Terms & Conditions

1. DEFINITIONS AND CONSTRUCTION

In addition to any definitions contained within the body of these Terms, the following definitions apply:

“Acclivity Employee” shall mean any employee, agent, contractor or subcontractor, or any other person utilized by Acclivity to provide the Services.

“Acclivity Confidential Information” shall have the meaning set forth in Section 5.1.

“Acclivity Indemnified Parties” shall mean: (1) Acclivity, (2) its Affiliates and assignees, and (3) all officers, directors, agents and employees of Acclivity and its subsidiaries, Affiliates and assignees.

“Acclivity Materials” shall mean any pre-existing work, documents, data, know-how, methodologies, software, information or materials that Acclivity developed or acquired independent of Customer prior to the commencement of these Terms, and, any work, documents, data, know-how, methodologies, software, information or materials that Acclivity develops or acquires during these Terms and which are not directly related to the Services provided to Customer hereunder.

“Active Patients” shall have the meaning set forth in Section 2.3.

“Affiliate” shall mean any Person or entity directly or indirectly Controlling, Controlled by, or under common Control with a Party.

“Agreement” shall mean the applicable Master Services Agreement between Acclivity and Customer.

“Authorized Users” shall have the meaning set forth in Section 2.2.

“Control” (and its correlative meanings “controlled by” and “under common control”) means with respect to any person or entity, the right to exercise or cause the exercise of at least thirty-three percent (33%) or more of the voting rights in such Person.

“Customer Confidential Information” shall have the meaning set forth in Section 5.1.

“Customer Data” shall mean all information, data, materials, works, expressions or other content, including any that are: (a) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Customer or any Authorized User for Processing by or through the Services, or (b) collected, downloaded or otherwise received by or on behalf of Customer or any Authorized User pursuant to these Terms or at the written request or instruction of Customer or any Authorized User. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Customer Data are themselves also Customer Data. For the avoidance of doubt, Customer Data includes all User Data and Personal Information.

“Customer Indemnified Parties” shall mean: (1) Customer, (2) its subsidiaries, assignees and agents, and (3) all officers, directors, agents and employees of Customer and its subsidiaries, and assignees.

“Deliverables” shall mean any and all software, supporting documentation, training and other deliverables provided or required to be provided from time to time by Acclivity pursuant to these Terms or any Statement of Work or Exhibit that are not Acclivity Materials.

“Force Majeure Event” shall have the meaning set forth in Section 11.1.

“Governmental Authority” shall mean any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, international or foreign.

“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended by the Stimulus Act; and regulations adopted pursuant thereto, including but not limited to 45 C.F.R. Parts 160 and 164.

“Law” shall mean any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction or requirement of or by any Governmental Authority.

“Parties” shall mean Customer and Acclivity.

“Party” shall mean either Customer or Acclivity, as the case may be.

“Person” shall mean an individual, trust, corporation, partnership, association, limited partnership, limited liability company, business trust, or any other regular commercial entity.

“Personal Information” shall mean any information that any Acclivity Employee collects, receives or obtains, from or on behalf of Customer or any of its Authorized Users that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual’s name, address, social security number, etc., and any other information relating to an identified or identifiable individual. Personal Information includes such information of or pertaining to Customer’s or Authorized Users’ personnel, directors, officers, agents, suppliers, contractors, investors or customers and all “nonpublic personal information.”

“Process” shall mean to perform any operation or set of operations on any data, information, material, work, expression or other content, including to: (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative, works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.

“Proprietary Materials” shall mean any information of the Customer that is provided to or accessed by Acclivity in connection with these Terms, including but not limited to the Customer Data and the Deliverables.

“Services” shall mean any and all services, solutions, functions and responsibilities provided or required to be provided by Acclivity pursuant to these Terms or any Statement of Work.

“Statement of Work” or “SOW” shall mean any statement of work (or similar description of services) entered by the Parties pursuant to these Terms and any attachments, exhibits, schedules or addendum thereto.

“Term” shall have the meaning set forth in Section 4.

