gMed® Standard Terms and Conditions
These Standard Terms and Conditions, as amended from time to time (these “Terms and Conditions“), form a part of the gMed Order Form (the “Order Form” and together with these Terms and Conditions, this “Agreement“) between gMed, Inc., a Delaware corporation with offices located at 3600 FAU Blvd., Suite #202, Boca Raton, FL 33431 (“gMed“), and the customer set forth on the Order Form (“Client“). gMed and Client may be referred to herein each individually as a “Party” and together as the “Parties“. These Terms and Conditions were last updated on November 30, 2015.
| 1. | Definitions. As used in this Agreement: |
| 1.1 | “Authorized Carts” means the number of Carts specified in the Order Form as being authorized for use in conjunction with Cart Specific Products. |
| 1.2 | “Authorized Endocenters” means the number of Endocenters specified in the Order Form as being authorized for use of Endocenter Specific Products. |
| 1.3 | “Authorized MD” means an MD that is an Authorized User of the applicable Product. |
| 1.4 | “Authorized Mid-Level” means a Mid-Level that is an Authorized User of the applicable Product. |
| 1.5 | “Authorized Providers” means MDs and Mid-Levels that are Authorized Users of the applicable Product. |
| 1.6 | “Authorized Rooms” means the number of Rooms specified in the Order Form as being authorized for use in conjunction with Room Specific Products. |
| 1.7 | “Additional Services” has the meaning set forth in Section 2.3. |
| 1.8 | “Authorized User” means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Products. |
| 1.9 | “Cart” means a mobile cart used in conjunction with a Cart Specific Product. |
| 1.10 | “Cart Specific Product” means Products for which a per Cart Fee is specified in the Order Form. |
| 1.11 | “Certified Users” means Client employees that attend all of the courses and pass all of the exams provided on the gBus, gMed’s online learning platform (https://connect.gmed.com/). |
| 1.12 | “Client Data” means any electronic data, information or material that gMed receives from or on behalf of Client, Client’s Patients and/or Client’s Authorized Users (or at any of their direction) through the Products or otherwise in connection with this Agreement, including, without limitation, (i) any electronic data, information or material entered into the Products by Client and its Authorized Users (or at any of their direction), (ii) any electronic data, information or material imported into the Products relating to Client or any of its Patients, (iii) Patient Data and (iv) any electronic data, information or material provided or submitted by a third party through the Products relating to the Client or any of its Patients. |
| 1.13 | “Contract Date” means such date specified on the Order Form as being the Contract Date. |
| 1.14 | “Contract End Date” means such date specified on the Order Form as being the Contract End Date. |
| 1.15 | “Detailed Issue Description” means verbal or written description by Client of an incident and the associated relevant information that is sufficient for gMed to reproduce the incident with gMed’s master copy of the Maintenance Eligible Software. |
| 1.16 | “Endocenter” means a single location at which endoscopic procedures are performed. |
| 1.17 | “Endocenter Specific Products” means Products for which a per Endocenter Fee is specified in the Order Form. |
| 1.18 | “Fees” has the meaning set forth in Section 3.1. |
| 1.19 | “Fix” means the repair or replacement of object or executable code versions of Maintenance Eligible Software to remedy a Software Error. |
| 1.20 | “gMed Site” means www.gmed.com and any related sites operated by gMed. |
| 1.21 | “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. |
| 1.22 | “Hosted Software” means gMed’s proprietary web-based software listed in the Order Form. |
| 1.23 | “Implementation Fee” means the total one-time Fees specified in the Order Form. |
| 1.24 | “Implementation Plan” means a document setting out proposed activities, dates, participants, roles, and milestones for implementation of the Products in Client’s Practice. |
| 1.25 | “Installation of Licensed Software” means the transfer of Licensed Software object code to a server designated for Client’s use. |
| 1.26 | “Licensed Software” means any applications or other software supplied by gMed to Client for local installation on Client’s servers or other computing hardware. |
| 1.27 | “Maintenance Eligible Software” means Licensed Software for which Client has purchased Support and Maintenance; provided that the Product Term of such Support and Maintenance has not expired or terminated. |
| 1.28 | “MD” means a doctor of medicine. |
| 1.29 | “Mid-Level” means a provider other than an MD that generates an invoice for his or her services, including, without limitation, registered nurses and licensed practical nurses. |
| 1.30 | “Misuse” means the use of Maintenance Eligible Software for a purpose or in a manner different from that described in Written Documentation. |
| 1.31 | “Normal Business Hours” means the hours between 8:30am and 5:30pm Eastern Time, from Monday to Friday, except for holidays observed by gMed. |
| 1.32 | “Patient(s)” means any person who was a previous or is a prospective or current patient of Client. |
| 1.33 | “Patient Data” means any electronic data, information or material about a Patient entered into the Products. |
| 1.34 | “Practice” means a collection of providers grouped under a single tax identifier, for which either claims or statements are being produced or transmitted, regardless of the number of physical locations. |
| 1.35 | “Product Delivery Date” means such date as Client’s first employee, representative, consultant, contractor or agent shall have initially been provided by gMed with the applicable Licensed Software or a login to access the applicable Subscription Services or such other date as specified in the Order Form as the Product Delivery Date. Notwithstanding the foregoing, to the extent that such Licensed Software or such login shall not have been provided by gMed within forty-five (45) days after the earlier of (i) the Contract Date or (ii) if Client originally contracted for the applicable Licensed Software or Subscription Service pursuant to an agreement that was superseded by this Agreement, then the date of such superseded agreement (the “Cut-Off Date“), and such failure to provide such Licensed Software or login is not primarily due to a failure by gMed to perform its obligations under this Agreement (as determined by gMed in its sole discretion), then the Product Delivery Date shall be deemed the Cut-Off Date. |
| 1.36 | “Product Term” has the meaning set forth in Section 15.1. |
| 1.37 | “Product Term End Date” means such date specified on the Order Form as being the Product Term End Date for the applicable Product. |
| 1.38 | “Products” means the Licensed Software, the Subscription Services, Support and Maintenance, and any additional software or services listed on an Order Form to be provided to Client by gMed. |
| 1.39 | “Representative” means, as to gMed, its employees, directors, officers, affiliates, advisors, agents, vendors, any person or entity that provides any products or services that relate to the Products or the Additional Services (including, without limitation, laboratories and other diagnostic, clinical and pathology testing providers), service providers, consultants and contractors. |
| 1.40 | “Room” means each room of Client used to perform medical procedures. |
| 1.41 | “Room Specific Products” means Products for which a per Room Fee is specified in the Order Form. |
| 1.42 | “Software Error” means a programming error, logic error, or defect within the Maintenance Eligible Software that is reproducible by gMed and which causes such Maintenance Eligible Software to fail to (i) conform as to all material operational features and performance characteristics as provided in the Written Documentation supplied by gMed with the Maintenance Eligible Software, and (ii) be free of errors and defects that materially affect the performance of the Maintenance Eligible Software. |
| 1.43 | “Statement of Work” has the meaning set forth in Section 7.1. |
| 1.44 | “Subscription Services” means web-based access to the Hosted Software. |
| 1.45 | “Support and Maintenance” means those services specified on Exhibit B to these Terms and Conditions. Support and Maintenance shall be deemed a Product under this Agreement and subject to a Product Term as specified on the Order Form. |
| 1.46 | “Territory” means the United States of America. |
| 1.47 | “Transaction Documents” means this Agreement (including the Business Associate Addendum (as defined in Section 11)), the exhibits hereto, any addendums to this Agreement entered into in accordance with these Terms and Conditions, any Statement of Work (as defined in Section 7.1) and the Electronic Payment Authorization Form (as defined in Section 3.7). |
| 1.48 | “Written Documentation” means the written documentation provided to Client in paper or electronic format describing procedures, guidelines, plans, and requirements for the implementation, training, standard configuration, use, and maintenance of the Products. This includes, but is not limited to, user guides, system administrator guides, training curricula, and implementation packages. |
| 2. | Licensed Software; Subscription Services. |
| 2.1 | Licensed Software. If the Products specified on the Order Form include Licensed Software, then commencing on the Product Delivery Date for the applicable Licensed Software, gMed hereby grants to Client a non-exclusive, nontransferable and limited (as provided in this Agreement) license, without the right to sublicense, to download, install, and use such Licensed Software in connection with such Products on Client’s servers or on Authorized Users’ computers, as applicable, in the Territory, only for the Product Term specified on the Order Form for such Licensed Software, and only for Client’s internal business purposes (the “License”). Client’s employees, representatives, consultants, contractors, or agents will become Authorized Users of the Licensed Software using the login information provided by gMed or, with the consent of gMed, by the Client’s administrator. Without limiting any terms of this Agreement, after the issuance of logins to the number of Authorized Users specified as being authorized to use the Licensed Software on the Order Form, gMed may make the issuance of any additional logins subject to such conditions as gMed may determine, including, without limitation, the payment of activation, training and other fees by Client with respect to such new Authorized Users. Client acknowledges that the Licensed Software may contain features or functionality that are not licensed unless such features or functionality are specified on the Order Form and unless activation keys are provided to Client for such features or functionality, and agrees not to use such unlicensed features or functionality. |
