iClickCare Terms and Conditions
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BY LOGGING IN, YOU AGREE TO THE AGREEMENTS CONTAINED HEREIN: - General Principles, rules and software licensing Agreement - Business Associate Agreement - Subscriber Terms and Conditions
ClickCare®, and its newest software, iClickCare®, welcome you as one of many conscientious and well meaning providers who want to do the best for their patient. As such, you are able to invite other collaborators and institutions without ClickCare's awareness, credentialing, vetting, or control. Thus, as you attest to the following, you also attest that, indeed, you are who you say you are and that, indeed, you do what you say you do. Any collaboration, recommendations, or outcomes are interpreted by you with your full knowledge and awareness of strengths, limitations and credentials of those individuals with whom you collaborate.
There are some important points to understand before logging in and using the application.
The purpose of the application is to allow better access by patients to medical care that requires collaboration among providers, whether or not they are specialists or generalists. At any one time, you may be considered the requesting provider (originator), or the consulting provider. As the requesting provider, you are responsible for the care you provide your patient, and any consultation that you receive needs to be weighed and interpreted by you for the benefit of our patient.
This software is used to transmit healthcare data. Medical interpretation is the responsibility of the healthcare users and not that of ClickCare, LLC. Mechanized alert notifications are included in your subscription. They should be used in a clinically appropriate manner. When an urgent or emergent response is needed, you must use any other means that is appropriate to notify your colleagues.
You agree to abide by the policies and procedures of ClickCare, LLC with regard to telemedicine and the privacy of patient records as detailed in the Business Associate Agreement (BAA). Any breach of the terms of this license shall permit ClickCare, LLC. to suspend or revoke your access to the application. The parameters of that suspension or revocation shall be determined by ClickCare, LLC in its sole discretion.
You agree to collaborate in a constructive manner and not engage in behavior that hinders the delivery of care.
You agree to provide feedback about how the system may be improved.
You agree not to change data later except for minor editing corrections. You understand that all entries and changes are logged and available for review by supervisory personnel.
This application is not an electronic health record, but rather a means of communicating with other professionals.
You agree that any use of the archive for teaching purposes must be conducted in accordance with law and with full respect for the confidentiality of the data, and that any access or use of identifiable patient health information may only occur with the express, time limited, and written permission of the patient, that will be obtained and preserved by you, the user.
Because the application is based on intellectual property licensed from a third party, you agree to each of the terms of that license, which are set forth below.
We look forward to an exciting new phase in patient care.
Servoy Binary Code License
This binary code license ("License") contains rights and restrictions associated with use of the accompanying Servoy software, datamodel and documentation ("Software"). Read the License carefully before using the Software. By using the Software you agree to the terms and conditions of this License.
1. License to Use. Licensee is granted a right to use this Software and agrees to indemnify, hold harmless, and defend Servoy and its licensors from and against any claims or lawsuits, including attorneys' fees, that arise or result from the use or distribution of the Program.
2. Restrictions. Software is confidential copyrighted information of Servoy and title to all copies and all associated intellectual property rights is retained by Servoy and/or its licensors.
Licensee shall not decompile, disassemble, decrypt, extract, or otherwise reverse engineer Software. Software may not be leased, assigned, or sublicensed, in whole or in part. Software is not designed or intended for use in online control of aircraft, air traffic, aircraft navigation or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. Licensee warrants that it will not use or redistribute the Software for such purposes.
3. Trademarks and Logos. This License does not authorize Licensee to use any Servoy name, trademark or logo.
4. Disclaimer of Warranty. Software is provided "AS IS, "without a warranty of any kind. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INV ALID.
5. Limitation of Liability. Servoy AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING OR DISTRIBUTING SOFTWARE. IN NO EVENT WILL Servoy OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF Servoy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Servoy's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Software under this Agreement. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose.
6. Termination. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Software. This Agreement will terminate immediately without notice from Servoy if you fail to comply with any provision of this Agreement. Upon Termination, you must destroy all copies of Software.
