This MyAdultDayCare Service Agreement shall be binding upon execution of an Order Form ("Effective Date").
1.1 Provision of Services. Upon Your agreement to pay the fees shown in the relevant Order Form, We grant You a limited, non-exclusive right to access and use Our Services, on the terms and conditions set forth herein for the duration of the subscription term set forth in the relevant Order Form. You agree that Your purchases hereunder are neither contingent upon the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding any future functionality or features.
1.2 Subscription. Subscriptions are purchased month to month or such longer term as specified in Your Order Form for the average number of Clients who are Active in the facility on a daily basis in Our Database on Your behalf ("Client Capacity"). “Active” refers to Clients who are marked as being in attendance on a given day. Additional subscriptions are available to store data uploaded to our servers, such as, but not limited to scanned versions of paper documents.
2.1.1 General Responsibilities. We shall: (i) provide Help Desk Support for the Services, (ii) use commercially reasonable efforts to make the online portion of the Services available 24 hours a day, 7 days a week and 365 days a year, except for: (a) scheduled downtime maintenance periods as stipulated in this Agreement's Downtime Maintenance Periods provision or (b) unavailability caused beyond Our reasonable control, including without limitation, acts of God, war, riots, labor disputes, government lockdown, internet service provider failures or delays or denial of service attacks or similar problems that are not within our reasonable control; and (iii) provide the Services in accordance with applicable laws and government regulations.
2.1.2 No Responsibility. We shall not: (i) be responsible for any compromise, loss, delay, alteration or interception of Your Data during the transmission of any data across computer networks or telecommunication facilities (including but not limited to the internet) that are not owned or operated by Us, or (ii) assume responsibility for the reliability or performance of any connections, computer networks or telecommunications facilities (including but not limited to the internet) that are not owned or operated by Us.
2.1.3 Downtime Maintenance Periods. We periodically add, repair, and upgrade the Data Center network, hardware and the Applications and shall use Our best efforts to accomplish this without affecting Your access to the Applications; however, repairs of an emergency or critical nature may result in the Services not being available for Your usage during the course of such repairs. In addition, We have established periodic system maintenance windows on Tuesday and Friday mornings between the hours of 2AM and 5AM (EST). During this time, We reserve the right to take down the server(s) at the Data Center hosting Your Data and Client Record Data in order to conduct routine maintenance to both software and hardware. We shall advise You 24 hours in advance via email or via the Services prior to any scheduled downtime. We reserve the right to change Our maintenance window upon prior notice to You provided the maintenance occurs between the hours of 2AM and 5AM (EST).
2.1.4 Our Protection of Your Client Record Data. We shall (i) maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your Client Record Data within Our Data Center, and (ii) ensure any third party audits obtained by MyAdultDayCare, indicate that protection and security of Your Client Record Data meets established industry standards for use of services comparable to the Service. You allow us to access and copy Your Client Record Data provided that the portions of Your Client Record Data to be copied by Us does not include resident identification information, and further provided that we do not provide Your Client Record Data to any third party in any format that would enable such third party to identify your facility (individually or collectively) as the basis for the information reported. Subject to such restriction, we may use or provide to third parties de-identified information that is based on Your Client Record Data. You agree We may use and further disclose Protected Health Information to provide You data aggregation services in accordance with 45 C.F.R. § 164.504(e)(2)(i)(B) of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and any amendments or implementing regulations (collectively, "HIPAA"). You agree that We may also de-identify Your Client Record Data in accordance with de-identifications standards set forth in 45 C.F.R. §§ 164.502(d) and 164.514(a)-(c) of HIPAA. A copy of Our HIPAA Business Associate Addendum, as incorporated into this Agreement, is attached herein as an Addendum.
2.1.5 Database and Applications Accessibility. The Data Center shall operate 24 hours a day, 7 days a week and 365 days per year, subject to scheduled maintenance or other downtime as described in this Agreement. You shall, subject to obtaining access to the internet, acquire access to the Database and acquire the ability to perform data processing with each Application, in accordance with the design of each Application, during not less than 99.6% of hours for each calendar year, excluding scheduled maintenance periods and the downtime periods as set out in this Agreement ("Uptime"). The downtime of a singular Application that has been affected by a bug or other virus that is not reasonably considered to be critical to resident care may, at Our sole discretion, be excluded from Our promised Uptime. Should We fall below Our stated Uptime, You have option to (i) send Us notice of termination, in accordance with Termination provisions herein, or (ii) send Us written notice of breach and grant Us a minimum of 30 days to cure said breach. If We fail to provide You a reasonable cure or workaround that is acceptable to You within Your stated cure period, You have the right to immediately terminate this Agreement.
