MMI STANDARD EDI TERMS AND CONDITIONS
These MMI Standard EDI Terms and Conditions (these “Terms and Conditions”) form a part of the Modernizing Medicine, Inc. EDI Order Form (the “Order Form” and together with these Terms and Conditions, this “Agreement”) between Modernizing Medicine, Inc., a Delaware corporation with offices located at 4850 T-Rex Ave., Suite 200, Boca Raton, Florida 33431 (“MMI”, “Modernizing Medicine” or the “Company”), and the laboratory set forth on the Order Form (“Lab”). MMI and Lab may be referred to herein each individually as a “Party” and together as the “Parties”. These Terms and Conditions were last updated on April 2, 2021.
1. Definitions. As used in this Agreement:
1.1 “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person now or in the future for so long as such control exists. For purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through ownership of voting securities or by contract or otherwise, and the terms “controlling” and “controlled by” have correlative meanings to the foregoing.
1.2 “Confidential Information” means all information about the disclosing Party furnished by the disclosing Party to the receiving Party, that is designated as “Confidential” or “Proprietary” (x) by stamp or legend if communicated in writing or other tangible form or (y) otherwise orally at the time of disclosure with a written confirmation within twenty (20) days describing the Confidential Information communicated orally. MMI’s Confidential Information also includes the technology, software, hardware, products, processes, algorithms, user interfaces, website content, visual interfaces, interactive features, graphics, compilations, website elements, documentation, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information made available by MMI to Lab. “Confidential Information” excludes the information explicitly excluded under Section 5.2 as well as Protected Health Information as that term is defined in HIPAA.
1.3 “Covered Product Suite” means each of MMI’s specialty specific product suites (e.g., ModMed Dermatology, ModMed Plastic Surgery, etc.); provided, that MMI may elect to exclude any specialty specific product suite (other than ModMed Dermatology) from the definition of Covered Product Suite by providing written notice of such election to Lab.
1.4 “Effective Date” means the date that MMI executes the Order Form.
1.5 “EMA” means MMI’s proprietary web-based electronic health record software marketed under the name “EMA” but only with respect to the versions of EMA offered as part of a Covered Product Suite. Notwithstanding the foregoing, the definition of “EMA” does not include any white-labeled versions of EMA unless MMI provides written notice to Lab that MMI has elected to include such white-labeled version of EMA in the definition of EMA for purposes of this Agreement.
1.6 “EMA Instance” means each URL assigned by MMI to a Lab Client with respect to such Lab Client’s instance of EMA. For the avoidance of doubt, multiple URLs may be assigned by MMI to a Lab Client and each such unique URL shall be deemed a separate EMA Instance.
1.7 “Enhanced Functionality” means the Enhanced Orders Interface Functionality and the Enhanced Results Interface Functionality.
1.8 “Enhanced Interface Effective Date” means the first to occur of (a) such date that a Lab Client has included Enhanced Orders Interface Information in an order requisition form offered within EMA, (b) such date that Lab has indicated to a Lab Client the suggested Diagnosis Code applicable to a Result or (c) when MMI and Lab otherwise agree that the Enhanced Interface Effective Date has occurred.
1.9 “Enhanced Orders Interface Functionality” refers to the ability of Lab Clients to include Enhanced Orders Interface Information in a pathology Order requisition form offered within EMA.
1.10 ”Enhanced Orders Interface Information” means any of the following information: (i) history of present illness, (ii) family history of melanoma if present, (iii) previous history of melanoma with melanoma staging if applicable, (iv) a Continuity of Care Document (CCD), and (v) digital photographic images.
1.11 “Enhanced Results Interface Functionality” refers to the provision by MMI to Lab of a list of abbreviations for certain diagnoses used within EMA’s pathology lab result entry system (each, a “Diagnosis Code”), such that Lab may indicate to a Lab Client the suggested Diagnosis Code applicable to a Result.
1.12 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations, as each may be amended from time to time.
1.13 “Intellectual Property Rights” means all intellectual property rights throughout the world, including but not limited to patents, copyrights, trade secret rights and other rights in confidential and proprietary information, trademarks, trade names, logos and trade dress, “moral rights,” mask works, rights of personality, publicity or privacy, and any other intellectual property and proprietary rights, including without limitation all registrations and applications with respect to any of the foregoing.
1.14 “Interface” means an interface between EMA and the Lab’s systems to permit certain customers of MMI to receive Results from the Lab through EMA and to transmit Orders through EMA to the Lab.
