Terms of Service

BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

Modifications to this Agreement: PatientIQ reserves the right to make modifications to this Agreement at its discretion. Any such changes will typically take effect upon the renewal of the Customer’s current Subscription Term or the commencement of a new Sales Order after the activation of the updated Agreement. PatientIQ will use reasonable efforts to inform the Customer of any such changes through messages sent to the Customer’s primary contact(s) email or other communication methods.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Services through any provisioning or registration or (b) the effective date of the first Sales Order, as applicable, referencing this Agreement. This Agreement will govern the Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

These Terms of Service (the “Agreement”) are entered into by and between Datamonkey, Inc. dba PatientIQ, a Delaware corporation (“PatientIQ” or “Provider”), and the person or entity placing an order for or accessing the Services (“Customer” or “you”). Notwithstanding the above, if you are an employee or representative of a company or entity that has a valid and existing Master Services Agreement (“MSA”) with PatientIQ, the terms of that MSA will govern your use of the Services to the extent that the MSA’s provisions are in conflict with or divergent from this Agreement.

In consideration of the terms and conditions set forth below, the parties agree as follows:

  1. Access to Services

The Provider will make the Services and Software available to the Customer under this Agreement, the applicable Sales Order, the Documentation, and provide such Services in accordance with this Agreement, Addendums, the Professional Services Agreement (“PSA”) and Business Associate Agreement ("BAA") (if applicable), and laws and government regulations applicable to the Provider’s business, during each Subscription Term. During the Subscription Term, Provider grants to the Customer a limited, non-exclusive, non-transferable right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the subscription or otherwise noted in the Sales Order.

 

  1. Responsibilities of the Customer

    a. Users. The Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify Provider promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which the Customer becomes aware. Provider and its Affiliates will not be liable for any damage or loss that may result from the Customer’s breach of the foregoing obligations.
    b. Consent. The Customer represents and warrants that it has obtained, and will continue to obtain, all necessary consents and permissions from its End Users for the collection, use, disclosure, and processing of their personal information as contemplated under this Agreement. The Customer shall provide appropriate notices to its end users about, and if required by applicable laws, obtain their valid consent to Provider’s collection, processing, and transfer of personal information. The Customer will comply with all laws and regulations applicable to the End Users’ personal information, including without limitation, data privacy laws and regulations. The Customer will provide evidence of such consents and permissions to the Provider upon the Provider’s reasonable request. The Customer acknowledges and agrees that it is solely responsible for ensuring that it meets its obligations under applicable law and this Agreement.
    c. Use Restrictions. The Customer may only use the Services in accordance with the Documentation, subject to the use limitations indicated in any Sales Order pursuant to which the Customer subscribes to the Services, and the terms of this Agreement. The Customer agrees to comply with the PatientIQ Acceptable Use and Conduct Policy (defined below) which is hereby incorporated into this Agreement. The Customer also agrees not to use the PatientIQ Technology (defined below) to: (i) process data on behalf of any third party other than the Customer’s Users and End Users; (ii) use the Services or PatientIQ Technology in violation of applicable law; (iii) store or transmit any content that infringes upon any third party’s intellectual property rights; or (iv) for competitive intelligence or performance benchmarking purposes.
    d. Access Limitations. The Customer is prohibited from: (i) licensing, sublicensing, selling, reselling, renting, leasing, transferring, assigning, distributing, time-sharing, or otherwise providing commercial access or making the Provider Technology accessible to any third party other than Users and End Users, and this should only be done in accordance with its allowed business operations as expressly permitted by this Agreement; (ii) creating a false implication of any sponsorship or association with Provider; (iii) decompiling, reverse engineering, disassembling, reproducing, or copying or otherwise accessing or determining the source code or underlying program of any portion of the Provider Technology.

  2. Availability

The Provider agrees to maintain a Service Level Agreement during the term of this Agreement as stipulated at www.patientiq.io/terms/sla. The Provider will adhere to and comply with all terms, conditions, and performance standards set forth in the SLA. The Provider will notify the Customer of any updates or changes to the SLA that may occur during the term of this Agreement. Such updates will be made available at the above-mentioned URL. The Customer has the right to review and approve any proposed changes to the SLA that materially affect the Provider’s service obligations or the Customer’s rights and obligations.

  1. Support

During the Subscription Term, the Provider will provide support to Users as described in the applicable Sales Order. If the Provider’s support for the applicable Services is alleged to lack necessary skill, care, or diligence, the Customer’s exclusive remedy under this Agreement shall be the re-performance of the relevant support.