| 2.2 | Subscription Services. If the Products specified on the Order Form include Subscription Services, then commencing on the Product Delivery Date for the applicable Subscription Service and for the Product Term specified on the Order Form for such Subscription Service, gMed will use commercially reasonable efforts to provide the Subscription Services to Client through the gMed Sites, in the Territory, for Client’s internal business purposes only (the “Subscription Service Authorization“). Client’s employees, representatives, consultants, contractors, or agents become Authorized Users of the Subscription Services by logging into the gMed Site indicated by gMed and using the login information provided by gMed or, with the consent of gMed, by the Client’s administrator. Without limiting any terms of this Agreement, after the issuance of logins to the number of Authorized Providers specified as being authorized to use the Subscription Services on the Order Form, gMed may make the issuance of any additional logins subject to such conditions as gMed may determine, including, without limitation, the payment of activation, training and other fees by Client with respect to such new Authorized Providers. |
| 2.3 | Additional Services. gMed may require Client to agree to modified or additional terms in order to access certain additional services, software or technology, including, without limitation, through a “click- to-agree” addendum or other means acceptable to gMed (“Additional Services“). |
| 2.4 | It is understood that the Products are designed solely as a reference for practicing healthcare professionals, and that as such, they may integrate clinical and financial information with other information of multiple origins. gMed is not responsible for the accuracy of any information obtained from the Products or for any damages resulting from Client’s use or misuse of such information. gMed shall not be deemed to be engaged, either directly or indirectly, in the practice of medicine or the dispensing of medical services or advice. It is incumbent upon Client to verify the proper use and interpretation of information obtained from the use of the Products. Accordingly, Client acknowledges and agrees that (i) gMed is not a health care provider, (ii) the Products provide only sample forms and templates, (iii) the treatments, procedures, information, medications, products and other matters referenced by the Products are not intended as a recommendation or endorsement of any course of treatment, procedure, information, product or medication and (iv) the ultimate responsibility for diagnosing and treating any Patient, as well as drafting or completing all written materials related to such Patient and for ensuring compliance with any applicable federal, state, American Medical Association, state medical association, or local laws, rules and regulations, and professional ethical guidelines which may apply to such materials, rests exclusively with the physicians and the other professionals treating such Patient. |
| 2.5 | Third Party Registries. The Products may contain functionality to collect and transmit certain Physicians Quality Reporting System (“PQRS“) and other data to certain third party registries such as GIQuIC (the “Registry Functionality“). If the Order Form indicates that Client has elected to implement a registry reporting option then Client, on behalf of itself and each of its Authorized Users, hereby authorizes gMed (i) to provide any measures, information, data or material entered into the Products and/or generated by the Products, including, without limitation, PQRS measure calculations (“Registry Information“), to such registry, and (ii) to use and disclose the Registry Information for any purpose and in any manner not prohibited by law (the “Registry Services”). Client acknowledges and agrees that (i) gMed may deactivate the ability to transmit Registry Information to GIQuIC or any other third party from time to time in gMed’s sole discretion and (ii) the Registry Functionality and the Registry Services may not be available for use by Client or its Authorized Users from time to time in the sole discretion of gMed. Without limiting the foregoing, Client further acknowledges and agrees that no Authorized Users shall use the Registry Functionality in the Products or the Registry Services if Client is not then current in all payments owed to gMed under the Order Form. Each Authorized User shall follow all guidelines, protocols and procedures specified by gMed with respect to the use of the Registry Functionality and Registry Services. Notwithstanding anything in the Transaction Documents to the contrary, gMed may, in its sole discretion, modify, update, revise, enhance or change any aspect of the Registry Services. |
| 2.6 | Conversions; Document Loads. If the Order Form or a Statement of Work contemplates a data conversion, EndoWorks conversion or bulk document load then gMed shall use commercially reasonable efforts to perform such data conversion, EndoWorks conversion or bulk document load. gMed and Client agree that in the event that gMed determines, in its sole discretion, that it is unable, using commercially reasonable efforts, to perform a data conversion, EndoWorks conversion or bulk document load for Client that was previously specified on the Order Form or a Statement of Work, then (i) if gMed provides written notice of such determination to Client (the “Conversion Notice“) then gMed shall have no further obligation to perform the data conversion, EndoWorks conversion or bulk document load and (ii) Client’s sole and exclusive remedy shall be for Client to receive a refund of the unused portion of the fee paid by Client to gMed with respect to the data conversion, EndoWorks conversion or bulk document load as determined by gMed. To receive the refund described in this Section 2.6, Client must notify gMed of its refund request within fifteen (15) days from the date of the Conversion Notice. Client agrees that any fees charged by any other vendor that relate to, or arise out of, any data conversion, EndoWorks conversion or bulk document load are the responsibility of Client. |
| 2.7 | Interfaces. Client acknowledges and agrees that if the Order Form or a Statement of Work contemplates that gMed shall establish an interface between any Product and another Product or a third party product or service (each, an “Interface“) that the cooperation and services of third parties may be necessary in order to establish such Interface and, as such, gMed does not guarantee when, or if, any Interface will be established. Client acknowledges and agrees that the timing of the completion of any Interface will not impact the Client’s obligations under the Transaction Documents, including, without limitation, the obligation to pay all Fees. gMed and Client agree that in the event that gMed determines, in its sole discretion, that it is unable, using commercially reasonable efforts, to establish an Interface for Client that was previously specified on the Order Form or a Statement of Work, then (i) if gMed provides written notice of such determination to Client (the “Interface Notice“), gMed shall have no further obligation to establish the applicable Interface and (ii) Client’s sole and exclusive remedy shall be for Client to receive a refund of the unused portion of the fee paid by Client to gMed with respect to the establishment of such Interface as determined by gMed. To receive the refund described in this Section 2.7, Client must notify gMed of its refund request within fifteen (15) days from the date of the Interface Notice. For the avoidance of doubt, gMed has no obligation to modify any Interface after its initial establishment or provide any new interfaces. Client agrees that any fees charged by any other vendor that relate to, or arise out of, an Interface are the responsibility of Client. Client agrees that gMed may impose such limitations on the use of any Interface in conjunction with any Products as gMed may deem appropriate. |
| 2.8 | Licensed Software Support and Maintenance. If the Order Form specifies that Client is entitled to Support and Maintenance for specified Licensed Software then gMed shall use commercially reasonable efforts to provide such Support and Maintenance to Client for such Licensed Software during the Product Term for such Support and Maintenance as specified in the Order Form. For the avoidance of doubt, if the Order Form does not specify Support and Maintenance or the Licensed Software for which such Support and Maintenance is intended then gMed has no obligation to provide Support and Maintenance. |
| 3. | Fees. |
| 3.1 | General. In consideration for the rights granted and services offered to Client in this Agreement, Client agrees to pay gMed all fees set forth on the Order Form or otherwise specified in this Agreement (the “Fees“) in accordance with the terms of this Agreement. |
| 3.2 | Changes to Providers. If the Order Form indicates that Client has purchased a Subscription Service and (i) the number of MDs that are part of Client’s Practice at any time exceed the number of Authorized MDs or (ii) the number of Mid-Levels that are part of Client’s Practice at any time exceed the number of Authorized Mid-Levels then the aggregate per MD and per Mid-Level Fees payable by Client as set forth in the Order Form shall be automatically increased to reflect such greater number of MDs or Mid-Levels, as the case may be, beginning with the calendar month following the change. If the Order Form indicates that Client has purchased a Subscription Service and (i) the number of MDs that are part of Client’s Practice at any time during a Renewal Term are less than the number of Authorized MDs or (ii) the number of Mid-Levels that are part of Client’s Practice during a Renewal Term are less than the number of Authorized Mid-Levels then the aggregate per MD and per Mid-Level Fees payable by Client as set forth in the Order Form shall be automatically decreased to reflect such lesser number of MDs or Mid-Levels, as the case may be, beginning with the calendar month following the change. There will not be any decrease in Fees during the Initial Term without the prior written consent of gMed. Notwithstanding the foregoing, gMed shall have no obligation to provide any decrease in Fees pursuant to this Section if Client fails to inform gMed in writing within ten (10) days of any change in the number of MDs or Mid-Levels in the Practice. |
| 3.3 | Additional Monthly Service Fees. Client agrees to pay gMed the additional amounts specified on Exhibit C to the extent Client or its Authorized Users make use of any of the services or otherwise meet the descriptions listed on Exhibit C. Client is solely responsible for prompt payment to any third party service providers. gMed may discontinue, change, modify or condition any of the services specified on Exhibit C in its discretion. |