2.1.6 Database Back-up. Storage media shall be used at the Data Center for daily back-up of Your Data and Client Record Data for Disaster Recovery purposes.
2.2.1 Compliance and Use. You shall (i) be solely responsible for Your Users' compliance with this Agreement, (ii) be solely responsible to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data stored by You, (iii) be solely responsible for the accuracy, quality and legality of Your Data and of the means by which you acquire Your Data, (iv) securely manage Users' identities and password combinations for access to the Services, (v) use commercially reasonable efforts to prevent password theft or loss or unauthorized access to or use of the Services, (vi) notify Us promptly of any such password theft or loss or unauthorized access or use, (vii) use the Services only in accordance with any documentation We may provide You and applicable local, state, provincial, federal and/or international laws and government regulations, (viii) accept all updates to the Services including all tools, utilities, improvements, or general updates to improve and enhance the features and performance of the Services, and (ix) be responsible for procuring and maintaining the network connections that connect Users and the network to the online portions of the Service including Secure Socket Layer (SSL) protocol or other protocols accepted by Us and to follow logon procedures or services that support such protocols.
2.2.2 No Delegation of Rights and Other Prohibited Actions. You shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, lease, timeshare or transfer the Services, (iii) use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following: (a) malicious code, illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful or harassing, offensive, inappropriate or objectionable information or communications or any kind, including, without limitation, conduct that would encourage or constitute an attack or “flaming” others or criminal or civil liability under any local, state, provincial, federal or foreign law, (b) content or data that would falsely represent your identity or qualifications or that constitutes a breach of any individual’s privacy, (c) advertise, solicit or make any other unsolicited communications and (d) disseminate any information, software or content which is not legally yours and may be protected by copyright or other proprietary rights or derivate works without permission from the copyright owner or intellectual property rights owner, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
2.2.3 Implementation. You are responsible for fulfilling Your obligations during implementation, as may be communicated by Us from time to time. In the case of onsite training, You are responsible for reimbursement of Our reasonable travel expenses, in addition to a charge of $500 per day of travel or $250 if Our total travel time falls below 4 hours. You shall incur the full cost of any cancelled training session if you do not provide 24 hours’ prior written notice of cancellation, including reimbursement of reasonable travel expenses.
2.2.4 No Access Conditions. You may not access the Services if You are Our direct competitor or an agent or consultant otherwise acting on behalf of Our direct competitor(s), except with Our prior written consent. In addition, you may not access the Services for the purpose of monitoring availability, performance or functionality, or for any other benchmarking or competitive purpose.
2.2.5 Usage Limitations. Services may be subject to limitations, such as, limits on disk storage space and access restrictions within specific geographic regions. A connection session is the continuous block of time from the time you log into the Services until the moment you disconnect. In the event that the connection is idle for 15 minutes (or such other period of time as we deem commercially reasonable), we will automatically disconnect the connection. If disconnected, you are free to re-connect immediately to establish a new session.
2.2.6 Data Import Services. Except as expressly provided by this Agreement or an exhibit hereto, You shall be responsible for entering all Your Data, including data from a different software system. You may elect to purchase any data import service(s) from Us for designated data sets, subject to Our then current pricing.
2.2.7 Upgrade Restriction. If, for any reason and at any time, You downgrade your Services from Standard to Basic, you are restricted from upgrading the Services back to Standard for a period of 1 year following the date of Your downgrade.
3.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
3.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
3.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.2 (Invoicing and Payment).
3.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.
3.5. Payment Disputes. We will not exercise Our rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
3.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
3.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
4.1 Term of the Agreement. This Agreement commences upon date of execution of the Order Form until all subscriptions granted in accordance with this Agreement have expired or until such time as a Party provides the other Party with written request of change or written notice of termination. Upon expiration or termination of this Agreement for any reason, You shall be entitled to a return of any prepaid fees for Services not yet rendered.