7. Governing Law. Any action related to this License will be governed by the Dutch law . No choice of law rules of any other jurisdiction will apply.
8. Severability. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived or amended to the extent necessary for the License to be otherwise enforceable in such jurisdiction. However, if in Servoy's opinion deletion or amendment of any provisions of the License by operation of this paragraph unreasonably compromises the rights or increase the liabilities of Servoy or its licensors, Servoy reserves the right to terminate the License.
9. Integration. This Agreement is the entire agreement between you and Servoy relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
Addendum: Sybase iAnywhere Sublicense Agreement
The agreement below only applies if you use the iAnywhere database server that ships with Servoy products.
NOTE: Servoy development is not considered as Application Development but as Database front-end development.
(1) The Servoy Developer or End User is only granted a non-exclusive, non-transferable right to use the Application and Adaptive Server Anywhere (ASA) "Embedded Runtime Programs" for its own internal business purposes. The Servoy Developer or End User may only use the Embedded Runtime Programs with and as part of Servoy's Application and is prohibited from using and deploying such Embedded Runtime Programs for application development purposes except for developing applications in based on the Servoy Developer product.
(2) The Servoy Developer's or End User's usage of the Application and Embedded Runtime Programs shall be restricted to the licensed Servers and Seats consistent with the pricing terms of this Agreement. The Servoy Developer or End User shall be prohibited from sublicensing, timesharing, rental, facility management, or service bureau usage of the Embedded Runtime Programs.
(3) Servoy's licensor (Sybase) retains title to the Embedded Runtime Programs, and all copies thereof, and associated intellectual property rights therein. The Servoy Developer or End User may not copy the Embedded Runtime Programs, except for inactive backup and archival purposes only, and must include on all copies of the Embedded Runtime Program all copyright, government restricted rights and other proprietary notices or legends included on the Embedded Runtime Program when it was shipped to such licensee.
(4) Servoy and its licensors (including Sybase) shall not be responsible for any indirect, incidental, special and consequential damages. (5) Only object code versions of the Embedded Runtime Programs are licensed to the Servoy Developer or End User and reverse engineering, disassembly or decompilation to derive source code shall be prohibited (except to the extent expressly allowed under applicable law).
(6) The Servoy Developer or End User must agree to comply with all export and re-export restrictions and regulations ("Export Restrictions") imposed by the government of the United States. If any Program license is provided to U.S. government licensee use, duplication or disclosure of the software and documentation by the U.S. Government shall be provided subject to terms and conditions consistent with these Mandatory Terms and any applicable FAR provisions, for example, FAR 52.227-19.
(7) Although copyrighted, the Application (and Embedded Runtime Programs) is unpublished and contains proprietary and confidential information of Servoy and its licensor (Sybase). The Servoy Developer or End User will agree to maintain the Embedded Runtime Programs in confidence and shall use a reasonable degree of care to protect the confidentiality of the Programs.
(8) Upon termination of the license for the Servoy Developer, Servoy Server, Servoy Client and Servoy Runtime, The Servoy Developer or End User shall be required to destroy or return all copies of the Embedded Runtime Program.
(9) Servoy shall have the right to conduct and/or direct an independent accounting firm to conduct, during normal business hours, an audit of the appropriate records of the Servoy Developer or End User to verify the number of copies of the Program in Use and the computer systems and Seats on which such copies are installed.
(10) The following Servoy Applications are included in this Agreement: Servoy Developer, Servoy Server, Servoy Client and Servoy Runtime. These products are described as follows: Servoy Developer: Servoy development tool to build applications. Servoy Developer allows developers to develop applications based on the Servoy development tool. Servoy Developer includes one copy of the Adaptive Server Anywhere database (Embedded Runtime Program). Sybase grants Servoy the right to allow Servoy Developers to develop applications with the Servoy Developer Product and to deploy these applications including Adaptive Server Anywhere to End Users. Servoy Server, with connected Servoy Clients: Servoy Clients include one license of Adaptive Server Anywhere and MobiLink programs. The Servoy Runtime Client allows Servoy developers to develop single user applications that will use Adaptive Server Anywhere Personal Database for a one-time license fee. The main objective of this product is to promote the multi-user editions of Servoy and Sybase iAnywhere products. Developers will be allowed to distribute up to 500 copies of their single user programs/applications including the Adaptive Server Anywhere database free of charge. Further distributions or the distribution of other programs/applications have to be negotiated and are not subject to this Addendum.