1.15 “Lab Client” means any individual or entity (i) for which Lab provides any services and (ii) which has licensed, or subscribed to, EMA.
1.16 “Orders” means orders of pathology laboratory tests.
1.17 “Pathology Orders Message” mean each message transmitted from EMA ordering a patient’s pathology laboratory test(s).
1.18 “Pathology Results Message” means each message received by EMA containing the result(s) of a patient’s pathology laboratory test(s).
1.19 “Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization.
1.20 “Representative” means MMI’s Affiliates and MMI’s and its Affiliates’ respective employees, directors, officers, advisors, agents, vendors, any Person that provides any products or services that relate to the Services or any other products or services offered by MMI or any of its Affiliates, service providers, consultants and contractors.
1.21 “Results” means results of pathology laboratory tests.
1.22 “Services” means the Results Service (as defined below) and the Orders Service (as defined below).
1.23 “Transaction Documents” means this Agreement (including the Order Form and these Terms and Conditions) and any Statement of Work.
1.24 “URL” means Uniform Resource Locator, internet address.
2. Results Delivery; Order Transmission
2.1 General—Results Delivery. Subject to the terms and conditions of this Agreement, if the Order Form provides for a “Results Interface” then MMI and Lab shall use commercially reasonable efforts to establish an Interface between EMA and the Lab’s systems (the “Lab System”) (which may, at MMI’s discretion, include interfaces with certain third party systems) to permit the delivery of Results from Lab through EMA to the Lab Clients approved by MMI to receive Results from Lab through EMA (the “Results Service”). Lab shall provide the Results in such formats as MMI shall reasonably request and shall follow such protocols as MMI shall reasonably request in connection with the delivery of the Results to MMI and the appropriate Lab Client. Lab shall provide such assistance, information, specifications and access to its systems (the “Lab System”) as is reasonably requested by MMI to provide the Results Service. Lab acknowledges and agrees that Lab shall not transmit, directly or indirectly, Results for more than one patient, more than one visit or with more than one accession number, in any message sent through EMA to any Lab Client. For the avoidance of doubt, each Party will be responsible for the development, testing, set up, support and operation of its own software at its side of the Interfaces.
2.2 Enhanced Results Interface Functionality. Subject to the terms and conditions of this Agreement, if the Order Form provides for the provision of “Enhanced Results Interface Functionality” then MMI shall use commercially reasonable efforts to make the Enhanced Results Interface Functionality available for use by Lab in connection with the Results Service. For the avoidance of doubt, “Standard” Interface functionality does not include Enhanced Results Interface Functionality.
2.3 General—Orders Transmission. Subject to the terms and conditions of this Agreement, if the Order Form provides for an “Orders Interface” then MMI and Lab shall use commercially reasonable efforts to establish an Interface between EMA and the Lab System (which may, at MMI’s discretion, include interfaces with certain third party systems) to permit the Lab Clients approved by MMI to order pathology laboratory tests from Lab through EMA (the “Orders Service”). Lab shall receive the Orders in such formats as MMI shall specify and Lab shall follow such protocols as MMI shall reasonably request in connection with its receipt of the Orders from the Lab Clients. Lab shall provide such assistance, information, specifications and access to the Lab System as is reasonably requested by MMI to provide the Orders Service. For the avoidance of doubt, each Party will be responsible for the development, testing, set up, support and operation of its own software at its side of the Interfaces.
2.4 Enhanced Orders Interface Functionality. Subject to the terms and conditions of this Agreement, if the Order Form provides for the provision of “Enhanced Orders Interface Functionality” then MMI shall use commercially reasonable efforts to make the Enhanced Orders Interface Functionality available for use by Lab Clients in connection with the Orders Service. For the avoidance of doubt, “Standard” Interface functionality does not include Enhanced Orders Interface Functionality.
2.5 Hardware. Lab is solely responsible for acquiring, installing and maintaining computer hardware that is adequate to support Lab’s use of the Interfaces and the Services. MMI will not provide maintenance for any of Lab’s hardware. Lab expressly acknowledges that MMI is not responsible for the safeguard, loss, or recovery of any data stored on Lab’s hardware.