“User Data” means any and all information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User, including any end user profile, visit, session, impression, click through or click stream data and any statistical or other analysis, information or data based on or derived from any of the foregoing.

2. SERVICES

2.1. Scope of Work. These Terms set forth the terms and conditions under which Acclivity agrees to provide access to certain hosted “software as a service” and provide all other services, data import/export, monitoring, support, backup and recovery, change management, technology upgrades, documentation, and training necessary for Customer’s productive use of such software (the “Services”),

2.2. Authorized Users. For the purposes of having the right to receive or use Services, Acclivity Materials and Deliverables under these Terms, the term “Customer” shall include all Customer’s employees, agents, contractors, or suppliers of services that have a need to use the Services, Acclivity Materials and Deliverables for the benefit of Customer (“Authorized Users”), who shall have the right to operate and use the same. Authorized Users other than Customer are third party beneficiaries under these Terms. Customer has the right to enforce all aspects of these Terms on its own behalf and on behalf of other Authorized Users.

2.3. Active Patients. For the purposes of having the right to receive or use Services, Acclivity Materials and Deliverables under these Terms, the terms “Patients” or “Active Patients” shall include all loaded, managed, and maintained records of members, patients, targeted patients and analyzed patients that have a need to use the Services, Acclivity Materials and Deliverables for the benefit of Customer.

2.4. Backup and Recovery of Customer Data. As a part of the Services, Acclivity is responsible for maintaining a backup of Customer Data in a format acceptable to Customer, for an orderly and timely recovery of such data in the event that the Services may be interrupted. Unless otherwise described in any Exhibit or Statement of Work, Acclivity shall maintain a contemporaneous backup of Customer Data that can be recovered within two (2) weeks at any point in time. Additionally, Acclivity shall store a backup of Customer Data in an off-site secure facility no less than weekly, maintaining the security of Customer Data, the security requirements of which are further described herein.

3. LICENSE GRANT AND RESTRICTIONS

3.1. License Grant. Acclivity hereby grants to Customer, exercisable by and through its Authorized Users, a nontransferable, non-sublicensable, nonexclusive, royalty-free, irrevocable (except as provided herein) right and license throughout the world during the Term and such additional periods, if any, as Acclivity is required to perform Services under these Terms or any Statement of Work or Exhibit (collectively, the “Purpose”), to:

3.1.1. access and use the Services and Acclivity Materials, including in operation with other software, hardware, systems, networks and services, for Customer’s business purposes, including for Processing Customer Data;

3.1.2. generate, print, copy, upload, download, store and otherwise Process all graphical user interface (GUI), audio, visual, digital and other output, displays and other content as may result from any access to or use of the Services;

3.1.3. prepare, reproduce, print, download and use a reasonable number of copies of the specifications and documentation as may be necessary or useful for any use of the Services under these Terms; and

3.1.4. access and use the Services and Acclivity Materials for all such non-production uses and applications as may be necessary or useful for the effective use of the Services permitted hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support and repair, which access and use will be without charge and not included for any purpose in any calculation of Customer’s or its Authorized Users’ use of the Services, including for purposes of assessing any fees or other consideration payable to Acclivity or determining any excess use of the Services.

4. CUSTOMER COVENANTS AND RESPONSIBILITIES

4.1. Customer shall not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Services available to any third party or use the Services for any purpose other than the Purpose.

4.2. Customer hereby grants Acclivity a perpetual, sub-licensable, irrevocable, royalty-free, and worldwide license to the Customer Data in order for Acclivity to provide the Services, including a license to store, transmit, maintain, analyze, anonymize and display Customer Data, and to maintain copies of Customer Data so Acclivity can perform benchmarking and other metrics. Customer acknowledges that anonymized data shall be maintained in benchmarking data lakes for indefinite use by Acclivity.

4.3. Customer shall not, in connection with the Services, upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

4.4. Customer shall: (i) notify Acclivity immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Acclivity immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or any Authorized User, and (iii) not provide false identity information to gain access to or use the Services.