For inquiries please contact: Servoy, Algolweg 9-3, 3821 BG Amersfoort, Netherlands, www.servoy.com
AGREEMENT WITH BUSINESS ASSOCIATE This Agreement (Agreement) is by and between the SUBSCRIBER and CLICKCARE, LLC, a New York limited liability company having an office at 78 Horan Avenue, Suite 205, Vestal, New York 13850.
WHEREAS, the provisions of the 1996 Health Insurance Portability and Accountability Act as set forth at 42 U.S.C. Section 1320d (AHIPAA), the HIPAA privacy regulations promulgated thereunder at 45 CFR Part 160 et seq. and the HIPAA security regulations promulgated thereunder at 45 CFR Part 160 et seq. require covered entities to take certain steps to protect patient privacy and patient health information; and
WHEREAS, one of the steps mandated by HIPAA and its implementing regulations requires certain parties who exchange or share Protected Health Information (as hereinafter defined) to enter into written agreements regarding the procedures to be used to safeguard such Protected Health Information;
THEREFORE, the parties hereby agree as follows:
1. Definitions. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in the Privacy Rule.
The following terms used in this Agreement shall have the following meanings:
a. Business Associate. Business Associate shall mean CLICKCARE, LLC.
b. Covered Entity. Covered Entity shall mean (insert name of medical group), as applicable to the Underlying Agreement defined below.
c. Data Aggregation. Data Aggregation shall have the same meaning as the term data aggregation in 45 CFR 164.501. d. Designated Record Set. Designated Record Set shall have the same meaning as the term designated record set in 45 CFR
e. Individual. Individual shall have the same meaning as the term individual in 45 CFR 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 164.502(g).
f. Privacy Rule. Privacy Rule shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
g. Protected Health Information. Protected Health Information shall have the same meaning as the term protected health information in 45 CFR 164.501, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
h. Required By Law. Required By Law shall have the same meaning as the term required by law in 45 CFR 164.501.
i. Secretary. Secretary shall mean the Secretary of the Department of Health and Human Services or his designee.
j. Underlying Agreement. Underlying Agreement shall mean all of the written or oral agreements by and between Covered Entity, or any of them, and Business Associate, whether now existing or hereafter entered into, for appropriate purposes, including without limitation all written agreements still in force.
k. Security Rule. Security Rule shall mean the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR Part 160 et seq.
2. Obligations and Activities of Business Associate
a. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
b. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information
other than as provided for by this Agreement.
c. Business Associate agrees to report to Covered Entity any use or disclosure of Protected Health Information not provided for by this Agreement of which it becomes aware.
e. Business Associate agrees to provide access, at the request of Covered Entity, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR 164.524.
g. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR 164.526 at the request of Covered Entity or an Individual.
h. Business Associate agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or to the Secretary, promptly upon request of Covered Entity, or in a time and manner designated by the Secretary, for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule.
i. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.
j. Business Associate agrees to provide to Covered Entity or an Individual, in the time and manner designated by Covered Entity, information collected in accordance with Section 2(i) of this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.
k. Business Associate will:
1. Implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic protected health information that it creates, receives, maintains, or transmits on behalf of the covered entity as required by the Security Rule;
2. Report to the covered entity any security incident of which it becomes aware.
3. Permitted Uses and Disclosures by Business Associate
Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Underlying Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.