2.6 Lab Clients. If MMI opts, in its sole discretion, to terminate any or all Lab Clients’ rights to use the Results Service and/or the Orders Service then Lab shall cooperate with MMI to effect such terminations. MMI may impose such restrictions on Lab Clients’ use of the Services as MMI may deem appropriate. Lab will not separately charge Lab Clients for any fees or costs associated with any of the Services that are identified with MMI. Lab will not represent to any Lab Clients that MMI will reimburse any Lab Clients for any fees or costs with respect to the use of any of the Services.
2.7 Service Guidelines. Except as specifically authorized in writing by MMI, Lab shall not allow third parties to access or use any Interface or the Services. Lab shall use the Results Service solely to transmit results of pathology laboratory tests through EMA to the appropriate Lab Client. Lab shall use the Orders Service solely to receive orders of pathology laboratory tests from Lab Clients through EMA. Lab shall not use the Service to: (i) send spam or any other form of duplicative or unsolicited communications; (ii) violate any law, rule or regulation; (iii) transmit through or post on EMA or MMI’s website(s) unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iv) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) interfere with or disrupt the integrity or performance of EMA or the data contained therein; (vi) attempt to gain unauthorized access to EMA or computer systems or networks used to host or provide access to EMA; or (vii) harass or interfere with another user’s use and enjoyment of EMA or the other products and services provided by MMI. In addition to any other remedies MMI may have, MMI reserves the right to terminate any of the Transaction Documents immediately and without notice, if MMI becomes aware or determines that Lab is violating any of the foregoing guidelines.
2.8 Proprietary Rights. MMI retains all right, title, and interest in and to (i) EMA and all Intellectual Property Rights therein and (ii) the Interfaces and all Intellectual Property Rights therein, and nothing in this Agreement transfers or licenses any rights in or ownership of EMA, the Interfaces or other Intellectual Property Rights of MMI to Lab. No license or other rights in any of MMI’s Intellectual Property Rights are granted to Lab, and all such rights are hereby expressly reserved by MMI. Lab shall not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or discern the structure of EMA. If any intellectual property or technology of Lab is included in or is necessary to operate any Interface, Lab hereby grants to MMI a non-exclusive, perpetual, irrevocable, sublicenseable through multiple tiers of sublicensees, worldwide, fully-paid, royalty-free license to use, copy, distribute and create derivative works of such intellectual property or technology for the purpose of providing the Services.
2.9 Performance. Lab shall cooperate with MMI to determine where any performance problems originate and shall use commercially reasonable efforts to rectify such problems. Each Party shall bear its own costs relating to problem origin determination and resolution. Lab acknowledges and agrees that MMI may engage subcontractors to perform its obligations under the Transaction Documents.
2.10 Lab Responsibilities. Lab will provide qualified personnel who are capable of performing Lab’s duties and tasks under this Agreement and such other duties and tasks as may be reasonably required to permit MMI to perform the Services. Lab will make available to MMI any data or other information reasonably required by MMI to perform the Services. Upon or promptly after the Effective Date, Lab shall provide MMI with such information as MMI may reasonably request in connection with the establishment of any Interface. During the Term, Lab may not make a modification at its side of the Interface that requires a change in MMI’s side of the Interface or another aspect of the Services without MMI’s prior written consent.
2.11 Reference to Lab. MMI shall have complete control with respect to any language (including its placement and content) within EMA relating to Lab, any Interfaces and the Services. MMI may include Lab in its listings of laboratory service providers available through EMA in its business and promotional materials and on its website. Lab hereby grants to MMI during the Term a non-exclusive royalty-free, worldwide license and right to use Lab’s logos, product and service names and trademarks to the extent reasonably necessary for MMI to promote and provide the Services and otherwise to perform its obligations under this Agreement.
2.12 Support. MMI shall provide telephone help desk support to Lab during MMI’s normal business hours (8:00 a.m. to 8:00 p.m., Eastern time, during business days) for issues relating to the Services.
3. Fees.
3.1 General. Lab agrees to pay MMI all fees set forth on the Order Form or otherwise specified in the Transaction Documents (the “Fees”) in accordance with the terms of the Transaction Documents.