| 3.4 | Overdue Payments. Any payment owed by Client to gMed hereunder and not paid to gMed from Client’s account (e.g. due to low balance, a stop payment order, or any other reason) (an “Overdue Payment“) may accrue, at gMed’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. |
| 3.5 | Other Costs. All travel, meals and lodging expenses associated with the implementation, training, and technical support of the Products purchased hereunder are in addition to the Fees detailed on the Order Form and shall be paid by Client. Client is also responsible for all shipping and handling costs. Client shall be billed for actual expenses incurred, and payment for such expenses shall be due upon receipt of such invoices. Without limiting the foregoing, gMed may elect to bill meals and incidentals on a per-diem basis, at $64/day including travel days, which amount shall be paid by Client upon receipt of such invoice. |
| 3.6 | Payment. |
| 3.6.1 | The Implementation Fee is payable on the execution of the Order Form by Client or as otherwise agreed to in writing by gMed. The Implementation Fee shall be paid by check, credit card or through the Automated Clearing House (“ACH“) and gMed shall have no obligation to issue a separate invoice to Client with respect to the Implementation Fee. |
| 3.6.2 | Monthly Fees, if any, are due in advance on the earlier of (i) the first day of each calendar month immediately after activation of the Products to which such Fees apply or (ii) thirty (30) days after the date of the invoice for such Fees. |
| 3.6.3 | All other fees will be due within thirty (30) days after the date of the invoice for such fees, which may be billed in advance at the discretion of gMed. |
| 3.7 | Payment Method. Other than the Implementation Fee (which shall be paid by check, credit card or through ACH), Client shall pay gMed for any other amounts due under this Agreement by check or, at gMed’s election, via electronic payment. Upon gMed’s request, Client shall execute, complete and deliver to gMed the electronic payment authorization form (the “Electronic Payment Authorization Form“) provided to Client by gMed or otherwise use such payment portal as directed by gMed. If the account or other information specified in the Electronic Payment Authorization Form changes during the Term, Client shall provide gMed with a revised Electronic Payment Authorization Form in a timely manner so as to avoid incurring an Overdue Payment. |
| 3.8 | Increasing the Number of Authorized Users — Licensed Software. Client acknowledges and agrees that the number of Authorized Providers of Client that use any Licensed Software shall not exceed the number specified in the Order Form for such Licensed Software. The number of Authorized Providers authorized to use Licensed Software may be increased through such methods as are approved by gMed in its discretion, including through the execution of an Addendum to this Agreement by Client and gMed (an “Add-On Addendum“). Client acknowledges and agrees that gMed may make any increase in the number of Authorized Providers contingent upon the payment of such Fees by Client to gMed as deemed appropriate by gMed and specified in the Add-On Addendum, including, without limitation, additional monthly usage fees, activation fees and training fees. Except as otherwise specified herein or in the Order Form, the number of Authorized Providers cannot be decreased during the relevant Product Term without the written consent of gMed. |
| 3.9 | Increasing the Number of Authorized Providers — Subscription Service. Client acknowledges and agrees that the number of Authorized Providers of Client that use a Subscription Service shall not exceed the number specified in the Order Form for such Subscription Service. The number of Authorized Providers authorized to use a Subscription Service may be increased through such methods as are approved by gMed in its discretion, including through the execution of an Add-On Addendum. Client acknowledges and agrees that gMed may make any increase in the number of Authorized Providers contingent upon the payment of such Fees by Client to gMed as deemed appropriate by gMed and specified in the Add-On Addendum, including, without limitation, additional monthly usage fees, activation fees and training fees. Except as otherwise specified herein or in the Order Form, the number of Authorized Providers cannot be decreased during the relevant Product Term without the written consent of gMed. |
| 3.10 | Increasing the Number of Authorized Rooms. Client acknowledges and agrees that the number of Authorized Rooms of Client in which Room Specific Products are used by Client shall not exceed the number specified in the Order Form. The number of Authorized Rooms in which Room Specific Products are used may be increased through such methods as are approved by gMed in its discretion, including through the execution of an Add-On Addendum. Client acknowledges and agrees that gMed may make any increase in the number of Authorized Rooms contingent upon the payment of such Fees by Client to gMed as deemed appropriate by gMed and specified in the Add-On Addendum. Except as otherwise specified herein or in the Order Form, the number of Authorized Rooms cannot be decreased during the relevant Product Term without the written consent of gMed. |
| 3.11 | Increasing the Number of Authorized Carts. Client acknowledges and agrees that the number of Authorized Carts used by Client shall not exceed the number specified in the Order Form. The number of Authorized Carts may be increased through such methods as are approved by gMed in its discretion, including through the execution of an Add-On Addendum. Client acknowledges and agrees that gMed may make any increase in the number of Authorized Carts contingent upon the payment of such Fees by Client to gMed as deemed appropriate by gMed and specified in the Add-On Addendum. Except as otherwise specified herein or in the Order Form, the number of Authorized Carts cannot be decreased during the relevant Product Term without the written consent of gMed. |
| 3.12 | Increasing the Number of Authorized Endocenters. Client acknowledges and agrees that the number of Authorized Endocenters of Client in which Endocenter Specific Products are used by Client shall not exceed the number specified in the Order Form. The number of Authorized Endocenters in which Endocenter Specific Products are used may be increased through such methods as are approved by gMed in its discretion, including through the execution of an Add-On Addendum. Client acknowledges and agrees that gMed may make any increase in the number of Authorized Endocenters contingent upon the payment of such Fees by Client to gMed as deemed appropriate by gMed and specified in the Add- On Addendum. Except as otherwise specified herein or in the Order Form, the number of Authorized Endocenters cannot be decreased during the relevant Product Term without the written consent of gMed. |
| 3.13 | Changes to Fees. gMed may change the Fees and discounts set forth in this Agreement by providing at least thirty (30) days prior written notice (the “Notice Period“) of such change to Client. Any such change shall take effect at the beginning of the next Renewal Term after the expiration of the Notice Period. |
| 3.14 | Currency. All amounts set forth in this Agreement are denominated and shall be paid in U.S. dollars. |
| 3.15 | Suspension of Service. If there are Overdue Payments outstanding for more than thirty (30) days, gMed reserves the right to suspend Authorized Users’ access to all Products until such amounts are paid in full. Client shall continue to be obligated to pay the Fees during such suspension period. |
| 3.16 | Taxes. All amounts payable by Client to gMed pursuant to this Agreement (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 gMed are payable in full without reduction for Taxes. Client is responsible for payment of all Taxes, excluding taxes owed by gMed based on gMed’s net income. If gMed has the legal obligation to pay or collect Taxes for which Client is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides gMed with a valid tax exemption certificate authorized by the appropriate taxing authority. |
| 3.17 | Deposits. All deposits are non-refundable under any circumstances. |
| 4. | Client’s Responsibilities; Client’s Sole Responsibility for Medical Services & Client Data. |
| 4.1 | Hardware. Client is solely responsible for acquiring, installing and maintaining computer hardware that is adequate to support Client’s use of the Products. Client may request from gMed a document describing gMed’s recommend hardware, software, and infrastructure to meet the requirements of the Products, provided that such recommendations may be updated from time to time as new functionality is added to the Products and in response to changes in technology. If a dedicated server is required to operate any Licensed Software, Client agrees to provide such server and a suitable area at Client’s site for installation of the server in keeping with commonly accepted practices and with adequate ventilation, connectivity, and power, no later than ten (10) days prior to the anticipated date of installation of the Licensed Software. Furthermore, Client understands and acknowledges that installation of software other than the Licensed Software and not authorized in writing by gMed on such server will entitle gMed to terminate technical support or charge on a time and materials basis for any extra effort expended by gMed as a result of such unauthorized software. gMed will not provide maintenance for any of Client’s hardware. Client expressly acknowledges that gMed is not responsible for the safeguard, loss, or recovery of any data stored on Client’s hardware. Client is solely responsible for acquiring and maintaining such internet connections as are necessary for Client to use the Products. |
| 4.2 | Client Data. Client is responsible for all activities that occur under logins assigned to Client’s Authorized Users. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Client Data. |
| 4.3 | Service Guidelines. Client and its Authorized Users shall use the Products and any other services provided by gMed solely for Client’s internal business purposes as contemplated by this Agreement and shall not use the Products or any other services provided by gMed 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 the Subscription Services or gMed’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 the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services, Additional Services, computer systems or networks used to host or provide access to the Subscription Services; or (vii) harass or interfere with another user’s use and enjoyment of the Subscription Services or the other services provided by gMed. gMed may, without liability or notice to Client, remove or delete any material stored in the Subscription Services that gMed determines, in its sole discretion, violates any of the guidelines set forth in this Agreement. In addition to any other remedies gMed may have, gMed reserves the right to terminate each of the Transaction Documents or terminate any or all of the logins provided to Client or any Authorized User immediately and without notice, if gMed becomes aware or determines that Client or any Authorized User is violating any of the foregoing guidelines. Client shall be responsible for verifying the accuracy of results produced using the Products and for proper use of any forms provided by gMed. Client shall be responsible for following proper backup procedures to protect against loss or error resulting from use of any or all of the Products. |