4.5. Customer shall be solely responsible for the acts and omissions of its Authorized Users. Acclivity shall not be liable for any loss of data or functionality caused directly or indirectly by the Authorized Users.

4.6. Customer is solely responsible for ensuring that the Customer Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.

4.7. Customer hereby grants Acclivity a perpetual, sub-licensable, irrevocable, royalty-free, worldwide, and transferable license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Authorized Users, which is related to the Services.

4.8. Customer agrees that Acclivity may use, on a perpetual and irrevocable basis, the Personal Information of Customer’s patients, to (i) perform statistical analysis, create benchmarks and patient-specific metrics (collectively the “Patient Metrics”) and (ii) share the Patient Metrics with only Acclivity customers who participate in the Acclivity Connected Care Platform and are treating providers of the specific Customer’s patients identified in the Patient Metrics.

5. CONFIDENTIAL INFORMATION

5.1. Acclivity understands and agrees that all materials and information provided by Customer, accessed by Acclivity as a result of these Terms, or developed by Acclivity in connection with any work subject to these Terms, including all Proprietary Materials, and all materials and information relating to said work (all the foregoing the “Customer Confidential Information”) are valuable assets of Customer and are to be considered Customer’s proprietary information and property. Acclivity will treat all Customer Confidential Information with the highest degree of care necessary to ensure no disclosure occurs (except if and to the extent authorized in writing by Customer). Except as expressly set forth in these Terms, Acclivity will not use, disclose, make or have made any copies of any Customer Confidential Information, in whole or in part, without Customer’s prior written approval.

5.2. Customer Confidential Information shall not include information that: (1) is already in the possession of Acclivity without obligation of confidence; (2) is now is or later becomes publicly available without violation of these Terms by Acclivity; (3) is received by Acclivity from a third party which is not under a direct or indirect obligation of confidentiality to Customer; (4) is independently developed by Acclivity without reference nor access to Customer Confidential Information; and (5) is required by order of a court or an administrative governmental agency to be disclosed, provided that Acclivity, if legally permitted, gives prompt prior notice to Customer of the impending disclosure in time for Customer to appear and oppose the disclosure. Acclivity understands and agrees that any breach of the restrictions contained in this Section will cause irreparable harm to Customer, entitling Customer to injunctive relief in addition to all other legal remedies.

5.3. Customer understands and agrees that all materials and information provided by Acclivity, including all proprietary materials, and all materials and information relating to said work (all the foregoing the “Acclivity Confidential Information”) are valuable assets of Acclivity and are to be considered Acclivity’s proprietary information and property. Customer will treat all Acclivity Confidential Information with the highest degree of care necessary to ensure no disclosure occurs (except if and to the extent authorized in writing by Acclivity). Except as expressly set forth in these Terms, Customer will not use, disclose, make or have made any copies of any Acclivity Confidential Information, in whole or in part, without Acclivity’s prior written approval.

5.4. Acclivity Confidential Information shall not include information that: (1) is already in the possession of Customer without obligation of confidence; (2) is now is or later becomes publicly available without violation of these Terms by Customer; (3) is received by Customer from a third party which is not under a direct or indirect obligation of confidentiality to Acclivity; (4) is independently developed by Customer without reference nor access to Acclivity Confidential Information; and (5) is required by order of a court or an administrative governmental agency to be disclosed, provided that Customer, if legally permitted, gives prompt prior notice to Acclivity of the impending disclosure in time for Acclivity to appear and oppose the disclosure. Customer understands and agrees that any breach of the restrictions contained in this Section will cause irreparable harm to Acclivity, entitling Acclivity to seek injunctive relief in addition to all other legal remedies.