  1. Fees and Payment
    a. Fee Requirements. All charges pertaining to the Services that the Customer has purchased (“Fees”) are described in the applicable Sales Order. Fees must be fully paid within a thirty (30) day timeframe from the date of the invoice or as mentioned in the applicable Sales Order. The obligations of payment are non-refundable, regardless of the Customer’s use of the Services and unless this Agreement explicitly allows Fees that have been paid cannot be refunded. The Customer will pay the Fees using a sanctioned payment method as indicated in the applicable Sales Order. Unless the Sales Order specifies otherwise, the Customer’s subscription to the Services will renew automatically for the same term length as the then current Subscription Term, according to the terms of renewal specified in Section 6(b) below. Throughout the Subscription Term, the Customer is not allowed to decrease their Service Plan or User count.
    b. Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from the Provider, the Provider may suspend the Customer’s access to the PatientIQ Technology, until such unpaid Fees are paid in full.
    c. Payment Disputes. If the Customer is disputing the applicable charges reasonably and in good faith, and is cooperating diligently to resolve the dispute, the Provider will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause), or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer. However, any undisputed amounts must be paid in full. If the parties are unable to resolve such a dispute within fifteen (15) days, the Provider may suspend the Services until the dispute is resolved.
    d. Applicable Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). The Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent the Provider is legally required to collect the same, will be itemized on the Provider invoice. If the Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), the Customer will gross up the payments so that the Provider receives the amount actually quoted and invoiced. If the Provider has the legal obligation to pay or collect Taxes for which the Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides the Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
    e. Orders by Affiliates. The Customer’s Affiliates may purchase Services directly from the Provider by executing a Sales Order which is governed by the terms of this Agreement. Such Sales Order will establish a new and separate agreement between the Customer’s Affiliate and the Provider. If the Affiliate resides in a different country than Customer, then the Sales Order may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).

 

  1. Term, Termination, and Suspension
    a. Term. This Agreement is effective as of the Effective Date and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant Sales Order and continue for the Subscription Term specified therein.
    b. Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days before the expiration of the relevant Subscription Term, Service Plans will automatically renew at the same number of subscriptions and at the same Service Plan, for a period equal to the previous Subscription Term. The Provider reserves the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
    c. Suspension. The Provider reserves the right to suspend the Customer’s access to the Services or Software on the following grounds: (i) failure to pay or late payment of Fees that are not disputed, as outlined in Section 5(b) above, in which case the Provider will provide at least forty-eight (48) hours’ notice of suspension; (ii) failure by the Customer to renew the Services; (iii) violation of Section 2(c) (Use Restrictions) by the Customer or its Users; or (iv) if the Provider determines it necessary to prevent or mitigate the effects of Malicious Software (as described in Section 9.b below), a security breach, or potential harm to the Customer, the Provider, or other customers of the Provider.
    d. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

 

  1. Customer Data
    a. Use of Customer Data. As between the parties, the Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Provider Technology. Subject to the terms of this Agreement, Customer hereby grants to Provider and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide, maintain, and improve the Provider Technology and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Provider under this Agreement. If Customer is subject to the US Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), Customer may not upload protected health information (“PHI”) as defined by HIPAA, unless (i) Customer has entered into a business associate agreement with Provider, which will govern the parties’ respective obligations with respect to any PHI uploaded by Customer to the Services or Software (“BAA”) or (ii) Customer has obtained the required patient consent, and proof of such consent should be made available upon request by the Provider or any applicable regulatory body.
    b. Data Security and Privacy. The Provider will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. Provider measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that Provider and its Affiliates will process Customer Data in accordance with applicable data protection laws and this Agreement. The Customer agrees to only transfer Personal Data to the Services as needed for them to access and use the Services and as allowed by data protection laws, considering the nature of the Personal Data, specifics of the Services, and the terms of this Agreement.
    c. Data Export. If this Agreement is terminated for any reason, Provider export Customer Data within 90 days following termination.

 

  1. Confidentiality

Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

 