4.2 Term of Purchased Subscriptions. Subscriptions purchased by You commence on the Start Date and continue for successive 30 days terms, unless otherwise stated in Your Order Form. Services shall automatically renew for additional periods equal to the expiring Services term, unless either Party gives the other Party written notice of non-renewal or termination sufficiently in advance (i.e. for You, 30 days and for Us, 90 days) of the end of the relevant Services term, or unless otherwise stated in an Addendum to this Agreement or in Your Order Form. The pricing during any such renewal term shall be the same as that during the prior term, unless We have given You 90 days’ advance written notice of a price increase, in which case such price increase shall be effective upon expiration of such 90 days, unless otherwise agreed upon by You and Us in writing.
4.3 Termination for Cause. We or You may terminate this Agreement for cause (i) upon 30 days advanced written notice to the other Party of a material breach, if such breach remains uncured at the expiration of such notice period, or (ii) if 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. In the event that You terminate for cause, You shall be entitled to a return of any prepaid fees for Services and/or professional services not yet rendered.
4.4 Termination for Convenience by You. You may terminate this Agreement and Our provision of the Services to You upon 30 days advance written notice prior to the end of Your subscription term and addressed to billing@MyAdultDayCare.com with MyAdultDayCare's receipt of notice to be effective or, if receipt of notice is disputed, Your evidence of transmission to be effective, after which all Services shall terminate. You are entitled to a return of any prepaid fees for professional services not yet rendered.
4.5 Termination for Convenience by Us. We shall be entitled to terminate this Agreement and Our provision of the Services to You upon 90 days advance written notice to You, using the mailing address and billing contact information You provided in Your Order Form, after which period the Services previously provided to you shall terminate and We shall not have any liability for the cessation of such Services or your discontinued use of the Services. You shall be entitled to a return of any prepaid fees for Services and/or professional services not yet rendered.
4.6 Return of Your Data on Termination. Upon request by You made within 30 days after the effective date of termination by either party of Your subscription, We will make available to You for download a file of Your Client Record Data in comma separated value (.csv) format along with attachments in their native format. Upon expiration of such 30-day period, We have no obligation to maintain or provide You any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
5.1 Reservation of Rights in Services. Subject to the limited rights granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder, other than as expressly set forth herein.
5.2 Restrictions. You shall not (i) permit any third party to access the Services except as authorized herein, (ii) copy, duplicate, reproduce, frame or mirror any part of content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iii) de-construct or reverse engineer the Services, (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, or (v) attempt to use the Services, other than as specifically provided in any agreements between You and Us, in any other manner which would be detrimental to Our proprietary rights in the Services.
5.3 Your Data and Client Record Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. We will only retain Your Client Record Data as long as is necessary to fulfill the Services and/or comply with any applicable privacy or other laws which may require our temporary retention of Your Client Record Data beyond the provision of Services to You.
5.4 Location of the Services and Your Client Record Data. Unless otherwise specified, we will be using 3rd party Data Center and server providers to store Your data. Redundant, backup copies of data will be made with the aforementioned providers to aid in maintaining accessibility to customer data in case the primary source is offline. In such event, We shall continue to comply with all applicable American privacy laws in Our efforts to protect the privacy and integrity of Your Data. Notwithstanding the physical location of Your Client Record Data and the Services, Your Client Record Data is made accessible to you via the internet and You are required to take appropriate safety measures with respect to Your use of the internet.
5.5 Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
The terms in this schedule shall be deemed incorporated in the MyAdultDayCare Service Agreement between the You and Us arising upon Your acceptance of an Order Form.
1.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
1.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.
