Nuvodia Share Terms and Conditions
Effective Date: September, 25, 2019
These Terms and Conditions (the “Terms and Conditions”) form a part of the Master Service Agreement and related Nuvodia Share Attachment between Nuvodia, LLC (“Vendor”) and the customer who is purchasing the Nuvodia Share Image Exchange license from Nuvodia (“Customer”). These Terms and Conditions supplement, rather than replace, all other terms and conditions set forth in the Attachment and the Master Service Agreement. For the purposes of these Terms and Conditions, the “Agreement” consists of the combined provisions of these Terms and Conditions, the Master Service Agreement, and the Attachment.
1.1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
1.3. “Authorized Users” means Customer’s employees, consultants, contractors, and agents
(a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement; and
(b) for whom access to the Services has been purchased hereunder.
1.4. “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 or an Authorized User by or through the Service. 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 or any Authorized User.
1.5. “Customer Systems” means the 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.
1.6. “Documentation” means any manuals that the Vendor provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Service.
1.7. “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to
(a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any
- computer, software, firmware, hardware, system, or network; or
- any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or
(b) prevent Customer or any Authorized User from accessing or using the Services or Vendor Systems as intended by the Agreement. Harmful Code does not include any Vendor Disabling Device.
1.8. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.9. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.10. “Patient Data” has the same meaning as the term “protected health information” in 45 C.F.R. § 160.103.
1.11. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.12. “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content.
1.13. “Services” means the products set forth in Section 2 of the Attachment.
1.14. “Vendor Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Vendor or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Vendor or its designee.
1.15. “Vendor Materials” means the Services, Specifications, Documentation, and Vendor Systems 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, that are provided or used by Vendor or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Vendor Systems. For the avoidance of doubt, Vendor Materials include Resultant Data and any information, data, or other content derived from Vendor’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
1.16. “Vendor Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Vendor or any Subcontractor.
1.17. “Vendor Systems” means the information technology infrastructure used by or on behalf of Vendor in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Vendor or through the use of third-party services.
1.18. “Resultant Data” means data and information related to Customer’s use of the Services that is used by Vendor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.19. “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 Vendor.
2. Suspension or Termination of Services
Vendor may, directly or indirectly, and by use of a Vendor Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Vendor Materials, without incurring any resulting obligation or liability, if:
(a) Vendor receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Vendor to do so; or
(b) Vendor believes, in its sole discretion, that:
- Customer or any Authorized User has failed to comply with any term of the Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under the Agreement or in any manner that does not comply with any instruction or requirement of Vendor;
- Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or
- the Agreement or Attachment expires or is terminated. This Section does not limit any of Vendor’s other rights or remedies, whether at law, in equity, or under the Agreement.
3. Modifications to Services
Vendor reserves the right, in its sole discretion, to make any changes to the Services and Vendor Materials that it deems necessary or useful to:
(a) maintain or enhance:
- the quality or delivery of Vendor’s services to its customers;
- the competitive strength of or market for Vendor’s services; or
- the Services’ cost efficiency or performance; or
(b) to comply with applicable Law.
4. Use Restrictions; Service Usage and Data Storage
4.1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Vendor Materials except as expressly permitted by the 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 shall not, except as the Agreement expressly permits:
4.1.1. copy, modify, or create derivative works or improvements of the Services or Vendor Materials;
4.1.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Vendor Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
4.1.3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Vendor Materials, in whole or in part;
4.1.4. input, upload, transmit, or otherwise provide to or through the Services or Vendor Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
4.1.5. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Vendor Systems, or Vendor’s provision of services to any third party, in whole or in part;
4.1.6. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Vendor Materials, including any copy thereof;
4.1.7. access or use the Services or Vendor Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law; and
4.1.8. access or use the Services or Vendor Materials for purposes of competitive analysis of the Services or Vendor Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Vendor’s detriment or commercial disadvantage.
5. Customer Obligations
5.1. Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain, and operate in good repair and in accordance with Vendor’s instructions all Customer Systems on or through which the Services are accessed or used;
(b) provide Vendor Personnel with such access to Customer’s premises and Customer Systems as is necessary for Vendor to perform the Services in accordance with the Agreement, and
(c) provide all cooperation and assistance as Vendor may reasonably request to enable Vendor to exercise its rights and perform its obligations under and in connection with the Agreement.
5.2. Effect of Customer Failure or Delay. Vendor 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 the Agreement (each, a “Customer Failure”).
