of any obligation owed to Discloser; or was independently developed by the Recipient without use or access to the Confidential Information. “Confidential Information” also excludes Protected Health Information or substance use disorder patient record information governed by the Part 2 Regulations, the access to, use of and disclosure of is governed by the BAA.
SECTION 9. PROPRIETARY RIGHTS
(a) Reservation of Rights by Remarkable Health. Remarkable Health and its licensors shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks, workflow processes, user interface, designs, know-how and other intellectual property rights) in and to the Service, Professional Services and Documentation (including methodologies and business processes used by Remarkable Health to develop or provide the Service, Professional Services or Documentation), and any and all updates, enhancements, modifications, customizations and future releases and any other changes relating to the foregoing. Except for the limited, express rights to access and use the Services granted pursuant to this Agreement, Customer does not acquire any interest in the Service, Professional Services or Documentation. Customer agrees that if Customer provides Remarkable Health with any suggestions, enhancement requests or other feedback relating to the Service, Professional Services or the Documentation, Remarkable Health may use such suggestions and feedback without restriction or obligation to Customer.
(b) APA Content
(i) The APA Content is licensed to Customer as follows: Remarkable Health grants Customer a non-transferable, non-exclusive, license for the duration of the Service to use such materials for Customer’s internal use solely with the Service, with the right to make additional copies of the APA Content as required by use of the Service, specifically, by executing the Service of making one back-up copy for archival purposes. “APA Content” means the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, V.A., American Psychiatric Association (“APA”) (2013), (“DSM-5”); DSM-5 Classification (Codes and Disorder Names Only, pp. xiii-xl) and Diagnostic Criteria, English Language Only. The copyright in DSM-5 is owned by APA and all notices of proprietary rights, including trademark and copyright notices must appear on all back-up or archival copies made by the Customer.
(ii) APA Restrictions:
(A) Customer may not use outside the United States, create derivative works based on the DSM-5, or sell, lease, or license it or otherwise make it available to a non-authorized party. This sublicense is limited to one user for each User associated with Customer’s account. Customer is responsible for seeking additional user licenses directly from the APA if it requires more than one user license per User. APA and Remarkable Health disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in the DSM-5.
(B) APA AND REMARKABLE HEALTH EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES (INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN RELATION TO CUSTOMER’S USE OF THE APA CONTENT IN THE SERVICE. APA WILL NOT BE LIABLE TO REMARKABLE HEALTH, CUSTOMER, OR ANY THIRD PARTY FOR LOSS OF PROFITS, LOSS OF USE OR FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, EVEN IF IT IS AWARE OF THE POSSIBILITY THEREOF. REMARKABLE HEALTH AGREES THAT THE ENTIRE LIABILITY OF APA WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE FEE PAID FOR THE LICENSE OF THE APA CONTENT.
(C) DSM-5 is not a substitute for, is not designed to, and does not provide, medical advice. It is a guide for clinicians. Every clinician should use his or her own medical judgment and skill in diagnosing mental illness. APA shall not be liable to Remarkable Health, Customer or any third party if readers of DSM-5 disregard professional medical advice, or delay in seeking such advice, because of something they have read in the DSM-5. APA shall not be liable to Remarkable Health, Customer or any third party if readers rely solely on information in DSM-5 in making diagnosis, or in place of seeking professional medical advice. RELIANCE ON ANY INFORMATION CONTAINED IN DSM-5 IS SOLELY AT THE READER’S OR USER’S OWN RISK. Moreover, APA is not responsible or liable to Remarkable Health, Customer or any third party for any advice, course of treatment or diagnosis provided by a physician or other health care professional. APA neither recommends nor endorses any specific tests, products, procedures, opinions or other information that may be recommended to a reader or user by a health care professional.
SECTION 10. ACCESS TO RECORDS; DISCLOSURE OF RECORDS
The parties to this Agreement, until the expiration of four years subsequent to the furnishing of Services under this Agreement, shall make available upon written request of the Secretary of the Department of Health and Human Services, the U.S. Comptroller General, or the Secretary’s or Comptroller’s delegate, or any of their duly authorized representatives this Agreement, the books, documents, and records of the parties that are necessary to certify the nature and extent of the costs of the services provided under this Agreement. In the event that either party, or its successor or assigns, is requested to provide or disclose any books, documents or records relevant to this Agreement for the purpose of an audit or investigation, the party subject to the request shall notify in writing, to the extent permitted by law, the other party of the nature and scope of such request and shall make available, to the extent permitted by law, to the other party, upon request, all such books, documents or records. The provisions of this paragraph shall survive the termination of this Agreement.