  1. Intellectual Property
    a. Ownership Rights. The Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of the Customer’s Confidential Information provided under this Agreement, and the Provider obtains no rights in the foregoing except for the express rights granted in this Agreement. The Provider and its licensors retain all right, title, and interest in and to Provider Technology and Usage Data (defined below). The Customer acknowledges that the Services are offered as online, hosted solutions, and that the Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. The Provider may freely use and incorporate into the Provider’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by the Customer or by any Users or End Users relating to the Provider’s products or services. Feedback and any other suggestions are provided by the Customer exclusively “AS IS,” in the Customer’s sole discretion, and will not be used by the Provider in any way that identifies or permits identification of the Customer, its Affiliates, Users, or End Users.
    b. Usage Data. Notwithstanding anything to the contrary in this Agreement, the Provider may collect and use any data that is derived from the use of the Services or characteristics such as performance metrics, location data, or time of use, in each case that is anonymized and aggregated such that such data could no longer directly or indirectly identify the Customer, the Customer’s Users or End Users (“Usage Data”).
    c. Updates. The Provider may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services or Software are subject to this Agreement. Customer agrees that its purchase of licenses to the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written comments made by the Provider with respect to future functionality or features.
    d. Customer PRO Data. “Customer PRO Data” means both the patient-reported outcome data and the clinical data (which may contain PHI) collected as a result of the Services provided to Customer. The scope of this data comprises all information pertinent to patient feedback, health condition, clinical findings, treatments received, or health outcomes. This information could either be directly sourced from the patients or documented by the healthcare professionals affiliated with the Customer. Data or information generated by the Provider for its own internal purposes is not covered by this definition unless it directly relates to the Services provided to the Customer.
    e. Consent to Use Data Analysis Results. Except if and as otherwise agreed by the parties in this Agreement or a separate agreement, (i) to the extent that the Services under this Agreement include data analysis of Customer PRO Data conducted for the benefit of Customer, then the results of such data analysis may be used by Provider only for purposes of improving operational performance of the Services for the benefit of Customer (with the understanding that those improvements may also benefit other Provider customers who receive services from the Provider that are the same as or similar to the Services received by Customer) and (ii) the Provider shall specifically be permitted to use the Customer PRO Data in furtherance of benchmarking, quality control, and other internal business purposes, including improvements to the Provider Services for the benefit of the Customer (with the understanding that those improvements may also benefit other the Provider customers who receive services from the Provider that are the same as or similar to the Services received by Customer) (but no Customer PRO Data will be disclosed to others except for de-identified and aggregated Customer PRO Data as permitted below). For purposes of clarity, during the Term the Provider may incorporate non-identifiable aggregated data extracts from the Customer PRO Data, including the Customer PRO Data which constitutes PHI that has been de-identified and aggregated in accordance with HIPAA and cannot reasonably be re-identified by the Provider, into the Provider’s Services, documentation, and other materials regarding services which the Provider provides. The Provider agrees that it shall be responsible for any and all losses or other harm experienced by the Customer arising out of any third party’s re-identification of any such de-identified aggregated Customer PRO Data which has been incorporated into the Provider’s Services, documentation, and other materials. The parties agree that the Provider shall retain sole ownership of any such de-identified aggregated Customer PRO Data which is incorporated into the Provider documentation and materials.

 

  1. Warranties/Disclaimer of Warranties
    a. Service Warranty. The Provider warrants that the Services and Software will perform in accordance with the Documentation in all significant respects. If the Customer notifies the Provider in writing of a breach of this warranty within thirty (30) days of becoming aware of it, the Provider will make all diligent efforts to adjust the Services or Software so that they comply with the above warranty. In the event that the Provider is unable to correct an issue that substantially affects the Services’ utility, the Customer’s sole and exclusive remedy will be the refund of any unused Fees that have been pre-paid for the applicable Services. This warranty will not apply if the error or non-conformance was caused by the Customer’s breach of this Agreement, or by the misuse of the Services or Software by the Customer or its Users, or by any third-party hardware, software, or services used in conjunction with the Services or Software.
    b. Malware Warranty. The Provider warrants that it will employ commercially acceptable means to monitor the Services provided in order to detect and prevent the introduction of any computer instructions, circuitry or other technological with means intended to cause disruption, damage, or interference to the authorized use of, or to enable unauthorized access to, the computing and communication resources or equipment of either the Provider or the Customer. This includes, but is not limited to, any code that contains viruses, Trojan horses, worms, backdoors, trap doors, time-out devices, or other self-replicating or damaging elements (“Malicious Software”).
    c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

  1. Limitation of Liability
    a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
    b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO PROVIDER IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).
    c. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, THE PROVIDER AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SECONDARYCAP”).
    d. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SECONDARYCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
    e. THE PARTIES AGREE THAT THIS SECTION 11 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SALES ORDER.

 

  1. Indemnification
    a. Indemnification by the Provider. The Provider will defend Customer and its Affiliates, from any third-party claim alleging that the Customer’s use of the Provider Technology as contemplated under this Agreement infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless the Customer and its Affiliates from and against any damages and costs awarded against the Customer or its Affiliates, or agreed in settlement by the Provider (including reasonable attorneys’ fees) resulting from such IP Claim. The Provider will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Provider Technology by Customer, its Affiliates or Users; (ii) modification of the Provider Technology by anyone other than Provider or its representatives; (iii) or the combination, operation or use of the Provider Technology with other data, hardware or software not provided by Provider. If Customer’s use of the Provider Technology results (or in Provider’ opinion is likely to result) in an IP Claim, the Provider may at its own option and expense (a) procure for the Customer the right to continue using the foregoing items as set forth under this Agreement; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by the Provider, then either the Customer or the Provider may terminate Customer’s subscription to the applicable Services, whereupon the Provider will refund Customer, on a pro-rated basis, any Fees the Customer has previously paid the Provider for the corresponding unused portion. The sections above state the Provider’s entire liability and the Customer’s exclusive remedy with respect to an IP Claim.
    b. Indemnification by the Customer. The Customer agrees to indemnify the Provider and its Affiliates and cover any damages and costs awarded or agreed upon in settlement (including reasonable attorneys’ fees). This obligation pertains to any third-party claim (“Claim”) resulting from: (i) unauthorized supply, disclosure, or processing of Customer Data by the Customer or its Affiliates, including any Personal Data involved, (ii) violations of laws applicable to the business of the Customer or its Affiliates while using the Services applicable to this Agreement.
    c. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 12, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense, and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Any indemnification obligation under this Section 12 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