1.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
2.1. Warranty of Functionality. We warrant, subject to any other limiting or modifying terms in this Agreement, that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform in accordance with any documentation We may provide You, (iii) the Services and the Applications do not infringe or misappropriate the intellectual rights of any third party (iv) We are the owner of the Services and Applications and have procured the appropriate licenses so that You have the right to use Third Party Software, (v) to Our knowledge, there is no claim or proceeding, pending or threatened, alleging that any of Our software or equipment infringes or misappropriates the intellectual property rights of any third party, (vi) there is no outstanding litigation, arbitrated matter or other dispute to which We are a party which, if decided unfavorably to Us, would reasonably be expected to have a material adverse effect on either Party’s ability to fulfill its obligations under this Agreement, (vii) We will not cause and will use reasonable efforts to not permit any viruses or similar items to be coded or introduced into Our or Your operating systems, and (viii) the functionality of the Services will not be materially decreased during a subscription term. Your sole and exclusive remedy for Our breach of this warranty shall be that We are required to use commercially reasonable efforts to modify the Services to achieve, in all material respects, the functionality described in any documentation We may provide You and if We are unable to restore such functionality, You shall be entitled to terminate the Agreement as provided for herein. We shall have no obligation with respect to a warranty claim unless notified of such a claim within 60 days of the first instance of any material functionality problem.
2.2. Your Warranties. You warrant that: (i) You have validly entered into this Agreement and have the legal power to do so, and (ii) the execution, delivery and performance of this Agreement by You has been duly authorized by You and will not conflict with, result in a breach of or constitute a default under any other agreement to which You are a party or by which You are bound
2.3. Disclaimer of Warranties. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND OUR THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. WE AND OUR AFFILIATES AND SUPPLIERS WARRANT THAT THE SERVICES ARE DULY PROTECTED WITH 'UP TO DATE' AND COMMERCIALLY REASONABLE ANTI-VIRUS AND ANTI-INTRUSION SECURITY SOFTWARE TO PREVENT BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION FROM CORRUPTING OR DISRUPTING THE SERVICES. WE DO NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATA TRANSMITTED THROUGH THE SERVICES. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO THE EARLIER OF 90 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES. WE AND OUR AFFILIATES, LICENSORS AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO (I) HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, AND ANY AMENDMENTS OR IMPLEMENTING REGULATIONS (“HIPAA”, INCLUSIVE OF THE PRIVACY, SECURITY, BREACH NOTIFICATION, AND ENFORCEMENT RULES AT 45 C.F.R. PART 160 AND 164), AND THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (TITLE XIII OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009), AND ANY AMENDMENTS OR IMPLEMENTING REGULATIONS (“HITECH”), (II) THE GRAMM-LEACH-BULEY ACT OF 1999, (III) THE SARBANES-OXLEY ACT OF 2002, OR (IV) OTHER FEDERAL, PROVICIAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.
2.4. Your Compliance. You agree that You shall be solely responsible for ensuring compliance at all times with all state laws and rules and regulations relating to use of the Services and Your provision of health-care and medical services to Your residents. You agree that We have made no representations or warranties that use of the Services will ensure Your compliance with all applicable laws and rules and regulations, and that We do not warrant compliance with such laws, rules and regulations through use of the Services. You agree that You assume all risk associated with use of the Services, as it relates to the provision of health-care and medical services to Your residents and other applicable laws and rules and regulations. We do not represent that the Services are appropriate or available for use in all countries. We prohibit accessing materials from countries or states where contents are illegal. You are using the Services on your own initiative and you are responsible for compliance with all applicable laws.
2.5. Secure Communication Services. With regard to Your subscription, You fully understand and acknowledge that (i) Our Services are wireless services intended to deliver non-critical, non-emergency messages between Users; (ii) the Services are dependent upon a number of factors outside Our control, including but not limited to, the operation of third party provided hardware and network services; (iii) the Services are not a substitute for any medical facility’s current systems of administering and safeguarding medical treatment and/or medicine; (iv) there may be occasional communication failures or delays in the delivery or receipt of properly sent communications that are beyond Our control, and (v) Our Services are not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care environments; and You, in using the Service accept all risk (whether known or unknown) associated with the foregoing.
3.1. Indemnification by Us. We shall indemnify and defend You against any claim, liabilities, demand, suit, actions or proceeding made or brought against You by a third party alleging that the use of the Services, as permitted hereunder, infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any direct damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate the rights of any third party, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties stated herein, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 90 days' written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
3.2. Indemnity Exclusions. Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, (b) Your negligent acts or omissions (c) use of the Service after We notify You to discontinue use because of an infringement claim, or (d) modifications to the Service or use of the Service in combination with any software, application or service made or provided other than by Us.