3.2 Per EMA Instance Annual Fee. If the Order Form includes an “Annual Fee” then Lab shall pay MMI the Annual Fee specified on the Order Form (the “Per EMA Instance Annual Fee”) per EMA Instance assigned by MMI to a Lab Client approved by MMI to receive Results and/or submit Orders through EMA. The Per EMA Instance Annual Fee (i) shall be payable in advance upon the Effective Date with respect to each EMA Instance assigned by MMI to a Lab Client as of such date (pro rated to take into account the number of days remaining in the calendar year in which the Effective Date falls) and the Per EMA Instance Annual Fee shall be payable on January 1st of each subsequent calendar year with respect to such EMA Instances that remain assigned to Lab Clients on January 1st of such year and (ii) shall be payable in advance immediately upon any EMA Instances being assigned to any Lab Clients (including, without limitation, additional EMA Instances assigned to previously existing Lab Clients and EMA Instances assigned to new Lab Clients) after the Effective Date (pro rated to take into account the number of days remaining in the applicable calendar year) and the Per EMA Instance Annual Fee shall be payable on January 1st of each subsequent calendar year with respect to such EMA Instances that remain assigned to Lab Clients on January 1st of such year .
3.3 Establishment Fee. Unless otherwise specified in the Order Form, if the Order Form includes an establishment fee, then such fee shall be paid by Lab to MMI on the Effective Date.
3.4 Standard Per Transaction Fee.
3.4.1 Prior to the Enhanced Interface Effective Date, Lab shall pay MMI the “Standard Per Transaction Fee” specified on the Order Form per Pathology Results Message received by any Lab Client from Lab through EMA (the “Standard Per Results Fee”).
3.4.2 Notwithstanding the foregoing, prior to the Enhanced Interface Effective Date, MMI may at any time elect (each, a “Standard Orders Election”) that Lab shall pay MMI the Standard Per Transaction Fee specified on the Order Form per Pathology Orders Message transmitted by any Lab Client to Lab from EMA (the “Standard Per Order Fee”) as opposed to per Pathology Results Message received by any Lab Client from Lab through EMA. For the avoidance of doubt, MMI may elect to revert back to charging the Standard Per Results Fee and make further Standard Orders Elections after such reversions at its discretion.
3.5 Enhanced Per Transaction Fee.
3.5.1 On and after the Enhanced Interface Effective Date (if any), Lab shall pay MMI the “Enhanced Per Transaction Fee” specified on the Order Form per Pathology Results Message received by any Lab Client from Lab through EMA (the “Enhanced Per Results Fee”).
3.5.2 Notwithstanding the foregoing, on and after the Enhanced Interface Effective Date (if any), MMI may at any time elect (each, an “Enhanced Orders Election”) that Lab shall pay MMI the Enhanced Per Transaction Fee specified on the Order Form per Pathology Orders Message transmitted by any Lab Client to Lab from EMA (the “Enhanced Per Order Fee”) as opposed to per Pathology Results Message received by any Lab Client from Lab through EMA. For the avoidance of doubt, MMI may elect to revert back to charging the Enhanced Per Results Fee and make further Enhanced Orders Elections after such reversions at its discretion.
3.6 Invoices. Unless otherwise specified in the Order Form, MMI will invoice Lab for the applicable Fees. Unless otherwise specified in the Order Form, such invoices shall be paid within thirty (30) days of the date of such invoice. If Lab fails to make such payment within such thirty (30) day period, Lab shall be deemed in material breach of this Agreement. In such case, MMI reserves the right to suspend the Services upon written notice to Lab until such amounts are paid in full or to terminate this Agreement pursuant to Section 8.3.
3.7 Overdue Payments. Any payment owed by Lab to MMI hereunder and not paid to MMI when due (an “Overdue Payment”) may accrue, at MMI’s discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.8 Changes to Fees. Without limiting any provisions of the Transaction Documents, MMI may change the Fees and discounts set forth in the Transaction Documents by providing at least thirty (30) days prior written notice (the “Notice Period”) of such change to Lab. Any such change shall take effect at the beginning of the next Renewal Term after the expiration of the Notice Period.
3.9 Currency. All amounts set forth in the Transaction Documents are denominated and shall be paid in U.S. dollars.
3.10 Taxes. All amounts payable by Lab to MMI pursuant to the Transaction Documents (including, without limitation, pursuant to any Statement of Work) are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to MMI are payable in full without reduction for Taxes. Lab is responsible for payment of all Taxes, excluding taxes owed by MMI based on MMI’s net income. If MMI has the legal obligation to pay or collect Taxes for which Lab is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Lab, unless Lab provides MMI with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.11 Deposits. All deposits are non-refundable under any circumstances.
4. SOW Services.
4.1 Statements of Work. From time to time, the Parties may execute statements of work that describe the specific services to be performed by MMI, including any work product to be delivered by MMI (as executed by the Parties, a “Statement of Work”). Each Statement of Work will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein.