  2. Miscellaneous.
    a. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Sales Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
    b. Entire Agreement. This Agreement, together with any Sales Order, or BAA constitutes the entire agreement and supersedes any and all prior communications or agreements between the Customer and the Provider, including but not limited to Customer Sales Orders, regarding the subject matter of this Agreement. In the event of a conflict between any Sales Order, and this Agreement, the order of precedence will be, first, the Sales Order, second, the BAA, and third the Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
    c. Publicity Rights. The Provider may identify the Customer as the Provider customer in its promotional materials. The Customer may request that the Provider stop doing so by submitting an email to legal@patientiq.io at any time. Please note that it may take us up to thirty (30) days to process a request.
    d. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
    e. Survival. Sections 2.c (Use Restrictions), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 8 (Confidentiality), 9 (Intellectual Property), 10.c (Warranty Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 13.b (Entire Agreement), 13.e (Survival), 13.f. (Notices), 13.i (Governing Law) and 13.j (Dispute Resolution), and 14 (Definitions) will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
    f. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the Sales Order; or (ii) electronic mail to the e-mail address provided for the Customer’s account. The address for a notice to PatientIQ is: PatientIQ, 350 W. Ontario St., Suite 300, Chicago, IL 60654 with a copy to legal@patientiq.io by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
    g. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If the Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify PatientIQ at legal@patientiq.io.
    h. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited , acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all Sales Orders on written notice to the non-performing party. If the Provider is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services or Software for the period noted herein, and the Customer terminates this Agreement and all Sales Orders, then Provider will provide the Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
    i. Governing Law. This Agreement is governed by the laws of the State of Illinois without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of Illinois, Cook County for any claims or dispute relating to this Agreement.
    j. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in Chicago, Illinois. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

  1. Definitions.

“Affiliate” means any entity, organization, or medical practice that directly or indirectly exerts control over, is under the control of, or is under common control with a party to this Agreement. The term “control” is defined as the power to influence or direct the activities and policies of an entity, either through ownership of voting securities, by contract, or through any other channel.

“AUP” means the PatientIQ Acceptable Use and Conduct Policy, which is located currently at www.patientiq.io/aup, as updated from time to time.

“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Data” means all electronic data, text, messages, or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by the Customer or its Users.

“Data Claims” means any claims arising from either (a) a party’s breach of Section 7 (Customer Data), Section 8 (Confidentiality), or the BAA (if applicable) where such breach results in the unauthorized disclosure of Customer Data.

“Documentation” means any manuals, instructions, technical specifications, and other materials, in any form or media, that describe the functionality, installation, testing, operation, use, or technical components of the Software or Services.

“End User” means, any person or entity other than Customer or Customer’s Users with whom the Customer interacts using the Services.

“PatientIQ Technology” is defined as (i) the Services, Software, Documentation, Provider’s website(s) and any content posted on the Provider’s website(s), (ii) any educational resources, support materials, templates, tools, methodologies, or proprietary knowledge, (iii) Provider’s Confidential Information, and (iv) any alterations or derivative works stemming from the aforementioned.

“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).

“Professional Services Agreement” or “PSA” means, PatientIQ’s professional services agreement located at www.patientiq.io/terms/psa, as updated from time to time.

“Sales Order” means (i) any service order referencing this Agreement and executed by the Customer and the Provider that details the Services subscribed to and corresponding Service Plans, the number of Users authorized to use the Services, Fees payable to PatientIQ, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change Sales Orders.

“Services” means, the Provider software-based service offerings identified on the Sales Order and any Updates, including any Software, or Documentation made available by the Provider with such offering, but excludes any applications or APIs separately provided by third parties (if applicable).

“Service Plans” means the different subscription packages that detail the costs, features, services, and limitations available to the Customer for each User.

“Software” means the generally available software provided by the Provider in connection with the Customer’s use of the Services but excludes any applications or APIs that may be provided by third parties.

“Subscription Term” means, the period stated on a Sales Order during which Customer subscribes to the Services.

“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Services provided by PatientIQ to all subscribing customers but excludes separately priced new products or modules.

“User” means, any individual who is authorized by the Customer to use the Services, including an administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.