3.3. Indemnification by You. You shall defend Us (and Our Affiliates, respective licensors, officers, directors, employees, agents and third parties or suppliers contracted by Us to deliver all of part of the Services, including but not limited to, parties retained by Us to provide services or products directly to You or indirectly through incorporation of their services or products in Our Services or products (Collectively "Us/Our/We" for purposes of this Section 3.3 and Section 4 only)) against any claim, demand, suit or proceeding made or brought against Us by a third party alleging, without limit to, personal injury, tort, medical malpractice or other acts errors or omissions in the delivery of medical care or medical information or that otherwise arises out of, or is in any way connected with Your Data, Your access to or use of the Services in breach of this Agreement or the intellectual property rights of any third party, Your negligent or wrongful act(s), and/or Your violation of relevant and/or applicable law (a "Claim Against Us"), and You shall indemnify Us from and against any and all losses, damages, expenses (including reasonable attorneys’ and expert fees) resulting therefrom, whether or not such Claims Against Us are foreseeable as at the effective date hereof, UNLESS SUCH CLAIMS RESULT FROM OUR GROSSLY NEGLIGENT ACTS OR OMISSIONS; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
3.4. Exclusive Remedy. This Section (Mutual Indemnities) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
4.1. Consequential Damages. YOU NOR US WILL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES UNDER THE AGREEMENT INCLUDE, ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO YOUR OR OUR PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
4.2. Exceptions. THE LIMITATIONS AND EXCLUSION OF LIABILITY SET FORTH IN SECTION 4.1 (CONSEQUENTIAL DAMAGES) DO NOT APPLY TO (A) INDEMNIFICATION OBLIGATIONS (B) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE, FRAUD OR WILLFUL OR CRIMINAL MISCONDUCT OF A PARTY, OR (C) DAMAGES OCCASIONED BY IMPROPER OR WRONGFUL TERMINATION OF THIS AGREEMENT OR ABANDONMENT OF ALL OR SUBSTANTIALLY ALL OF THE WORK REQUIRED TO PERFORM THE SERVICES.
6.1. To the Services. We may make modification to the Services or particular components of the Services from time to time and will use commercially reasonable efforts to notify you of any material modifications as soon as reasonable practicable. We will not be liable to You or any third party for any modification or discontinuance of part or all of the Services.
7.1. Who You Are Contracting With. You are contracting with MyAdultDayCare, LLC., a privately held business incorporated under the laws of the State of New Jersey, having its principal headquarters at 141 South Avenue, Suite 201, Fanwood, NJ 07023.
7.2. Governing Law and Jurisdiction. This Agreement shall be governed by the State of New Jersey and the federal laws of the United States of America without regard to its conflicts of laws provisions. To resolve any legal dispute arising from this Agreement, You agree to the exclusive jurisdiction of the State of New Jersey.
7.3. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notice of an indemnifiable claim). Notices to You shall be addressed to the relevant contact designated by You.
8.1. Export Compliance. You acknowledge that the Services are subject to restrictions and controls enacted under the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that You will comply with all applicable laws and regulations. You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation of U.S. export administration laws and regulations to any country or end user; or to any User who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that these Services may include technical data subject to U.S. export regulations.
8.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
8.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
8.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
8.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
8.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
8.7. Surviving provisions of Legal Terms. Section 1 (Confidentiality), Section 2.3 (Disclaimer of Warranties), Section 3 (Mutual Indemnification}, Section 4 (Limitation of Liability), Section 7 (Who You are contracting with, Notices, Governing Law and Jurisdiction) and Section 8 (General Provisions) shall survive any termination or expiration of this Agreement.
8.8. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges or damages due Us under this Agreement.
8.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
8.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms in this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
8.11. Fax. This Agreement may be executed and transmitted by facsimile or other means of electronic communication (including pdf), which signatures thereon shall be binding upon the parties as if they were original signatures.
8.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
"Active Client Record" means an individual's or individuals' health information record stored in digital format at Our Data Center and representing historical and newly generated health information of one Client.
"Affiliate" means as to any person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" of a person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Application(s)" means the software component of our Services that applies the power of a computer, mobile device, tablet, or any other electronic device to perform specific tasks that benefit its Users.
"Additional Applications or Additional Application Bundles" means the Applications available for purchase that are in addition to your Core Application Bundle. Additional Applications may be purchased à la carte' or as bundled packages.
"Core Application Bundle" means the Applications used to manage data relevant to Active Client Records, attendance, facilities, employees.