4.2 Performance of Services. MMI will perform the services specified in each Statement of Work (the “SOW Services”) in accordance with the terms and conditions of this Agreement and of each applicable Statement of Work. For purposes of this Agreement, the establishment of any Interfaces by MMI and the provision of any Enhanced Functionality by MMI shall be deemed SOW Services hereunder.
4.3 Changes to Statement of Work. Lab may submit to MMI written requests to change the scope of SOW Services (each such request, a “Change Order Request”). MMI may approve or reject such Change Order Requests in its sole discretion. If MMI approves a Change Order Request, then MMI will promptly notify Lab if it believes that such Change Order Request requires an adjustment to the SOW Fees (as defined below) or to the schedule for the performance of the SOW Services. In such event, the Parties will negotiate in good faith a reasonable and equitable adjustment to the SOW Fees and/or schedule, as applicable. MMI will continue to perform SOW Services pursuant to the existing Statement of Work and will have no obligation to perform any Change Order Request unless and until the Parties have agreed in writing to such an equitable adjustment to the SOW Fees and/or schedule, as applicable.
4.4 Lab Responsibilities. In connection with the SOW Services, Lab will: (i) provide qualified personnel who are capable of performing Lab’s duties and tasks with respect to applicable SOW Services; (ii) provide MMI with access to Lab’s sites and facilities during Lab’s normal business hours and as otherwise reasonably required by MMI to perform the SOW Services; (iii) provide MMI with such working space and office support (including access to telephones, photocopying equipment, and the like) as MMI may reasonably request; and (iv) perform Lab’s duties and tasks under this Agreement, including under any Statement of Work, and such other duties and tasks as may be reasonably required to permit MMI to perform the SOW Services. Lab will also make available to MMI any data, information and any other materials required by MMI to perform the SOW Services, including, but not limited to, any data, information or materials specifically identified in this Agreement (collectively, “Lab Materials”). Lab will be responsible for ensuring that all such Lab Materials are accurate and complete.
4.5 SOW Fees and Expenses. For MMI’s performance of the SOW Services, Lab will pay MMI the fees calculated in accordance with the terms set forth in this Agreement, including, any applicable Statement of Work (the “SOW Fees”). In addition, Lab will reimburse MMI for any expenses specified in a Statement of Work.
4.6 Ownership. MMI will exclusively own all rights, title and interest in and to any software programs, software tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, training manuals, techniques and materials of any kind used or developed by MMI or its personnel in connection with performing the SOW Services (collectively “MMI Materials”), including all Intellectual Property Rights therein. Lab will have no rights in the MMI Materials except as expressly agreed to in writing by the Parties in the Statement of Work.
4.7 Other Services. Nothing in this Agreement or any Statement of Work will be deemed to restrict or limit MMI’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party. Lab acknowledges that MMI may engage subcontractors to perform certain services.
4.8 Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Lab will not recruit or otherwise solicit for employment any MMI employees without MMI’s express prior written approval.
5.1 Confidential Information Terms. Except as expressly permitted in the Transaction Documents, each Party agrees (i) not use the other Party’s Confidential Information except in the exercise of its rights or performance of its obligations under the Transaction Documents, (ii) not disclose Confidential Information to any third party except as expressly permitted herein, and (iii) to hold the other Party’s Confidential Information in strict confidence; provided that MMI may disclose Confidential Information of Lab to MMI’s Representatives. Notwithstanding the above, either Party may disclose the other Party’s Confidential Information upon the order of any competent court or government agency; provided that prior to disclosure, to the extent possible, the receiving Party shall inform the other Party of such order and shall reasonably cooperate with the efforts of the disclosing Party, at the disclosing Party’s expense, to obtain a protective order or other action to protect the confidentiality of the Confidential Information. It is understood and agreed that in the event of a breach of this provision damages may not be an adequate remedy and each Party shall be entitled to injunctive relief to restrain any such breach, threatened or actual without the necessity of posting a bond or other security.
Lab agrees that the terms and conditions, but not the existence, of the Transaction Documents shall be treated as MMI’s Confidential Information and that no reference to the terms and conditions of any of the Transaction Documents or to activities pertaining thereto can be made in any manner without the prior written consent of MMI; provided, however, that Lab may disclose the terms and conditions of the Transaction Documents: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to Lab’s legal counsel; (iv) in confidence, to accountants, banks, and financing sources and their advisors; (v) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
5.2 Non-Confidential Information. The term “Confidential Information” shall not include any information which: (i) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the receiving Party, (ii) the receiving Party, through competent evidence, can demonstrate knowledge prior to disclosure, (iii) is disclosed to the receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality or (iv) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information as evidenced by the written records of the receiving Party.