| 4.4 | Taxes on Customer Payments. Client will be solely responsible for determining whether which of its charges are subject to taxation (e.g., sales tax) and, if so, the appropriate rate(s) applicable at each of its locations for the respective charges. Client is advised to consult with its accountants, advisors or attorneys in these regards. |
| 4.5 | Third Party Content. Client acknowledges that the Products may contain third party materials, and agrees to the terms set forth in Exhibit D. |
| 4.6 | Future Functionality. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by gMed regarding future functionality or features. |
| 5. | Product Updates; Modifications to Services. During the Term, gMed may, in its sole discretion, update the Products. Such updates may include modifications to the Products that increase the speed, efficiency or ease of use of the Products, and may add additional capabilities or functionality to the Products. gMed is under no obligation to make any such updates. To the extent that such updates apply to the Subscription Services, Client agrees to provide any and all assistance that gMed requires to deliver the update to the Subscription Services. gMed may offer customizations to the Products requested by Client or additional modules to the Products that may provide specific functionality or services at an additional cost to Client. Any such customizations or modules shall be separately negotiated and priced. gMed may require Client to agree to modified or additional terms in order to access any module, including, without limitation, through a “click-to-agree” addendum or other means acceptable to gMed. Without limiting the foregoing, gMed may determine, in its sole discretion, whether any specific functionality or services constitute customizations or modules that may be separately negotiated and priced. For the avoidance of doubt, nothing in the Transaction Documents obligates gMed to make any such customizations or modules available to Client or to require gMed to make such modules available for free or at any set price. Notwithstanding anything in the Transaction Documents to the contrary, gMed may, in its sole discretion, modify, update, revise, enhance or change any aspect of the Additional Services, Registry Services and/or the Products. Notwithstanding anything in the Transaction Documents to the contrary, Client acknowledges and agrees that gMed is under no obligation to provide Client with access to any third party software, website or service as part of the Registry Services or the Additional Services, through the Products or otherwise and to the extent that the Products, the Registry Services and/or the Additional Services provide access to any third party software, website or service gMed reserves the right, without prior notice, to suspend, limit or cancel such access for any reason. |
| 6. | Implementation and Training |
| 6.1 | Implementation Plan. If requested by gMed, Client and gMed shall create an Implementation Plan in a mutually agreeable timeframe. The Implementation Plan shall become an integral part of this Agreement when accepted in writing by gMed and Client. |
| 6.2 | Changes. Client understands that implementation of the Products may cause significant changes to Client’s normal business operation, and agrees that Client (i) has considered the financial impact of change; (ii) has considered the impact on productivity that may occur while learning to use the Products; and (iii) will work diligently with gMed and Client’s personnel to promote and implement any necessary change. |
| 6.3 | Project Management. Client agrees to designate a project manager (“Project Manager“) at Client’s expense to work with gMed in design and coordination of the Implementation Plan. Client represents that the Project Manager shall be knowledgeable in Client’s practices and shall be empowered, authorized, and available to design, execute, coordinate, and amend from time to time the Implementation Plan. Furthermore, Client agrees that the Project Manager will be provided sufficient time, authority, and resources to fulfill its obligations under the Implementation Plan. |
| 6.4 | Training Services. gMed shall provide training services as described on the Order Form. Unless otherwise specified in the Order Form, such training shall be delivered via (i) streaming video or (ii) a gMed Representative, during normal business hours as described in the Implementation Plan. |
| 6.5 | Training Environment. Client agrees to promote Product adoption by ensuring that (i) Client’s Authorized Users attend all applicable remote and/or on-site training sessions; (ii) Client Authorized Users become certified in the modules designated in the Implementation Plan; (iii) normal business workload is reduced during on-site training for each trainee in conformance with the guidelines described in the Written Documentation; and (iv) trainees are provided with equipment, physical space, and reasonable isolation during training. |
| 6.6 | Adjustments. Client and gMed acknowledge that unforeseen issues or changes may arise in the course of Product implementation, which will require resolution by one or both parties. Such issues may require adjustments to the Implementation Plan that Client and gMed shall negotiate in good faith, as some necessary changes could increase the Fees due under this Agreement. |
| 7. | SOW Services. |
| 7.1 | Statements of Work. From time to time, the Parties may execute statements of work that describe the specific services to be performed by gMed, including any work product to be delivered by gMed (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. |
| 7.2 | Performance of Services. gMed 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, any training services specified in the Order Form, any consulting services specified in the Order Form or otherwise provided by gMed, the Registry Services, the establishment of any interfaces specified in the Order Form, any of the services provided pursuant to Sections 2.6 and 2.7 of these Terms and Conditions and any set-up or other implementation services referenced in the Order Form shall be deemed SOW Services under this Agreement. |
| 7.3 | Changes to Statement of Work. Client may submit to gMed written requests to change the scope of SOW Services (each such request, a “Change Order Request“). gMed may approve or reject such Change Order Requests in its sole discretion. If gMed approves a Change Order Request, then gMed will promptly notify Client 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. gMed 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. |
| 7.4 | Client Responsibilities. In connection with the SOW Services, Client will: (i) provide qualified personnel who are capable of performing Client’s duties and tasks with respect to applicable SOW Services; (ii) provide gMed with access to Client’s sites and facilities during Client’s normal business hours and as otherwise reasonably required by gMed to perform the SOW Services; (iii) provide gMed with such working space and office support (including access to telephones, photocopying equipment, and the like) as gMed may reasonably request; and (iv) perform Client’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 gMed to perform the SOW Services. Client will also make available to gMed any data, information and any other materials required by gMed to perform the SOW Services, including, but not limited to, any data, information or materials specifically identified in this Agreement (collectively, “Client Materials“). Client will be responsible for ensuring that all such Client Materials are accurate and complete. |
| 7.5 | SOW Fees and Expenses. For gMed’s performance of the SOW Services, Client will pay gMed the fees calculated in accordance with the terms set forth in this Agreement, including, any applicable Statement of Work (the “SOW Fees“). In addition, Client will reimburse gMed for the following expenses incurred by gMed or its personnel in connection with the performance of the SOW Services (the “SOW Expenses“): all reasonable out-of-pocket costs and all travel, lodging and other related expenses. |
| 7.6 | SOW Payment Terms. Unless otherwise specified in this Agreement, gMed shall send an invoice (each, a “SOW Invoice“) to Client on a monthly basis for all applicable SOW Fees and SOW Expenses based on the SOW Services performed by gMed during the preceding month. For the avoidance of doubt, gMed shall have no obligation to issue a separate invoice to Client with respect to the Implementation Fee. Unless otherwise specified in the applicable Statement of Work, all amounts specified in a SOW Invoice are due upon the issuance of such SOW Invoice by gMed. Unless otherwise specified in the applicable Statement of Work, Client will pay each such SOW Invoice via electronic payment. Client hereby authorizes gMed to automatically charge Client’s bank, credit card or other account (the “Account“) designated under the Electronic Payment Authorization Form an amount equal to the sum of any outstanding SOW Fees and SOW Expenses owing to gMed pursuant to any SOW Invoice. Client shall not, under any circumstances: (i) revoke any authorization to charge the Account for any SOW Fees or SOW Expenses owing under this Agreement or any Statement of Work or (ii) contest any charges to the Account, which are made by gMed in accordance with this Agreement or any applicable Statement of Work. |
| 7.7 | Ownership. gMed will exclusively own all rights, title and interest in and to any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, training manuals, techniques and materials of any kind used or developed by gMed or its personnel in connection with performing the SOW Services (collectively “gMed Materials“), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Client will have no rights in the gMed Materials except as expressly agreed to in writing by the Parties in the Statement of Work. |
| 7.8 | Other Services. Nothing in this Agreement or any Statement of Work will be deemed to restrict or limit gMed’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. Client acknowledges that gMed may engage subcontractors to perform certain of the SOW Services. |
| 7.9 | Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Client will not recruit or otherwise solicit for employment any gMed employees without gMed’s express prior written approval. |
| 8. | Intellectual Property. |