"Database" means the organized collection of Your Data and Client Record Data in a format that supports the exchange of information required for Our Applications to perform specific tasks for its Users.
"Data Center" means the facilities that are operated by Us and are used to house computer systems, telecommunications, data storage systems and associated components, including backup power supplies, backup data communications connections, environmental controls (e.g., air conditioning, fire suppression) and security devices.
"Disaster Recovery" means Our policies and procedures, for business continuity in the event of a disaster that disrupts all or part of Our business' resources, including IT equipment and data records.
"Effective Date" means the date You have signed and executed Your Order Form/ MyAdultDayCare Service Agreement
"Non-Active Client Record" means an individual health information record stored in digital format at Our Data Center and representing historical health information of a singular resident that has been either (i) discharged or (ii) added to a Client care waiting list.
"Order Form" means the document used to place Service orders, of which Your signature thereto indicates Your acceptance of the MyAdultDayCare Service Agreement. Order Forms shall be deemed incorporated herein by reference.
"Orientation Fee" means a fee to cover the cost of Your registration to the Service.
“Client Record Data” means a subset of Your Data submitted by You electronically to the online portion of the Services that is physically stored in Data Centers on computers owned or controlled by Us, and which consists of the electronic health records of Your residents and information that would be considered protected health information. We protect Client Record Data in accordance with Our defined security protocols, any relevant terms set out in this Agreement, and Our HIPPA Business Associate Addendum signed with You.
"Party" means We or You.
"Parties" means We and You.
"Service(s)" means Our services that are ordered by You under an Order Form and made available by Us online via Our Applications or otherwise as a professional service to You.
"Start Date" means the date We begin charging You for the Services. For multi-facility customers, the Start Date can be the same across various facilities, or separate Order Forms each with individual Start Dates can be executed on a per-facility basis. This arrangement will be agreed upon by both Parties prior to execution of any Order Form.
"Uptime" means the period of time our Services are available, measured at the network edge of the Our Data Center and when You are able to connect, login to and access the Services.
"Users" means individuals who are authorized by You to use the Services and who have been supplied user identifications and passwords by You. Users may include but not be limited to Your employees, consultants, contractors and agents retained by You.
"We", "Us" or "Our" means MyAdultDayCare, LLC., or otherwise stated in Section 3.3 and Section 4 of the Legal Terms herein.
"You" or "Your" means the facility, company or other legal entity for which You are acting on behalf and for which is intended to be bound to this Agreement.
"Your Data" means all electronic data or information belonging to or created by You, including Client Record Data, text, messages or other materials uploaded, posted, or stored through Your use of the Services.
THIS HIPAA BUSINESS ASSOCIATE ADDENDUM (the “Addendum”) is entered into on the Effective Date of Your corresponding Order Form ("Effective Date") by and between Us ("Business Associate") and You, on behalf of Yourself and Your affiliates, if any (individually and collectively, the “Covered Entity”), and adds to any current or future agreement(s) for services entered into between Business Associate and Covered Entity which involve the creation, use, receipt, or disclosure of PHI (hereinafter referred to as the "Agreement" for purposes of this Addendum only). Pursuant to the Agreement, Business Associate performs functions or activities on behalf of Covered Entity involving the use and/or disclosure of protected health information ("PHI") received from, or created or received by, Business Associate on behalf of Covered Entity. Therefore, Business Associate agrees to the following terms and conditions set forth in this Addendum.
For purposes of this Addendum, the terms used herein, whether or not capitalized, unless otherwise specifically defined, shall have the same meanings as used in the Health Insurance Portability and Accountability Act of 1996, and any amendments or implementing regulations (“HIPAA”, inclusive of the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and 164), and the Health Information Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009), and any amendments or implementing regulations (“HITECH”). A reference in this Addendum to any provision of a law or regulation means the provision as then in effect, amended, or implemented via regulation.
The parties acknowledge and agree that Business Associate shall comply with its obligations under this Addendum and with all obligations of a business associate under HIPAA, HITECH, and other related laws and regulations, as they exist at the time this Addendum is executed and as they are amended, for so long as this Addendum is in place. Pursuant to HITECH §§ 13401(a) and 13404(a) and the HIPAA implementing regulations, the provisions of HITECH that impose requirements and standards on covered entities with respect to security and privacy shall also be applicable to Business Associate, and shall be and by this reference hereby are incorporated into this Addendum. All other provisions of HITECH that are applicable to Business Associate, and its relationship with Covered Entity under this Addendum and the Agreement, shall be and by this reference hereby are incorporated into this Addendum.