5.3 HIPAA. The Parties acknowledge and agree that MMI is acting as a Business Associate (as defined in HIPAA) of MMI’s medical practice customers (and not as a Business Associate of Lab) when MMI (a) delivers such customers’ pathology laboratory test orders through an Interface to Lab and (b) receives Results for such pathology laboratory tests from Lab through an Interface. This Agreement is not intended to create, nor should it be construed as a business associate agreement within the meaning of HIPAA. Any Business Associate Agreement previously executed by the Parties is superseded hereby and has no further force or effect. Notwithstanding anything to the contrary in this Agreement, Lab acknowledges that (i) MMI’s medical practice customers have granted MMI the right to use Protected Health Information (as defined in HIPAA) (including Orders and Results data) and other data of such customer to create data that is de-identified in accordance with the HIPAA de-identification standard; (ii) MMI may use, sell, provide to third parties, and otherwise commercialize any such de-identified data for any purpose not prohibited by law; and (iii) nothing in this Agreement shall be deemed to restrict MMI’s ability to commercialize, market, license, use, provide to third parties, transform or sell such de-identified patient and other data.
5.4 Feedback. If Lab informs MMI of any errors, difficulties or other problems with EMA, the Services or any Interface, or provides any feedback or makes any suggestions as to changes or modifications to EMA, the Services or any Interface (collectively, “Feedback”), then MMI shall own all right, title and interest in that Feedback and shall have the unrestricted right to use the Feedback for any purpose. Lab hereby irrevocably assigns and agrees to assign all of its right, title and interest in and to the Feedback to MMI. To the extent Lab is unable to assign any of its rights in the Feedback to MMI, Lab hereby grants to MMI a perpetual, irrevocable, worldwide, fully paid up license to sell, offer to sell, make, have made, import, use, disclose, copy, distribute, publicly perform, publicly display, modify, create derivative works of and otherwise fully exploit the Feedback for any purpose. The Feedback shall be treated as MMI’s Confidential Information and MMI shall have the unrestricted right to use and disclose the Feedback for any purpose.
5.5 Other Permitted Disclosures. Nothing in this Agreement will be construed to prohibit or restrict any communication in a manner that violates the Condition of Certification at 45 C.F.R. § 170.403(a). Neither Party will impose any prohibition or restriction on any third party that prohibits or restricts any communication in a manner that violates the Condition of Certification.
6.1 General Warranties.
6.1.1 Authority. Lab represents and warrants that it is in good standing and duly licensed, and has procured all necessary licenses, registrations, approvals, consents, and any other communications in each jurisdiction as required to enable Lab to conduct its business and to perform its obligations under the Transaction Documents to which it is a party. Lab further represents and warrants that it has the legal power and requisite authority to enter into the Transaction Documents to which it is a party.
6.1.2 Compliance. Lab represents, warrants and covenants that it has complied and will comply with all applicable laws and regulations. Lab represents and warrants that the Lab System, data residing therein and data transmitted therefrom meets industry standards for EDI computer and communication security.
6.1.3 Non-disruption. Neither the Lab System, any part thereof nor any data transmitted by Lab to MMI (including any software, upgrades, error corrections or enhancements) contain any programming devices (e.g., viruses, key locks, back doors, trap doors, time out or any similar or other type of disabling device or characteristic, etc.) which would (i) disrupt the use of the Services, or any system, equipment, program or software to which EMA is interfaced or connected; (ii) destroy or damage data or make data inaccessible or delayed, except for file and purge routines necessary to the routine maintenance of Lab System; or (iii) permit Lab personnel or other individuals access to any portion of EMA. Lab will use all reasonable practices and security procedures necessary to avoid insertion of such devices, and will use reasonable commercial efforts to remove any such devices so inserted, at Lab’s cost and expense.