5.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by the Agreement, Customer shall, and shall cause its Authorized Users to, immediately:
(a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Vendor Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and
(b) notify Vendor of any such actual or threatened activity.
6.1. Customer Control and Responsibility. Customer has and will retain sole responsibility for:
(a) all Customer Data, including its content and use;
(b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
(c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”);
(d) the security and use of Customer’s and its Authorized Users’ Access Credentials;
(f) all access to and use of the Services and Vendor Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
6.2. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
(a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and
(b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
7. Service and System Control
Except as otherwise expressly provided in the Agreement, as between the parties:
7.1. Vendor has and will retain sole control over the operation, provision, maintenance, and management of the Vendor Materials; and
7.2. 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 sole responsibility for all access to and use of the Vendor Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any:
(i) information, instructions, or materials provided by any of them to the Services or Vendor;
(ii) results obtained from any use of the Services or Vendor Materials; and
(iii) conclusions, decisions, or actions based on such use.
8. Customer Representations and Warranties
Customer represents, warrants, and covenants to Vendor that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Vendor and Processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.
9. DISCLAIMER OF WARRANTIES
9.1. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, ALL SERVICES AND VENDOR MATERIALS ARE PROVIDED “AS IS.” VENDOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VENDOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR VENDOR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 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.
9.2. THE SERVICES ARE INTENDED FOR REFERENCE AND DECISION SUPPORT PURPOSES ONLY AND DO NOT REPRESENT VENDOR’S RECOMMENDATIONS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN ANY ENVIRONMENT IN WHICH THE UNAVAILABILITY OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND THE PATIENT DATA ARE NOT INTENDED TO BE STATEMENTS OF FACT OR TRUTH. EXCEPT TO THE EXTENT THAT VENDOR CAUSES DATA CORRUPTION, VENDOR ASSUMES NO RESPONSIBILITY FOR THE ACCURACY, UP-TO-DATE STATUS, OR COMPLETENESS OF THE PATIENT DATA, NOR THE DATA’S COMPLIANCE WITH LEGAL REQUIREMENTS OR STANDARD.
9.3. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PATIENT DATA ARE NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT, OR CARE OF PERSONS BY VENDOR. THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT AND SHOULD NOT BE USED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE WITHOUT THE SUPERVISION OF A DOCTOR OR QUALIFIED HEALTHCARE PROVIDER.
9.4. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT VENDOR AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT:
(A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR
(B) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEB SITES, COMPUTERS, OR NETWORKS.
10. Limitations of Liability
IN NO EVENT WILL VENDOR OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:
(a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE;
(b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES;
(c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY;
(d) COST OF REPLACEMENT GOODS OR SERVICES;
(e) LOSS OF GOODWILL OR REPUTATION; OR
(f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. Compliance with Law
Customer hereby represents that it shall at all times ensure that its use, disclosure and transmission of, and access to, Patient Data via the Services are permitted by and consistent with Law, including but not limited to the Health Insurance Portability and Accountability Act. Customer acknowledges and understands that the Services enable Customer and its Authorized Users to access and share information, including Patient Data, electronically with third parties, to the extent permitted by Law. Accordingly, Customer is solely responsible for ensuring that its disclosure and transmission of Patient Data to the Services
(a) is permissible under any applicable notice of privacy practices;
(b) is not required to be authorized or consented to by any third party, including any individual to whom it pertains, or if authorization, consent or permission of any person is required, that it has been obtained;
(c) is not subject to an agreed or required restriction, to the extent known by Customer, which would prohibit the disclosure; and
(d) is limited to individuals with whom Customer or Customer’s contracted providers have a direct or indirect relationship for treatment, payment or health care operations purposes, or for whom Customer is permitted by applicable law to access Patient Data for public or population health purposes. Vendor is not responsible for the disclosure, transmission or receipt by Customer or any Authorized User of any Patient Data that is contrary to or prohibited by Law, or for determining or ensuring that any requirement for notice, authorization, consent, or permission which is required as a condition to the disclosure, transmission or receipt of Patient Data to Vendor, an Authorized User, or to a third party has been met.
12. Entire Agreement
The Agreement constitutes the entire agreement of Customer and Vendor for the Nuvodia Share Image Exchange license. No prior inconsistent or additional terms, provisions, proposals, or discussions (including any that are on Customer’s forms) are a part of the Agreement. In the event of a conflict between these Terms and Conditions and
(a) the Master Service Agreement, or
(b) the Attachment, these Terms and Conditions shall control.
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