Business Associate shall not use or disclose PHI in any manner that is not permitted or required by the Agreement, this Addendum, or by law. Business Associate may also not use or disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 of HIPAA if done by Covered Entity, except, Business Associate may use or disclose PHI for Business Associate's own management and administration and legal responsibilities or for data aggregation services.
Business Associate may only use and disclose PHI as permitted or required by the Agreement, this Addendum, or by law.
Business Associate may also use and disclose PHI: (i) for its own proper management and administration; and/or (ii) to carry out its legal responsibilities. If Business Associate discloses PHI to a third party for either above reason, unless such disclosure is required by law, prior to making any such disclosure, Business Associate must obtain: (a) reasonable written assurances from the receiving party that such PHI will be held and remain confidential and be used and further disclosed only as required by law or for the purposes for which it was disclosed to such receiving party; and (b) an agreement from such receiving party to immediately notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been compromised.
Business Associate may also use and further disclose PHI to provide data aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
Business Associate may also use PHI to de-identify the PHI in accordance with 45 C.F.R. §§ 164.502(d) and 164.514(a)-(c).
All uses and disclosures of, and requests by, Business Associate, for PHI are subject to the minimum necessary rule of the HIPAA Privacy Rules.
Business Associate agrees that it will implement appropriate safeguards in accordance with the HIPAA Privacy and Security Rules to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of this Addendum. In doing so, without limitation, Business Associate shall comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI.
Business Associate shall promptly report to Covered Entity any security incident, or any use or disclosure of PHI which is not provided for in this Addendum or is otherwise a violation of HIPAA, of which it becomes aware. This provision applies regardless of whether such unauthorized use or disclosure was by Business Associate, its officers, directors, employees, agents, subcontractors, or by any third party. For purposes of this Addendum, a "security incident" shall not include a request-response utility used to determine whether a specific Internet Protocol [IP] address, or host, exists or is accessible (i.e., a "ping").
Business Associate shall promptly report to Covered Entity a Breach of Unsecured PHI, in accordance with 45 C.F.R. §§ 164.400-414.
Business Associate agrees to mitigate, to the extent practicable, any harmful effect of an unauthorized use or disclosure of PHI by Business Associate in violation of the requirements of this Addendum or HIPAA.
Business Associate shall enter into a written agreement with any agent or subcontractor of Business Associate that will have access to PHI, or who will create, receive, maintain, or transmit PHI on behalf of Business Associate. Pursuant to such written agreement and 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), the agent or subcontractor shall agree to be bound by the same restrictions, terms, conditions, and requirements that apply to Business Associate under this Addendum with respect to such PHI.
Promptly upon a request by Covered Entity, Business Associate shall make available PHI maintained by Business Associate in a Designated Record Set, to Covered Entity, or to the individual requestor, if directed by Covered Entity, as necessary to satisfy Covered Entity's obligations under 45 C.F.R. § 164.524. In the event any individual delivers directly to Business Associate a request for access to PHI, Business Associate shall promptly forward such request to Covered Entity. Unless otherwise required by law, the term "Designated Record Set," for the purposes of this Addendum, shall not include any information in the possession of Business Associate that is the same as information in the possession of Covered Entity (information shall be considered the same information even if the information is held in a different format, medium or presentation or it has been standardized).
Promptly upon the receipt of a request from Covered Entity, Business Associate shall make any amendment(s)to PHI maintained by Business Associate in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity's obligations under 45 C.F.R. § 164.526. In the event any individual delivers directly to Business Associate a request for amendment to PHI, Business Associate shall promptly forward such request to Covered Entity for further direction.
Pursuant to HIPAA, in the event that Business Associate maintains PHI in a Designated Record Set, the parties agree that Covered Entity will have the responsibility to handle, track and maintain records of all requests by individuals to access or amend such PHI. Business Associate, as a business associate of Covered Entity, will not have any responsibility to handle, track and maintain records of any such requests except as set forth above or in the Agreement.