| 8.1 | Client Intellectual Property. Client represents and warrants that none of the content, materials, designs, text, names, data or other information provided by Client, its Authorized Users and/or its Patients to gMed or gMed networks or systems with respect to the Products, the Transaction Documents or otherwise, including Client Data (collectively, “Client Content“), infringes or violates the intellectual property or other proprietary rights of gMed or any third party, and gMed shall have no liability for any claims arising out of Client Content, including those claims based on infringement. Further, Client and its Authorized Users grant to gMed a nonexclusive license to use Client Content, as well as any trade names and/or trademarks of Client, to the extent necessary for gMed to provide the Products, the Additional Services and the SOW Services (which includes, without limitation, the right to make copies, create illustrations, display personal and/or corporate name(s), and display other Client Content). Nothing in this Section 8.1 shall be deemed to limit gMed’s rights under Section 12.4 of these Terms and Conditions or under the Business Associate Addendum. |
| 8.2 | Restrictions. Client acknowledges that in providing the Products, the Additional Services, and the SOW Services, gMed utilizes: (i) the gMed name, the gMed logo, the gmed.com and other domain names, the product names associated with the Products and other trademarks; (ii) certain information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, website content, visual interfaces, interactive features, graphics, compilations, computer code, website elements, Written Documentation, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (which together with the Products shall be collectively referred to as “gMed IP“) and that the gMed IP is covered by intellectual property rights owned or licensed by gMed (“gMed IP Rights“). Except as otherwise expressly permitted herein, Client and its Authorized Users shall not, nor will they assist or encourage anyone else to: (i) sell, license, distribute, publicly perform or display, transmit, edit, adapt, modify, copy, translate or make derivative works based on the gMed IP; (ii) disassemble, reverse engineer, or decompile any of the gMed IP; or (iii) create Internet “links” to or from the Products, or “frame” or “mirror” any of gMed’s content which forms part of the Products (other than on Clients’ own internal intranets). Additionally, Client and its Authorized Users are not entitled to: (i) sell, grant a security interest in or make or transfer reproductions of the Products to other parties in any way, nor to lease or license the Products to others without the prior written consent of gMed; (ii) emulate or redirect the communication protocols used by the Products; (iii) use or access the Products, the SOW Services or Additional Services in order to build a competitive product or service, (iv) copy any features, functions or graphics of the Products, SOW Services or Additional Services or (v) exploit the Products or any of its parts for any commercial purpose without gMed’s express written consent. Nothing in the Transaction Documents shall be construed to give Client or its Authorized Users any right to inspect, possess, use, or copy the source code (or, with respect to the Subscription Services and other Hosted Software, the object code) used to create or constituting the Products. Neither Client nor its Authorized Users shall apply any process, technique, or procedure designed to ascertain or derive the source code of the Products, or attempt to do any of the foregoing. Client shall not make any copies of any Products. Client shall not alter, change or remove any proprietary notices or confidentiality legends placed on or contained within the Products. |
| 8.3 | Ownership and Reservation of Rights. Other than as expressly set forth in the Transaction Documents, no license or other rights in the gMed IP Rights are granted to Client or its Authorized Users, and all such rights are hereby expressly reserved by gMed. Additionally, and for avoidance of doubt, as between gMed and Client, gMed shall at all times retain sole and exclusive ownership of, or, as applicable, sole and exclusive rights as a licensee or sublicensee of, all of its copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property rights with respect to the gMed IP, including, without limitation, all of the proprietary material provided and/or displayed by gMed at the Products, affiliated web sites, extranet, marketing materials or otherwise. Client acknowledges and agrees that the gMed IP may contain certain licensed materials and gMed’s licensors may independently protect their rights in the event of any violation of the Transaction Documents. |
| 9. | Authorized User Content. |
| 9.1 | General. The Subscription Services may now or in the future permit Authorized Users to post or link media, text, audio and video recordings, photos, graphics, commentary or any other content (collectively, “Authorized User Content”), and to host and/or share such Authorized User Content. Authorized User Content is not controlled by gMed. gMed makes no representations that any Authorized User Content will remain available via the Subscription Services in any way and may remove Authorized User Content in its sole discretion. Client shall cause each of its Authorized Users to comply with the terms of this Agreement. |
| 9.2 | Representations and Warranties Regarding Authorized User Content. Client shall be responsible for any Authorized User Content and the consequences of its Authorized Users posting such Authorized User Content. In connection with Authorized User Content, Client, on behalf of itself and its Authorized Users, affirms, represents, and warrants that: (i) each Authorized User owns, or has the necessary licenses, rights, consents, and permissions to use, and to grant gMed the right to use such Authorized User’s Authorized User Content, under all patent, trademark, copyright, or other proprietary rights in and to any and all of such Authorized User’s Authorized User Content, and to reproduce and enable inclusion and use of such Authorized User Content in the manner contemplated by this Agreement, and (ii) gMed’s use of such Authorized User Content pursuant to this Agreement, does not and will not: (a) infringe upon, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation. |
| 9.3 | Prohibited Uses of Authorized User Content. The Client agrees that it shall cause its Authorized Users to not publish, post, submit, transmit through or otherwise make available through the Subscription Services: (i) any falsehoods or misrepresentations that could damage gMed or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner. |
| 9.4 | Non-gMed Content Disclaimer. The Client on behalf of itself and its Authorized Users acknowledges and agrees that gMed does not endorse any Authorized User Content or other third party content (together, the “Non-gMed Content“) or any opinion, recommendation, or advice expressed therein. Under no circumstances will gMed be liable in any way for or in connection with the Non-gMed Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-gMed Content, any intellectual property infringement with regard to any Non-gMed Content, or for any loss or damage of any kind incurred as a result of the use of any Non-gMed Content posted, emailed or otherwise displayed or transmitted through the Subscription Services. |
| 9.5 | Non-Monitoring of Non-gMed Content. gMed does not control the Non-gMed Content posted by Authorized Users or otherwise made available by other persons and does not have any obligation to monitor such Non-gMed Content for any purpose. gMed, nonetheless, reserves the right, in its sole discretion, to monitor the Non-gMed Content but assumes no responsibility for the Non-gMed Content, no obligation to modify or remove any inappropriate Non-gMed Content, and no responsibility for the conduct of the Authorized User submitting any such Non-gMed Content. |
| 9.6 | Removal of Non-gMed Content. gMed shall have the right (but not the obligation), in its sole discretion, to remove or to refuse to post any Non-gMed Content that is available on the Subscription Services in whole or in part at any time, if, gMed determines that such Non-gMed Content is prohibited by this Agreement. |
| 10. | Remedies for Breach of Client’s Obligations. If Client or any of its Authorized Users fails to pay any Fees when due or otherwise materially breaches any of its or their obligations under this Agreement or any other Transaction Document, gMed shall be permitted, at its sole discretion, to do any or all of the following (it being understood that such remedies are not exclusive of one another or any other remedies gMed may have under this Agreement or at equity or law): (i) terminate each of the Transaction Documents and any license or other right granted to Client with respect to the Products without notice, in which case all Fees, SOW Fees and SOW Expenses incurred prior to the date of termination shall remain due and owing to gMed; (ii) temporarily suspend Client’s and its Authorized Users’ access to the Subscription Services without notice during which time the Fees and SOW Fees shall continue to accrue and be due and owing; (iii) for unpaid Fees, SOW Fees and SOW Expenses, assess late fees as provided in Section 3.7; and/or (iv) collect from Client reimbursement for all costs, including attorneys’ fees and expenses and costs, incurred by gMed in collecting any Fees, SOW Fees, SOW Expenses or other monies owed to it by Client, or otherwise enforcing its rights under the Transaction Documents. |
| 11. | Business Associate Addendum. The Parties acknowledge and agree that Client is a Covered Entity and gMed is a Business Associate under HIPAA and each Party shall comply with the Party’s respective obligations under HIPAA. Without limiting the foregoing, each Party shall comply with the Business Associate Addendum attached to these Terms and Conditions as Exhibit A (the “Business Associate Addendum“). The Business Associate Addendum is hereby incorporated into this Agreement. |
| 12. | Confidentiality. |
| 12.1 | Definition of Confidential Information. “Confidential Information” shall mean the Products source and object code, information which concerns the management and business of gMed, the contents and terms of the Transaction Documents, the business relationships and affairs of gMed, the internal policies and procedures applicable to gMed’s personnel and the formulation of strategies and policies by gMed. It also includes displays, designs, descriptions, procedures, formulas, discoveries, inventions, specifications, drawings, sketches, models, samples, codes, improvements, concepts, ideas and past, present and future research, development, business activities, products or services and any other information provided by gMed to Client regardless of whether it is identified as confidential at the time of disclosure. “Confidential Information” excludes the information explicitly excluded under Section 12.3. |