6. INDEMNIFICATION

6.1. Acclivity shall indemnify, defend, and hold harmless all Customer Indemnified Parties from and against any and all losses, costs, claims, suits, damages, liabilities and expenses (including reasonable attorneys’ fees and costs) based upon, arising out of or attributable to any:

6.1.1. claims (including third party claims) alleging actual or alleged acts, errors, omissions or misconduct in or arising from Acclivity’s performance hereunder or otherwise related to these Terms, except to the extent that such liabilities are caused by Customer’s or Authorized User’s breach of these Terms;

6.1.2. actual or alleged personal injury or property damage arising out of: (a) Acclivity’s furnishing or performance of the Services or Deliverables provided pursuant to these Terms; or (b) the fault or negligence of Acclivity or any Acclivity Employee;

6.1.3. failure by Acclivity to comply with any of its obligations set forth in these Terms;

6.1.4. failure by Acclivity or of the Services, Acclivity Materials or Deliverables, as applicable, to comply with any applicable Law; and

6.1.5. violation (or any claim of violation) of any third party’s intellectual property or other proprietary rights (including patents, copyrights, trademarks, trade secrets, licenses or other property rights of any party) in any of the Services, Acclivity Materials, Deliverables or other items provided by Acclivity to Customer under these Terms (including any SOW).

6.1.6. Customer shall indemnify, defend and hold harmless Acclivity Indemnified Parties from and against any and all losses, costs, claims, suits, damages, liabilities and expenses (including reasonable attorneys’ fees and costs) based upon, arising out of or attributable to any:

6.1.7. actual or alleged personal injury or property damage arising out of the fault or negligence of Customer or its Authorized Users;

6.1.8. failure by Customer to comply with any of its obligations set forth in these Terms; and

6.1.9. failure by Customer to comply with any applicable Law.

6.2 The indemnification obligations of Parties under these Terms are subject to the conditions that (1) indemnified gives indemnifier reasonable written notice of any such claims; (2) indemnified provides indemnifier reasonable assistance in defending the claims, at the expense of the indemnifier; (3) indemnifier makes no admission without indemnified’s prior written consent; and (4) indemnified gives indemnifier sole control of the litigation; provided that (a) the indemnified will be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; and (b) the indemnifier will obtain the prior written approval of the indemnified before entering into any settlement of such claim or ceasing to defend against such claim.

7. WARRANTIES AND DISCLAIMER

7.1. Each Party to these Terms represents, warrants and covenants that:

7.1.1. it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation, organization or chartering;

7.1.2. it has, and throughout the Term and any additional periods during which it does or is required to perform the Services will retain, the full right, power and authority to enter into these Terms and perform its obligations hereunder;

7.1.3. the execution and delivery of these Terms and the transactions contemplated herein do not violate, conflict with, or constitute a default under its charter or similar organization document, its bylaws, or the terms or provisions of any material agreement or other instrument to which it is a party or by which it is bound, or any order, award, judgment, or decree to which it is a party or by which it is bound; and

7.1.4. when executed and delivered by such Party, these Terms will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms and conditions.

7.2 Acclivity represents and warrants that it shall perform all Services: (1) in a competent, expeditious and professional manner; and (2) in a manner that, at a minimum, meets the applicable standard of care of other similarly situated Persons who perform services similar to the Services.

7.3 Disclaimer of Warranty. ACCLIVITY DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ACCLIVITY WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT ACCLIVITY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY ACCLIVITY (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT. NEITHER ACCLIVITY NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL ACCLIVITY OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS. ACCLIVITY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. LIMITATION OF LIABILITY

8.1. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, A STATEMENT OF WORK OR EXHIBIT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THE AGREEMENT, A STATEMENT OF WORK OR EXHIBIT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.

9. TERM AND TERMINATION

9.1. These Terms are effective upon execution or upon delivery of the Services and/or Licenses.

9.2. Either Party may terminate these Terms effective immediately on written notice, if the other Party has committed a material breach of these Terms and has not cured the breach within thirty (30) days after receipt of written notice of the breach by the non-breaching Party, specifying the nature of the breach (or, if such default cannot be cured within thirty (30) days, if a Party does not begin curing the default within thirty (30) days after notice and diligently proceed in good faith to cure the default); provided, however, and notwithstanding anything herein to the contrary, Customer shall only have thirty (30) days to cure any non-payment breach if applicable.