3. Specific Use and Disclosure Provisions
a. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
b. Except as otherwise limited in this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate, provided that the disclosure is Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person.
c. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 42 CFR 164.504(e)(2)(i)(B).
d. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 164.502(j)(1).
4. Obligations of Covered Entity
a. Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices of Covered Entity in
accordance with 45 CFR 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of Protected Health Information.
b. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information.
c. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information.
5. Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
6. Term and Termination
a. Term. The Term of this Agreement shall be effective as of the date hereof, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
b. Termination for Cause. Upon Covered Entity's knowledge of a material breach by Business Associate, Covered Entity shall
1. Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this Agreement and/or the Underlying Agreements, or any of them, if Business Associate does not cure the breach or end the violation within the time specified by Covered Entity;
2. Immediately terminate this Agreement and/or the Underlying Agreements, or any of them, if Business Associate has breached a material term of this Agreement and cure is not possible; or
c. Effect of Termination
1. Except as provided in paragraph (c)(2) of this Section 8, upon termination of this Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity.
2. In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Upon such notification that return or destruction of Protected Health Information is infeasible, Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.
d. Additional Provision Regarding Termination. Notwithstanding anything in this Agreement to the contrary, the parties agree that either party may terminate this Agreement and/or the Underlying Agreements, or any of them, if a party determines that the other party has violated a material term of this Agreement.
a. Regulatory References. A reference in this Agreement to a section in the Privacy Rule or the Security Rule means the section as in effect or as amended.
b. Amendment for Compliance. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Agreement will remain in full force and effect. In addition, in the event Covered Entity believes in good faith that any provision of this Agreement fails to comply with the then-current requirements of the Privacy Rule or Security Rule, Covered Entity shall notify the Business Associate in writing. For a period of up to thirty days, the parties shall address in good faith such concern and shall amend the terms of this Agreement, if necessary to bring it into compliance. If after such thirty-day period this Agreement fails to comply with the Privacy Rule or Security Rule with respect to the concern(s) raised, in the judgment of Covered Entity, then Covered Entity has the right to terminate this Agreement and/or the Underlying Agreements, or any of them, upon written notice to Business Associate.
c. Survival. The respective rights and obligations of Business Associate under Section 8(c) of this Agreement shall survive the termination of this Agreement.
d. Conflicts. The terms and conditions of this Agreement shall override and control any conflicting term or condition of any other verbal or written agreement between Covered Entity and Business Associate. All non-conflicting terms and conditions of any such agreement shall remain in full force and effect.
e. Headings. Headings used herein are for convenience only and shall not be used to interpret the meaning of any provision.
f. No Waiver. No delay or failure of either party to exercise any right hereunder, or to insist upon strict compliance with the terms and provisions hereof, shall constitute a waiver of any right hereunder, or a waiver of the right thereafter to insist upon strict compliance with the terms and provisions hereof.
g. Independent Contractor. The relationship of Covered Entity and Business Associate is that of independent contractors. All acts performed by Business Associate shall be deemed to be performed in its capacity as an independent contractor.
h. No Third Party Beneficiary. This Agreement is intended for the sole benefit of the Business Associate and Covered Entity and does not create any third party beneficiary rights, except to the extent that the Privacy Rule or Security Rule validly requires the Secretary of the Department of Health and Human Services or any other person to be a third party beneficiary to this Agreement.
i. Notices. Notices required to be given hereunder shall be given in writing either given personally or sent by registered or certified mail, return receipt requested, or by reputable overnight courier. Such notices , when given by Business Associate, shall be addressed to Covered Entity at (insert name of medical group, address, city, state and zip, Attn: President and CEO). Such notices given by Covered Entity shall be addressed to Business Associate at 78 Horan Avenue, Suite 205, Vestal, New York 13850. Either party may, by written notice to the other party, change the address to which notices directed to such party shall be mailed.
j. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof.
k. Changes Must Be in Writing. This Agreement may not be changed or terminated orally, but only by a writing executed by the parties.
l. Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and permitted assigns.