| 12.2 | Confidential Information Terms. Except as expressly permitted in the Transaction Documents, Client agrees to hold gMed’s Confidential Information in strict confidence. Notwithstanding the above, Client may disclose gMed’s Confidential Information upon the order of any competent court or government agency; provided that prior to disclosure, to the extent possible, Client shall inform gMed of such order and shall reasonably cooperate with the efforts of gMed, at gMed’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 gMed shall be entitled to injunctive relief to restrain any such breach, threatened or actual without the necessity of posting a bond or other security. |
| 12.3 | 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 Client, (ii) Client, through competent evidence, can demonstrate knowledge prior to disclosure, (iii) is disclosed to Client by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality or (iv) is independently developed by Client without reference to gMed’s Confidential Information as evidenced by the written records of Client. |
| 12.4 | De-Identified Information. Notwithstanding anything to the contrary in the Transaction Documents, Client acknowledges and agrees that gMed (i) may use Client Data to create de-identified data in accordance with the HIPAA de-identification requirements; (ii) may use, create, sell, provide to third parties, and otherwise exploit Client Data provided same has first been de-identified in accordance with HIPAA and (iii) owns all right, title and interest in such de-identified Client Data and any data, information and material created by gMed with such de-identified Client Data. |
| 12.5 | Feedback. If Client or any Authorized Users inform gMed of any errors, difficulties or other problems with the Products, or provide any feedback or make any suggestions as to changes or modifications to the Products, including beta or other in-development versions of the Products (collectively, “Feedback“), then gMed shall own all right, title and interest in that Feedback. Client hereby irrevocably assigns and agrees to assign all of its right, title and interest in and to the Feedback to gMed. To the extent Client is unable to assign any of its rights in the Feedback to gMed, Client hereby grants to gMed a perpetual, irrevocable, worldwide 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. The Feedback shall be treated as gMed’s Confidential Information and gMed shall have the unrestricted right to use and disclose the Feedback for any purpose. |
| 13. | Warranties & Disclaimers. |
| 13.1 | Warranties. |
| 13.1.1 | Client represents and warrants that it has the legal power and requisite authority to enter into the Transaction Documents to which it is a party. |
| 13.1.2 | Client represents and warrants that all claims for its services or products will only be submitted in accordance with all applicable laws, rules and regulations (including the False Claims Act and similar state laws). |
| 13.1.3 | CLIENT HEREBY AGREES AND ACKNOWLEDGES THAT GMED IS IN NO WAY ACTING AS A MEDICAL PROVIDER WITH RESPECT TO ANY PATIENT OR ANY OF CLIENT’S RELATED PARTIES AND PROVIDERS. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT THE TREATMENTS, PROCEDURES, INFORMATION, MEDICATIONS, PRODUCTS AND OTHER MATTERS REFERENCED BY THE PRODUCTS, THE ADDITIONAL SERVICES, AND/OR THE SOW SERVICES ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, PROCEDURE, INFORMATION, PRODUCT OR MEDICATION AND THAT THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH THE PHYSICIANS AND OTHER HEALTHCARE PROFESSIONALS TREATING SUCH PATIENT. |
| 13.1.4 | CLIENT UNDERSTANDS AND AGREES THAT ITS USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE PRODUCTS (INCLUDING RSS FEEDS) FROM A SOURCE OTHER THAN GMED IS AT ITS OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS OR ITS USERS’ PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. |
| 13.1.5 | Client represents and warrants that, to the extent required by applicable law, all Authorized Users are duly licensed by the appropriate professional board or agency in the state where Client is located and/or such individual practices and that Client shall provide evidence of such licensing upon reasonable request. At any time that Client or its Authorized Users cease to be duly licensed or authorized to the extent required by applicable law, Client shall immediately so inform gMed, and such unlicensed party shall immediately cease accessing and using the Products. |
| 13.2 | Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE TRANSACTION DOCUMENTS, GMED MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GMED HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCTS, ANY SOFTWARE OR FEATURES IN CONNECTION WITH THE PRODUCTS, THE ADDITIONAL SERVICES, AND SOW SERVICES, INCLUDING, WITHOUT LIMITATION, ANY TREATMENTS, PROCEDURES, INFORMATION, DATA, PRODUCTS, MEDICATIONS AND OTHER MATTERS REFERENCED BY THE PRODUCTS, REMAINS WITH THE CLIENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GMED EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE PRODUCTS AND ANY SOFTWARE, GOOD(S), INFORMATION, DATA OR MATERIALS PROVIDED BY GMED AS PART OF THE PRODUCTS, ADDITIONAL SERVICES, OR SOW SERVICES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PRODUCTS, THE GMED IP, AND ANY ADDITIONAL SERVICE OR SOW SERVICE IS 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 PRODUCTS 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. GMED DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING (A) THE USE OR THE RESULTS OF THE USE OF ITS PRODUCTS, 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 THE PRODUCTS, ADDITIONAL SERVICES OR SOW SERVICES. ANY CLINICAL INFORMATION PROVIDED BY THE PRODUCTS, ADDITIONAL SERVICES AND SOW SERVICES IS INTENDED AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, THE KNOWLEDGE, SKILL AND JUDGMENT OF AUTHORIZED USERS OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION OR OTHER TREATMENT SHOULD NOT BE CONSTRUED TO INDICATE THAT THE DRUG OR DRUG COMBINATION OR OTHER TREATMENT IS SAFE, APPROPRIATE OR EFFECTIVE IN ANY GIVEN PATIENT. GMED IS NOT A HEALTH PLAN, HEALTH CARE PROVIDER OR PRESCRIBER. NOTHING WILL BE CONSTRUED AS A GUARANTEE OR WARRANTY BY GMED THAT ANY OR ALL FEES BILLED BY CLIENT OR ON CLIENT’S BEHALF (INCLUDING CO-PAYMENTS, DEDUCTIBLES AND COINSURANCE) WILL BE COLLECTED OR COLLECTIBLE, IN WHOLE OR IN PART. CLIENT ACKNOWLEDGES AND AGREES THAT GMED IS NOT RESPONSIBLE FOR PAYMENT OR COLLECTION OF ANY CLAIMS SUBMITTED BY CLIENT OR ON CLIENT’S BEHALF UNDER ANY CIRCUMSTANCES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GMED DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION OF OR ACCESS TO THE PRODUCTS, ITS WEBSITES AND THE CONTENTS THEREOF, SERVICE ELEMENTS OR RELATED PRODUCTS. CLIENT ASSUMES THE ENTIRE RISK WITH RESPECT TO THE PERFORMANCE AND RESULTS IN CONNECTION WITH THE ADDITIONAL SERVICE, SOW SERVICE AND CLIENT’S USE OF THE PRODUCTS IN CONNECTION WITH CLIENT’S HARDWARE. GMED SHALL NOT BE LIABLE FOR ANY DAMAGE CAUSED BY THE INTERACTION OF THE PRODUCTS WITH ANY DEVICE OR ANY INFORMATION TECHNOLOGY INFRASTRUCTURE OF CLIENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER GMED 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 PRODUCTS OR ANY FEATURES OR PRODUCTS IN CONNECTION WITH THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. GMED MAKES NO GUARANTIES, REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE COMPLETENESS OR ACCURACY OF THE REGISTRY INFORMATION PROVIDED PURSUANT TO THE REGISTRY FUNCTIONALITY IN THE PRODUCTS. CLIENT AND THE AUTHORIZED USERS ARE SOLELY RESPONSIBLE FOR ENSURING THAT THE APPLICABLE REGISTRY RECEIVES THE AUTHORIZED USERS’ REGISTRY INFORMATION. GMED MAKES NO GUARANTY OF ANY KIND THAT CLIENT OR ANY OF ITS AUTHORIZED USERS WILL RECEIVE ANY INCENTIVE PAYMENTS OR ANY OTHER GOVERNMENT FUNDS OR AVOID ANY GOVERNMENT IMPOSED PENALTIES AS A RESULT OF THE USE OF THE REGISTRY FUNCTIONALITY IN THE PRODUCTS. THE REGISTRY INFORMATION PROVIDED BY THE REGISTRY FUNCTIONALITY IN THE PRODUCTS IS NOT INTENDED AS LEGAL ADVICE AND ALL LEGAL INQUIRIES ABOUT TOPICS ADDRESSED BY THE REGISTRY FUNCTIONALITY IN THE PRODUCTS OR THE REGISTRY SERVICES SHOULD BE DIRECTED TO CLIENT’S LEGAL COUNSEL. GMED DISCLAIMS LIABILITY FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, DIRECTLY OR INDIRECTLY, RESULTING FROM CLIENT’S USE OF OR RELIANCE ON ANY INFORMATION PROVIDED BY THE REGISTRY FUNCTIONALITY IN THE PRODUCTS OR OTHERWISE RELATING TO SUCH SUBJECT MATTER. IF GMED PROVIDES ANY HARDWARE TO CLIENT THEN (I) SUCH HARDWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM DEFECTS OR NONINFRINGEMENT, (II) THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF SUCH HARDWARE REMAINS WITH THE CLIENT, (III) GMED EXPRESSLY DISCLAIMS ANY WARRANTY FOR SUCH HARDWARE, (IV) GMED HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO SUCH HARDWARE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM DEFECTS OR NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND (V) GMED FURTHER DISCLAIMS ANY LIABILITY FOR CLIENT DATA STORED ON ANY HARDWARE. |
| 13.3 | Limitations by Applicable Law. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THE TRANSACTION DOCUMENTS APPLY TO CLIENT TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH CLIENT AND ITS USERS ARE LOCATED. |
| 13.4 | Basis of the Bargain. CLIENT ACKNOWLEDGES AND AGREES THAT GMED HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN CLIENT AND GMED, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CLIENT AND GMED. CLIENT ACKNOWLEDGES AND AGREES THAT GMED WOULD NOT BE ABLE TO PROVIDE THE PRODUCTS, ADDITIONAL SERVICES OR SOW SERVICES TO CLIENT ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS. |
| 14. | Limitation of Liability; Indemnification. |
| 14.1 | Limitation of Liability. IN NO EVENT SHALL GMED’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS, ADDITIONAL SERVICES, SOW SERVICES AND/OR THE TRANSACTION DOCUMENTS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES ACTUALLY PAID BY THE CLIENT TO GMED UNDER THE TRANSACTION DOCUMENTS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. |
| 14.2 | Exclusion of Consequential and Related Damages. IN NO EVENT SHALL GMED OR ITS PRESENT AND FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY TO CLIENT, ITS USERS 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 GMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. |
| 14.3 | Limitation of Action. No action (regardless of form) arising out of the Transaction Documents may be commenced by Client against gMed more than two (2) years after the cause of action arose. |