If Customer provides health care services to Medicare Advantage Program enrollees, Remarkable Health agrees that the Secretary of the Department of Health and Human Services, the U.S. Comptroller General, or their designees have the right to audit, evaluate, collect, and inspect any books, contracts, computer or other electronic systems related to the Medicare Advantage contract between the Centers for Medicare and Medicaid Services and the Medicare Advantage organization. Such right to inspect, evaluate and audit any pertinent information for any particular contract period will exist through 10 years from the final date of the contract period or from the date of completion of any audit, whichever is later. The provision of this paragraph shall survive the termination of this Agreement.
SECTION 11. GOVERNING LAW AND JURISDICTION
This Agreement, and the rights and obligations hereunder, shall be governed by, and construed in accordance with, the laws of the State of Arizona without giving effect to conflict of laws principles. Legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction located in Maricopa County, Arizona, and both parties hereby expressly and irrevocably consent to be bound by the personal jurisdiction and venue of such courts. Notwithstanding anything above, Remarkable Health: (i) may seek and obtain injunctive and equitable relief in any court of competent jurisdiction without restriction or required process in this Agreement and (ii) may bring an action for the collection of unpaid fees in any court of competent jurisdiction.
SECTION 12. OTHER TERMS
(a) No Solicit or Hire Clause. Customer acknowledges that Remarkable Health invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under this agreement. Customer agrees that for the full term of this agreement, and for 2 years after its termination, Customer will not solicit or employ in any capacity, whether as a direct employee, independent contractor or as a representative of another company providing similar services to Customer as Remarkable Health, any person employed by Remarkable Health at any time during the term of this Agreement whose duties involved supporting the Service, whether for Customer or other Remarkable Health customers.
(b) Consent to Electronic Notice, Communications and Transactions. For purposes of messages and notices about the Service (including without limitation, collections and payments issues), Remarkable Health may send email notices to the email address associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), Remarkable Health may send notices to the postal address provided by Customer. Remarkable Health has no liability associated with Customer’s failure to maintain accurate contact information within the Service or its failure to review any emails or in service notices. Customer will have the ability to enter into agreements, authorizations, consents and applications; make referrals; order lab tests; prescribe medications; or engage in others transactions electronically. CUSTOMER AGREES THAT ITS ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE ITS AGREEMENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS, AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. Customer represents and warrants that it has the authority to take such actions.
(c) Entire Agreement and Changes. This Agreement and the Order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification or waiver of any term of this Agreement is effective unless signed by both parties. Notwithstanding the foregoing, Remarkable Health may modify this Agreement by posting the modified agreement on the Remarkable Health website and electronically notifying Customer of the changes 30 days prior to the effective date of such changes. Customer agrees that by continuing to use the Service after posting of the modified agreement, Customer agrees to be bound by the changes.
(d) Assignment. Customer may not assign this Agreement without providing prior notice to and obtaining the consent of Remarkable Health; provided, the following shall be deemed an assignment for purposes of this Section: (a) any change in control or ownership of Customer and/or (b) Customer undergoes a merger, reorganization, transfer, sale of all or some assets or product lines, or any other assignment that occurs by operation of law. Any purported assignment in violation of this Section shall be void. Remarkable Health may assign this Agreement to a party controlling, controlled by or in common control with Remarkable Health, or as part of the sale of all or substantially all of the assets of Remarkable Health (whether such sale occurs by sale of equity, merger, sale of assets or otherwise), without Customer’s consent.
(e) Independent Contractors and Enforceability. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
(f) No Additional Terms. Remarkable Health rejects additional or conflicting terms of a form-purchasing document. If there is an inconsistency between this Agreement and an Order, this Agreement prevails unless the Order expressly identifies the specific Section(s) of this Agreement that are to be superseded.
(g) Survival of Terms. All terms survive termination of this agreement that by their nature survive for a party to assert its rights and receive the protections of this agreement. The Convention on Contracts for the International Sale of Goods does not apply.
(h) Customer Name. Remarkable Health may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Remarkable Health, which use must be in accordance with Customer’s trademark guidelines and policies, if any, provided to Remarkable Health.
Last Updated: February 17th, 2017