6.2 Disclaimer of Warranties. THE SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MMI HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
ANY PRODUCTS OR SERVICES CONTEMPLATED BY THE TRANSACTION DOCUMENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANY THIRD-PARTY MEDIA, CONTENT, PRODUCTS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE INTERFACES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
MMI DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING (A) THE USE OR THE RESULTS OF THE USE OF ITS PRODUCTS, SERVICES, WEBSITES OR ANY THIRD PARTY WEBSITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE, OR (B) THE ACCURACY OF CODES, IMAGES, INFORMATION OR OTHER DATA PROVIDED BY ANY PRODUCTS OR SERVICES. ANY CLINICAL INFORMATION PROVIDED BY ANY PRODUCTS OR SERVICES IS INTENDED AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, THE KNOWLEDGE, SKILL AND JUDGMENT OF HEALTHCARE PROFESSIONALS IN PATIENT CARE. MMI IS NOT A HEALTH PLAN, HEALTH CARE PROVIDER OR PRESCRIBER.
MMI DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION OF OR ACCESS TO THE SERVICES, ITS WEBSITES AND THE CONTENTS THEREOF, SERVICE ELEMENTS OR RELATED PRODUCTS. LAB ASSUMES THE ENTIRE RISK WITH RESPECT TO THE PERFORMANCE AND RESULTS IN CONNECTION WITH ANY SERVICES PROVIDED HEREUNDER AND LAB’S USE OF THE SERVICES IN CONNECTION WITH LAB’S HARDWARE. MMI SHALL NOT BE LIABLE FOR ANY DAMAGE CAUSED BY THE INTERACTION OF THE SERVICES WITH ANY DEVICE OR ANY INFORMATION TECHNOLOGY INFRASTRUCTURE OF LAB.
NEITHER MMI NOR ITS AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES OR ANY FEATURES OR PRODUCTS IN CONNECTION WITH THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
6.3 Limitations by Applicable Law. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THE TRANSACTION DOCUMENTS APPLY TO LAB TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER APPLICABLE LAWS.
7. Limitation of Liability; Indemnification.
7.1 Limitation of Liability. IN NO EVENT SHALL MMI’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY INTERFACE, ANY FUNCTIONALITY, THE SERVICES, ANY OTHER PRODUCTS OR SERVICES AND/OR ANY OF THE TRANSACTION DOCUMENTS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES ACTUALLY PAID BY THE LAB TO MMI UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
7.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL MMI OR ITS PRESENT AND FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY TO LAB OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PAYER RECOUPMENTS OF REIMBURSEMENTS, REFUNDS TO PAYERS, OR OTHER LOST REIMBURSEMENTS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY WHETHER OR NOT MMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.3 Limitation of Action. No action (regardless of form) arising out of the Transaction Documents may be commenced by Lab against MMI more than two (2) years after the cause of action arose.
7.4 Indemnification. Lab shall indemnify and hold harmless MMI and MMI’s Affiliates and each of their respective officers, directors, employees and agents, from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses), arising, directly or indirectly, out of or relating to any claim or allegation based on (i) Lab’s breach of any of the Transaction Documents, (ii) Lab’s violation of any applicable law, rule or regulation or (iii) any negligence, willful misconduct or willful omission of Lab, or any of Lab’s employees, personnel, agents or vendors.
8.1 Initial Term and Renewals. The initial term of this Agreement shall be two (2) years from the Effective Date (the “Initial Term”). Following the conclusion of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (“Renewal Term(s)”) unless written notice of termination is given by either Party forty-five (45) days prior to the end of the Initial Term or any Renewal Term. Collectively the Initial Term and any Renewal Term(s) constitute the “Term”.
8.2 Termination for Cause. Either Party may terminate any of the Transaction Documents by written notice if the other Party commits a material breach of any of the Transaction Documents and fails to cure such breach within thirty (30) days after receipt of written notice describing such breach from the nonbreaching Party.
8.3 Termination for Other Matters. MMI may terminate any of the Transaction Documents: (i) as set forth in Sections 2.7 and 9.8 of these Terms and Conditions; (ii) immediately if Lab becomes insolvent or unable to pay its debts as they become due, or the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (iii) if Lab defaults on any of its payment obligations under any of the Transaction Documents and such payment default is not cured within ten (10) days after receiving written notice of such default from MMI or (iv) at any time following the Initial Term upon ten (10) days prior written notice to Lab.
8.4 Effect of Termination and Expiration. All rights and obligations of the Parties hereunder shall cease upon the termination or expiration of this Agreement except that the rights and obligations of the Parties under Sections 1, 2.5, 2.8, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11,4.5, 4.6, 4.7, 4.8, 5, 6.2, 6.3, 7, 8 and 9 will survive. Termination or expiration of this Agreement shall not relieve Lab of the obligation to pay any Fees or other amounts accrued or payable to MMI prior to the effective date of termination or expiration of this Agreement.