| 14.4 | Indemnification. Client shall indemnify and hold harmless gMed and its affiliates, 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) the use or operation of the Products by Patients, Client and/or the Authorized Users, including, without limitation, any non-authorized use of Client’s user logins, (ii) a breach of any of the Transaction Documents by Client or any of its Authorized Users, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of Client Data, Registry Information or any other content or data introduced to the Products by any Authorized User, (iv) any Registry Information that is not provided to CMS or any other government agency in a timely and accurate manner, (v) violation of any applicable law, rule or regulation by Client or any of the Authorized Users, (vi) the diagnosis and/or treatment of any of Client’s Patients and/or (vii) the negligent acts or willful misconduct of Client or its personnel. |
| 14.5 | Sole Responsibility. Client agrees that the sole and exclusive responsibility for any medical decisions or actions with respect to a Patient’s medical care and for determining the accuracy, completeness or appropriateness of any billing, clinical, coding, diagnostic, medical or other information provided by the Products, Additional Services or the SOW Services resides solely with the Authorized Users or other professionals treating such Patient. gMed does not assume any responsibility for how such information is used. Client acknowledges and agrees that the Products, the Additional Services and the SOW Services do not “recommend,” “suggest,” or “advise” proper prescribing or other treatment decisions and that the responsibility for the medical treatment, and any associated decisions regarding billing for medical services, rests with the Authorized Users or other professionals treating such Patient and revolves around such health care provider’s judgment and such health care provider’s analysis of the Patient’s condition. |
| 15. | Term and Termination. |
| 15.1 | Product Term. “Product Term” means, unless terminated earlier or renewed as set forth herein, the period of time commencing on the Product Delivery Date for the applicable Product and ending on the Product Term End Date specified on the Order Form for such Product. Subject to the terms and conditions of this Agreement, each Product’s Product Term shall automatically renew for additional terms of one (1) year, ending on the next yearly anniversary of the Product Term End Date specified on the Order Form for the applicable Product, unless either Party provides at least ten (10) days’ written notice to the other Party of its intent not to renew such Product’s Product Term. Notwithstanding any other term of this Agreement to the contrary, no Product shall be used by Client or any of its Authorized Users after the expiration or termination of the Product Term for such Product. All Product Terms shall terminate upon the expiration or termination of this Agreement. For the avoidance of doubt, if no Product Term is specified for a Product then gMed may elect to determine the Product Term for such Product in its discretion. Notwithstanding anything herein to the contrary, gMed may, upon written notice to Client, terminate offering any Product or any portion thereof to Client, without offering replacement Products, or support and maintenance for any Product. In the event of a termination by gMed pursuant to the immediately prior sentence and Client has prepaid fees for such terminated Product beyond the effective termination date then Client will be entitled to a prorated refund of such prepaid fees. |
| 15.2 | Agreement Term. Unless terminated earlier as set forth herein, the initial term (the “Initial Term“) of this Agreement shall commence on the Contract Date specified on the Order Form and end on the Current Contract Term End Date specified in the Order Form. Subject to the terms and conditions of this Agreement, after the Current Contract Term End Date and each Renewal Term, this Agreement shall automatically renew for additional terms of one (1) year, ending on the next yearly anniversary of the Current Contract Term End Date (each such additional term, a “Renewal Term” and, collectively, with the Initial Term, the “Term“), unless either Party provides at least ten (10) days’ written notice to the other Party of its intent not to renew the Agreement. For the avoidance of doubt, if no Contract End Date is specified then gMed may elect to determine the Contract End Date in its discretion. |
| 15.3 | Termination. Client may terminate this Agreement: (i) in the event of a material breach of this Agreement by gMed, provided, that, Client provides written notice of such material breach to gMed and such breach remains uncured thirty (30) days after gMed’s receipt of such notice; or (ii) in accordance with the terms of the Business Associate Addendum. gMed may terminate each of the Transaction Documents: (i) as set forth in Section 10 of these Terms and Conditions; (ii) in accordance with the terms of the Business Associate Addendum, (iii) immediately if Client becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or (iv) at any time following the Initial Term upon thirty (30) days prior written notice to Client. |
| 15.4 | Outstanding Fees. Termination shall not relieve Client of the obligation to pay any fees or expenses accrued or payable to gMed prior to the effective date of termination. |
| 15.5 | Return of Medical Records. gMed may store various forms of information for the Client that meet the definition of a medical record in many states (the “Medical Records“). To ensure the proper transfer of the Medical Records, the following policies shall apply: (i) Prior to the termination of this Agreement, the Client may obtain a copy of the Medical Records stored in the Hosted Software by providing gMed with a written request for such records; (ii) In the event of the termination of this Agreement then the Client may obtain a copy of the Medical Records stored in the Hosted Software by providing gMed with a written request for such records within fifteen (15) days of the effective date of such termination; (iii) If the Client is a multi-physician group and one of the physicians in such group has terminated its relationship with such group, and the Client requests in writing that Medical Records stored in the Hosted Software be transferred to such physician and provides a written list of Patients of such physician to gMed (the “Applicable Patients“), then gMed will provide a copy of the records of the Applicable Patients (the “Applicable Patient Records“) to the Client or the departing physician as directed in writing by the Client. The Client shall have the burden of determining whether the departing physician is entitled to a copy of the Applicable Patient Records. Subject to the terms and conditions of this Section, gMed shall not be required to transfer any Applicable Patient Records to a departing physician until the Client directs gMed to transfer such Applicable Patient Records and gMed determines that the transfer complies with applicable law. gMed shall not be responsible for transfers of Applicable Patient Records to persons or entities that gMed determines in good faith to be entitled to receive the Applicable Patient Records regardless of the accuracy of such determination; (iv) If the Client (including an authorized representative of the Client) is unavailable for any reason to give gMed written direction as to how to process a Medical Records transfer request, after a reasonable attempt to contact the Client, gMed shall be permitted to transfer the Medical Records to any third party requesting the Medical Records in writing if such third party provides gMed reasonable written evidence that it has the legal right to request and obtain such Medical Records under applicable law; and (v) In the event of a merger or sale of the Client, gMed will transfer a copy of the Client’s Medical Records stored in the Hosted Software to the Client’s successor or acquirer if requested in writing by the Client. In no event shall gMed be responsible for transfers of Medical Records to persons or entities that gMed determines in good faith to be entitled to receive the Medical Records regardless of the accuracy of such determinations. The provision of any Medical Records (including any Applicable Patient Records) by gMed under this Section 15.5 shall be contingent upon the payment to gMed of a non-refundable fee in such amount as determined by gMed with respect to each request for any records pursuant to this Section 15.3. Subject to the requirements of this Section 15.5, gMed shall transfer the applicable records in such format as is determined reasonable by gMed. The transferee of any records under this Section 15.5 shall be responsible for the cost of any disk drives or other media used by gMed for the transfer of such records as well as shipping and handling for the transfer of such disk drives or other media to such transferee. Any recipient of any records as a result of a transfer of records under this Section 15.5 shall indemnify and hold gMed harmless from, any liability, damage, loss, cost or expense (including reasonable attorneys’ fees) arising out of or related to the transfer of such records and gMed shall have the right to require any such recipient to agree in writing to such requirement as a condition to any transfer of records. This indemnity shall survive the expiration or earlier termination of this Agreement. Notwithstanding the foregoing, after the thirty (30) day period commencing on the effective date of termination or expiration of this Agreement, gMed shall have no obligation to maintain any copies of or provide any copies of the Medical Records (including any Applicable Patient Records), except as otherwise required by applicable law. |
| 15.6 | Effect of Termination. Upon termination or expiration of this Agreement for any reason, the License and Subscription Service Authorization shall terminate and Client shall not use or access, directly or indirectly, the Products or any other gMed IP. If Client has any copies of any gMed IP, Client shall either destroy or return to gMed all such copies along with a certificate signed by Client that all such copies have been either destroyed or returned, respectively, and that no copy or any part of any gMed IP has been retained by Client in any form. Termination of this Agreement for any reason shall not affect gMed’s right to recover damages for events occurring before termination. In the event either Party provides written notice of termination of any of the Transaction Documents to the other Party in accordance with the applicable Transaction Document, gMed shall have the right to automatically charge Client’s bank, credit card or other account designated under the Electronic Payment Authorization Form, an amount equal to the sum of any outstanding Fees, SOW Fees, SOW Expenses or other amounts owed to gMed plus, to be held as a deposit, an amount reasonably estimated by gMed to cover any Fees, SOW Fees or SOW Expenses, which are anticipated to be due and owing for the period commencing on the date of such notice through the termination date (which deposit shall be credited back to Client subsequent to termination to the extent the actual Fees, SOW Fees and SOW Expenses due and owing for such period are less than the amount of such deposit). Client shall not, under any circumstances: (i) revoke any authorization to charge Client’s bank, credit card or other account for any Fees incurred or to reasonably anticipated to be incurred during the above-referenced termination period or (ii) contest any charges to Client’s bank, credit card or other account, which are made by gMed in accordance with any of the Transaction Documents. |