CLICKCARE SUBSCRIPTION AGREEMENT
1. CONSTRUCTION. Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the Subscription Information Table.
2. SUBSCRIPTION ACCOUNT.
2.1 Access. Commencing on the Effective Date, ClickCare shall make available to Subscriber the on-line service hosted by ClickCare at https:// iclickcare.com via secure login (the "Service").
2.2 Rights to Services. Subject to the terms and conditions of this Agreement, ClickCare hereby grants Subscriber a non-exclusive, non-transferable, worldwide right and license during the term of this Agreement to access the Service.
2.4 Updates. At no charge to Subscriber, ClickCare shall install on its servers any software updates that ClickCare deems necessary to address errors, bugs, or other performance issues in the Service (collectively, "Updates"). Updates, if any, shall be subject to the same license terms and conditions of this Agreement.
2.5 Reservation of Rights. All rights not expressly granted to Subscriber pursuant to this Agreement are reserved by ClickCare.
2.6 Subscriber Data. ClickCare agrees that, as between ClickCare and Subscriber, Subscriber is and shall remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber data, documentation, spreadsheets, records, and other information on, uploaded, or submitted to the Service or otherwise provided to ClickCare in connection with this Agreement ("Subscriber Data"). Subscriber hereby grants ClickCare a non-exclusive, non-transferable, worldwide right and license during the term of this Agreement to copy, use, and provide access to the Subscriber Data solely in connection with the Service.
2.7 Use of Financial Information. ClickCare does not use the financial information that it collects from the website and/or pursuant to the execution of this agreement for any other purpose, nor do we share the information with any affiliate or third party, except as specifically noted and with agencies, vendors, partners, or affiliates under contract with ClickCare or as may be required by law.
3. SUPPORT SERVICES. ClickCare shall provide to Subscriber Help Desk telephone assistance for maintenance and technical support on business days from 9:00 AM to 5:00 PM Eastern Standard Time. ClickCare shall respond to all requests for support within a commercially reasonable amount of time.
4. TRAINING HELP DOCUMENTATION.
4.1. Electronic HELP. An easy-to-use HELP document for iClickCare® is available as a free electronic download.
4.2. Printed User Guides. Subscriber may obtain from ClickCare full color printed User Guides for iClickCare® at a price of Fifty Dollars ($50.00) per set (Web Client, iPhone, iPad/Mini) plus shipping.
5. TRAINING SERVICES. Any additional training provided by ClickCare to Subscriber or Subscriber’s designees shall be provided at a rate of One Hundred Dollars ($100.00) per hour.
6. SUBSCRIBER OBLIGATIONS.
6.1 User Pictures. Subscriber will upload ID pictures of the clinical providers (a picture like those on a driver’s license) to the appropriate Settings Profiles. This enhances usability, security, and correctness of the user interface display.
6.2 Passwords and Security. Subscriber agrees to immediately notify ClickCare of any unauthorized use of a password or account or any breach of security. ClickCare shall not be liable for any loss or damage arising from Subscriber’s failure to comply with this provision. Subscriber is solely responsible for maintaining the confidentiality of its password(s) and account(s), and is fully responsible for all activities that occur under Subscriber’s password(s) and account(s).
6.3 Fees and Payment Terms. Subscriber will pay to ClickCare the Annual Fee (or such other fee schedule as the parties agree) during the term hereof for the right to use the Service per the terms of this Agreement. This fee shall be due and payable upon Subscriber’s execution of this Agreement and upon the first day of each automatic renewal term that this Agreement is extended as provided in Section 7 herein. Subscriber shall pay a late fee on all amounts not paid within fifteen (15) days of the date due equal to one and one-half percent (1.5%) per month of such outstanding amounts. ClickCare further reserves (among other rights and remedies) the right to suspend Subscriber’s access to the Service until all past due fees and late fees are paid.
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement shall correspond with the fees and payment terms selected under 6.3 above. Renewal is automatic at the same price quoted unless there was an introductory offer.
(a) ClickCare may terminate this Agreement if Subscriber materially breaches this Agreement.