9.1 Publicity. Except as otherwise expressly set forth in this Agreement, neither Party shall refer to the other in any press release, marketing materials, advertisements or other public broadcast or communication of any kind without first obtaining that Party’s advance written consent.
9.2 Non-Exclusive. Lab acknowledges that this Agreement is non-exclusive and, without limiting the foregoing, that nothing herein shall be deemed to limit MMI’s right to offer similar services to third parties.
9.3 Relationship of the Parties. None of the Transaction Documents create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties and the status of the Parties shall be independent parties to a contractual arrangement. Neither Party shall have the authority to bind the other Party by contract or otherwise.
9.4 Benefit to Others. The representations, warranties, covenants and agreements contained in the Transaction Documents are for the sole benefit of the Parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other Persons.
9.5 Notices. Any notice required by this Agreement or given in connection with therewith, shall be in writing and shall be given (i) if to MMI, to Modernizing Medicine, Inc., 4850 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431, Attention: Chief Financial Officer with a copy sent to Modernizing Medicine, Inc., 4850 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431, Attention: General Counsel by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services with proof of delivery and (ii) if to Lab, to the Lab’s address (or email address) set forth in this Agreement or such other address (or email address) as may be provided in writing from time to time by email or by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services with proof of delivery.
9.6 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
9.7 Force Majeure. MMI shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, cyber war or attack, terrorism, insurrection, sabotage, embargo, fire, flood, tropical storm, earthquake, tornado, hurricane, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or services or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services or any other products or services contemplated by any of the Transaction Documents.
9.8 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable, such provision shall be changed by the court or by the arbitrator 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, unless the modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.
9.9 Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, MMI shall be permitted to assign any of the Transaction Documents without the prior written consent of Lab: (i) to an Affiliate, parent company or subsidiary or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under any of the Transaction Documents in breach of this Section 9.9 shall be void and of no effect. Subject to the foregoing, each of the Transaction Documents shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
9.10 Governing Law. None of the Transaction Documents shall be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. Except as otherwise provided herein, each of the Transaction Documents shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to its conflict of laws provisions.
9.11 Venue. The federal courts of the United States in and for the Southern District of Florida and the state courts of the State of Florida located in Palm Beach County, Florida shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to any of the Transaction Documents. Each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
9.12 Enforcement Costs. If any legal action or other proceeding is brought for the enforcement or interpretation of any of the Transaction Documents, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of the Transaction Documents, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, court costs and all expenses incurred in that action or proceeding and at all levels of trial and appeal, in addition to any other relief to which such Party may be entitled.
9.13 Entire Agreement and Construction. The Transaction Documents represent the entire agreement of the Parties with respect to the subject matter hereof, and supersede all previous agreements and understandings, whether written or oral, between the Parties with respect to the subject matter herein, including, without limitation, any Mutual Interconnectivity Agreement, Business Associate Agreement or Electronic Data Interchange Services Agreement previously entered into between the Parties. Except as otherwise expressly set forth herein, no modification, amendment, or waiver of any provision of the Transaction Documents shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. Under no circumstances shall the terms of any purchase order, quote acknowledgement, acceptance or similar form from Lab be deemed binding upon MMI.
9.14 Counterparts. Each of the Transaction Documents requiring execution by a Party hereto may be executed in one or more counterparts, which may be delivered by fax or other electronic transmission, including email, each of which shall be deemed an original and which taken together shall form one legal instrument.
9.15 Headings. Headings used in each of the Transaction Documents are provided for convenience only and shall not be used to provide meaning or intent.
9.16 Due Execution. Lab acknowledges that MMI shall not be deemed bound by this Agreement or any Statement of Work unless and until the same shall have been duly executed by an authorized representative of MMI and Lab.
9.17 Content and Manner Acknowledgment. Each Party acknowledges and intends that the terms contained in this Agreement that relate to the content and manner of a request for access, exchange, or use of electronic health information (as defined at 45 C.F.R. § 171.102), including terms related to fees, reflect the Parties’ mutual agreement (in an arm’s-length transaction without coercion) and meet the “content” and “manner requested” conditions of the Content and Manner Exception at 45 C.F.R. §§ 171.301(a) and (b)(1), respectively.