9.3. Upon termination of the Agreement, a Acclivity shall immediately cease providing the Services and all usage rights granted under these Terms shall terminate.

9.4. Termination of these Terms shall not limit either party from pursuing any remedies available to it, including injunctive relief or, except for termination due to breach by Acclivity, relieve Customer of its obligation to pay all applicable fees accrued or which were payable through the completion of the then-current Term.

9.5. Upon termination of the Agreement, Acclivity may retain a copy of the Customer Data in accordance with these Terms.

10. GOVERNING LAW; JURISDICTION

10.1. These Terms shall be governed by and construed in accordance with the Law of the State of Florida without regard to the conflict of law principles of such state. Customer agrees to submit to the exclusive jurisdiction of the federal and state courts located in Duval County, Florida for any and all disputes arising in connection with these Terms.

11. FORCE MAJEURE

11.1. Neither Party shall be liable to the other for any delay or failure to perform its obligations under these Terms or any Statement of Work issued hereunder as a result of natural disasters, actions or decrees of governmental bodies, software, hardware, system or communication line failures not the fault of the affected Party, or any other delay or failure which arises from causes beyond a Party’s reasonable control; provided the non-performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans or other means (hereafter referred to as a “Force Majeure Event”).

12. INTERPRETATION OF DOCUMENTS

12.1. These Terms shall govern each Party’s respective obligations hereunder to the extent that these Terms do not conflict with the Agreement and the Exhibits. In the event these Terms conflict with the Agreement and the Exhibits (including any Statement of Work or Business Associate Agreement) the provisions of the Agreement and Exhibits shall prevail.

13. COMPLIANCE WITH LAWS

13.1. Acclivity and Customer shall comply with all applicable local, state, and national Laws in connection these Terms and Customer’s use of the Services, including those Laws related to data privacy and the transmission of technical or personal data. Business Associate. Acclivity may receive Protected Health Information, as defined in HIPAA, such that Acclivity is acting as a Business Associate of Customer. The Parties agree to and shall comply with the Business Associate terms and conditions, which is hereby made a part of these.

14. NOTICE

14.1. All notices, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) if delivered in person, when delivered, (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (iii) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, or (iv) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

15. ASSIGNMENT

15.1. Neither Party may assign any of its rights or delegate any of its duties pursuant to these Terms without the prior written consent of the other Party, and any attempted assignment without such consent shall be void; provided, however, that Acclivity may assign these Terms or any Statement of Work or Exhibit to (1) an entity acquiring all or substantially all of the assets of Acclivity; (2) or the successor in any merger involving Acclivity.

16. MISCELLANEOUS

16.1. It is the intention of the Parties that the provisions of these Terms will be enforceable to the fullest extent permissible under Law, and that the unenforceability of any provisions under such Laws will not render unenforceable, or impair, the remainder of the Agreement. If any provisions hereof are deemed invalid or unenforceable, either in whole or in part, these Terms will be deemed amended to delete or to modify, as necessary, the offending provisions and to alter the bounds thereof in order to render it valid and enforceable.

16.2. No waiver of any breach or failure by either Party to enforce any of the terms or conditions of these Terms at any time will, in any manner, limit or waive such Party’s right thereafter to enforce and to compel strict compliance with every term and condition hereof or to exercise any other rights and remedies available at law or in equity.

16.3. These Terms, including any the Agreement any Statements of Work, constitutes the entire Agreement between Customer and Acclivity with respect to the subject matter hereof and supersedes all proposals, oral or written, and all other communications between the Parties with respect to such subject matter. No modification of these Terms will have any force or effect unless such modification is in writing and signed by both Parties.

16.4. Each Party agrees that these Terms and any Statement of Work shall not benefit, or create any right or cause of action in or on behalf of, any Person other than the Parties.

16.5. These Terms shall apply to Services and Deliverable supplied by Acclivity to Customer from and including the date hereof.

16.6. The Exhibit and Section headings are for reference and convenience only and shall not be considered in the interpretation of these Terms.