Business Associate shall maintain, and make available promptly upon a request by Covered Entity, the information required to provide an accounting of disclosures, to Covered Entity, as necessary to satisfy Covered Entity's obligations under 45 C.F.R. § 164.528. In the event the request for an accounting is delivered directly to Business Associate, Business Associate shall promptly forward such request to Covered Entity. Unless otherwise required by changed HIPAA regulations or the Agreement, in response to a request from an individual for an accounting of disclosures from an electronic health record maintained or hosted by Business Associate, 14 Covered Entity shall provide the individual with an accounting of disclosures in accordance with HITECH § 13405(c)(3)(A). Unless otherwise required by changed HIPAA regulations or the Agreement, with respect to Business Associate, Covered Entity may not elect to provide an individual with Business Associate's name and contact information under HITECH § 13405(c)(3)(B).
To the extent that Business Associate is required by this Addendum or the Agreement to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s).
Business Associate hereby agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining compliance with HIPAA.
The Term of this Addendum shall be effective as of the effective date of the underlying Agreement(s), and shall terminate on the termination or expiration of the last of the underlying Agreement(s), or on the date Covered Entity terminates this Addendum as authorized below, whichever is sooner. Covered Entity may: (i) immediately terminate this Addendum if Covered Entity reasonably determines that Business Associate has violated a material term of HIPAA or this Addendum; or (ii) at Covered Entity's option, Covered Entity may permit Business Associate to cure or end any such violation within the reasonable period of time specified by Covered Entity.
Upon the termination or expiration of this Addendum for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall do the following:
(a) Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities or for which it is not feasible for Business Associate to return or destroy, unless said information has been de-identified and thus is no longer PHI. The parties agree that the return or destruction of PHI received from, or created or received by Business Associate on behalf of, the Covered Entity in any format other than that in which Business Associate originally received such PHI, including pooled or aggregated data, is not feasible and that such PHI must be retained by Business Associate to defend its work product and for future audits (and for other reasons which make returning the same infeasible);
(b) Return to Covered Entity, or, if agreed to by Covered Entity, destroy, other remaining PHI that the Business Associate still maintains in any form, recorded on any medium, or stored in any storage system;
(c) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
(d) Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set forth in this Addendum which applied prior to termination; and
(e) Return to Covered Entity, or, if agreed to by Covered Entity, destroy, the PHI retained by Business Associate when it is feasible to do so and the PHI is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities. Business Associate shall remain bound by the provisions of this Addendum, which shall survive even after termination or expiration of the Agreement or Addendum.
(a) Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 C.F.R.§ 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of PHI.
(b) Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate's use or disclosure of PHI.
(c) Covered Entity shall notify Business Associate of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 C.F.R.§ 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI.
(d) Covered Entity shall not request for Business Associate to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except that Business Associate may use or disclose PHI for data aggregation or management and administration and legal responsibilities of Business Associate.
The terms of this Addendum do not grant any rights to any parties other than Business Associate and Covered Entity.
For the purposed of this Addendum, Business Associate is an independent contractor of Covered Entity, and shall not be considered an agent of Covered Entity.
The parties agree that, with no further action required by the parties, this Addendum shall be deemed automatically amended to include and incorporate amendments or revisions to HIPAA and/or HITECH, so that the parties remain in compliance with such amendments or revisions. All references to regulations or provisions of HIPAA and/or HITECH herein shall be deemed to also refer to any amendment or revision thereto and/or to any successor regulation. If, as a result of any amendments or revisions to HIPAA and/or HITECH, both parties determine that modifications to the terms of this Addendum: (i) may not be deemed to be automatically incorporated into this Addendum; and (ii) are strictly required by HIPAA or HITECH to be reduced to writing; the parties agree to take such action as is necessary to enter into a mutually acceptable amendment to this Addendum that addresses solely the legal changes that are required to be reduced to writing. The parties agree that this Addendum may only be modified by mutual written amendment, signed by both parties, effective on the date set forth in the amendment. Neither party has the right to unilaterally amend or alter the provisions of this Addendum.
Any ambiguity in this Addendum shall be interpreted to permit compliance with HIPAA and HITECH. If there is any direct conflict between the Agreement and this Addendum, the terms and conditions of this Addendum shall control.