(b) If ClickCare discontinues offering the Service, or if ClickCare ceases to do business in the ordinary course for any reason, then either party may cancel this Agreement immediately upon written notice to the other party.
7.2 Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (a) Subscriber shall discontinue all use of the Service; (b) Subscriber shall delete or otherwise destroy any content received by Subscriber except those materials as required by law (c) Subscriber shall not be entitled to any refund of any fees paid to ClickCare in connection with the Service, (d) Subscriber shall pay any outstanding balances for services, and (e) If requested upon termination, Subscriber patient data shall be forwarded to Subscriber in pdf format within a reasonable time period, and (f) ClickCare reserves the right to utilize a commercial collection agency for the collection of outstanding balances 60 (sixty) days after they are due.
8. INDEMNIFICATION. Subscriber shall indemnify, defend, and hold ClickCare, its directors, officers, managers, employees, and agents harmless from and against any and all suits, actions, proceedings at law or in equity, claims, liabilities, losses, costs and expenses, including, without limitation, expenses of litigation and reasonable attorneys’ fees, resulting from any breach of this Agreement by the Subscriber or asserted by any third party due to or arising out of the Subscriber’s use of, or conduct with respect to, the Service.
9. WARRANTY / LIMITATION OF LIABILITY.
9.1 Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth in this Agreement.
9.2 Disclaimer. OTHER THAN THE WARRANTIES CONTAINED IN THIS AGREEMENT, THE SERVICE AND ANY CLICKCARE TRAINING, SUPPORT, OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, THE "SERVICES") ARE PROVIDED STRICTLY ON AN AS-IS BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED. CLICKCARE MAKES NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE OR ACCESSIBLE FOR A CERTAIN PERIOD OF TIME EACH DAY, UNINTERRPUTED, WITHOUT DELAY, OR ERROR-FREE.
9.3 Limitation. CLICKCARE’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, OR ANY OTHER CLAIM SHALL BE LIMITED TO ONE YEAR’S ANNUAL FEE. IN NO EVENT WILL CLICKCARE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITIES OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCTS LIABILITY.
10. HIPAA COMPLIANCE. Subscriber understands and agrees that although the Service is designed to facilitate HIPAA-compliant communications, it shall be solely the obligation and responsibility of the Subscriber to ensure that its use of the Service and content received via the Service complies with any and all state and federal regulations concerning the confidentiality of patient medical records, including but not limited to the provisions of the 1996 Health Insurance Portability and Accountability Act set forth at 42 U.S.C.S. Section 1320 ("HIPAA"), the HIPAA privacy regulations promulgated at 45 CFR Section 160 et seq, and the 2009 Health Information Technology for Economic and Clinical Health Act ("HITECH").
11.1 Notices. All notices hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation to the address set forth in this Agreement, or other address stipulated in writing by a party. Notice shall be deemed delivered and received on the date it is actually received.
11.2 Amendment, Assignment. This Agreement may not be amended except in a writing executed by authorized representatives of Subscriber and ClickCare. Subscriber may not assign this Agreement, or sublicense, assign or delegate any right or duty hereunder, without the prior written consent of ClickCare. Any such purported assignment without such prior written consent shall be void. ClickCare may assign this Agreement without the Subscriber’s prior consent to an acquirer of assets or a successor by merger. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
11.3 Survival of Certain Provisions. The rights and obligations in Sections 6.1, 7.2, 8, 9, and 11 shall survive termination or expiration of this Agreement for any reason.
11.5 Linked Websites. The Service and/or the content received via the Service may contain links to web sites operated by other parties. Such links do not imply ClickCare's endorsement of material on any other site and ClickCare disclaims all liability with regard to Subscriber's access of such linked web sites.
11.6 Waiver. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
11.7 Severability. If any provision of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of the Agreement, or the application of such provision in other circumstances, shall not be affected thereby, and each provision shall be valid and enforced to the fullest extent permitted by law.
11.8 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, United States.