| 15.7 | Survival. Sections 1, 3.4, 3.6, 3.16, 4.2, 4.4, 7.7, 7.9, 8, 9, 10, 11, 12, 13, 14, 15 and 16, as well as the terms of Exhibit D, shall survive the expiration or termination of this Agreement for any reason. |
| 16. | General Provisions. |
| 16.1 | 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. |
| 16.2 | 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, including, but not limited to, third party rights for Client’s Patients. |
| 16.3 | Notices. Any notice required by this Agreement or given in connection with therewith, shall be in writing and shall be given (i) if to gMed, to gMed, Inc., 3600 FAU Blvd., Suite #202, Boca Raton, FL 33431, Attention: Chief Financial Officer with a copy sent to gMed, Inc., 3600 FAU Blvd., Suite #202, Boca Raton, FL 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 Client, to the Client’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. |
| 16.4 | 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. |
| 16.5 | Federal Government End Use Provisions. gMed provides the Products for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Products include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). |
| 16.6 | Force Majeure. gMed 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 Products, the Additional Services or the SOW Services (each, a “Force Majeure Event“). |
| 16.7 | 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. |
| 16.8 | Assignment. Neither Party may assign any of its rights or obligations hereunder or under any other Transaction Document, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, gMed shall be permitted to assign each of the Transaction Documents: (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 16.8 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. |
| 16.9 | Governing Law. 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. |
| 16.10 | 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 Broward 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. |
| 16.11 | 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. |
| 16.12 | Third Party Arrangements. Client acknowledges and agrees that it shall be solely responsible for performance of all of its duties, obligations, and covenants arising under the Transaction Documents. In the event that Client enters into an arrangement with any other individual or entity to fulfill all or any part of its payment obligations pursuant to the Transaction Documents (“third party arrangement“), Client represents and warrants that any such third party arrangement shall not affect the obligations of Client to gMed pursuant to the Transaction Documents. Client further represents and warrants that any such third party arrangement shall be in compliance at all times with all applicable federal, state, and local laws, regulations and ordinances including, without limitation, the Medicare and Medicaid Anti-Fraud and Abuse Amendments to the Social Security Act and the Stark Law. Client acknowledges and agrees that gMed is under no obligation to accept any payment from any third party, which is unsatisfactory to gMed in its good faith business judgment. The Client agrees that it shall be responsible for promptly reimbursing gMed for all fees required by the American Medical Association or other similar organization to be paid by gMed to such organization relating to the Client and its Patients, employees, representatives, consultants, contractors or agents use of the Products. |
| 16.13 | Entire Agreement and Construction. The Transaction Documents constitute the entire agreement between the Parties as to the Products, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning such Products. For the avoidance of doubt, any obligations of Client that accrued prior to the Contract Date remain in full force and effect. 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 submitted by Client to gMed be deemed binding upon gMed. |
| 16.14 | 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. |
| 16.15 | Headings. Headings used in each of the Transaction Documents are provided for convenience only and shall not be used to provide meaning or intent. |
| 16.16 | Due Execution. Client acknowledges that gMed shall not be deemed bound by this Agreement, any Addendum thereto, any Statement of Work thereunder or any other Transaction Documents requiring execution unless and until the same shall have been duly executed by an authorized representative of gMed and Client. |
| 16.17 | Audit. Client shall maintain for a period of three (3) years after the end of the year to which they pertain, complete records regarding its use of Products under this Agreement and compliance with this Agreement. Upon reasonable prior notice, gMed will have the right, exercisable not more than once every twelve (12) months, at gMed’s expense, to examine such books, records and accounts during Client’s normal business hours to verify that all Fees have been duly accounted for and paid and that Client is otherwise in compliance with this Agreement. In the event such audit discloses an underpayment or overpayment of Fees due hereunder, Client will promptly remit the amounts due to gMed. In the event such audit discloses an underpayment of more than five percent (5%) of the amounts payable by Client to gMed for the period audited, Client shall reimburse gMed for the cost of such audit, in addition to the amount of any underpayments and related late charges. |
Exhibit A – Business Associate Addendum
| I. | GENERAL PROVISIONS
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| II. | OBLIGATIONS OF GMED
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| III. | OBLIGATIONS OF THE CLIENT
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| IV. | TERMINATION OF THIS AGREEMENT
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Exhibit B – Support And Maintenance
| 1. | SUPPORT AND MAINTENANCE FOR LICENSED SOFTWARE |
| 1.1 | Error Correction. If there is a Software Error in Maintenance Eligible Software and Client provides gMed with a Detailed Issue Description of such Software Error then gMed shall, at gMed’s option, use commercially reasonable efforts to repair such Software Error or replace the Maintenance Eligible Software; provided, that (i) the Maintenance Eligible Software has been implemented and operated in accordance with all instructions supplied by gMed, (ii) Client notifies gMed in writing of such Software Error within ten (10) days of the appearance thereof, and (iii) Client has promptly and properly installed all Fixes, upgrades, updates, and enhancements made available by gMed to Client with respect to such Maintenance Eligible Software. THE REMEDIES SET OUT IN THIS SECTION 1.1 ARE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR A SOFTWARE ERROR. Notwithstanding any other provisions of this Agreement to the contrary, gMed shall have no obligations under this Section 1.1 if a Software Error is due to any of the following: (i) Misuse of the Maintenance Eligible Software, (ii) modification of the Maintenance Eligible Software that is not contracted with or expressly authorized in writing by gMed, (iii) failure by Client to utilize compatible computer, networking hardware and software with the Maintenance Eligible Software, or (iv) any change in applicable operating system software that is not approved in writing by gMed. |
| 1.2 | Errors not Caused by the Maintenance Eligible Software. If gMed believes that a problem reported by Client is not a Software Error and gMed notifies Client of such belief then Client may (i) instruct gMed to proceed with further problem determination at Client’s possible expense as set forth below, or (ii) instruct gMed to stop further work. If Client requests gMed to continue troubleshooting any error that is not a Software Error, Client shall pay gMed consulting fees at gMed’s then-current time and material rates, plus reimbursement of actual expenses incurred in connection therewith. |
| 1.3 | Telephone Support. As part of Support and Maintenance, gMed shall provide Client during Normal Business Hours with telephone help desk services with respect to the Maintenance Eligible Software. |
| 1.4 | Updates. Subject to Section 6 of the Terms and Conditions, gMed shall provide Client with updates of Maintenance Eligible Software which gMed makes generally available to substantially all other users of such Maintenance Eligible Software. Client agrees to provide access to Client’s hardware when such update is scheduled. |
| 1.5 | Technical Contacts. Each party shall designate one of its employees as its principal technical contact for the other party for technical issues related to this Agreement. Each party may change its technical contact upon delivery of written notification to the other party. |
| 1.6 | Credits. gMed shall credit Client with 10% of the Support and Maintenance Fees (excluding subscriptions) paid by Client to gMed for the current Product Term for Support and Maintenance provided all Client employees using Licensed Software become Certified Users as determined by gMed and maintain such certification current within thirty (30) calendar days after the date of release of any Licensed Software upgrade or update. Client acknowledges and agrees that the credits contemplated by this Section 1.6 shall not be available if new Client employees fail to become Certified Users within thirty (30) days of the commencement of their employment with Client. Client shall promptly provide such information regarding its employees to gMed as gMed may request. gMed may change the criteria for being a Certified User or cease to provide the credit contemplated by this Section 1.6 in gMed’s discretion. |
2. SERVICE LEVELS FOR SUBSCRIPTION SERVICES
Commencing as of the later of (i) the Contract Date and (ii) the Product Delivery Date for gGastro Cloud, if the Subscription Services include a subscription to gGastro Cloud then gMed shall provide 99% availability for gGastro Cloud during each calendar month during the Term (the “Minimum Service Level“) except for: (a) planned down time, which gMed shall use reasonable commercial efforts to be outside of normal business hours (business days during 8:00 a.m. to 10:00 p.m., Eastern time) for which gMed gives reasonable notice on its website(s), by email or otherwise that gGastro Cloud will be unavailable; or (b) down time caused by circumstances beyond gMed’s reasonable control, including without limitation, a Force Majeure Event (as defined below), computer or telecommunications failures or delays involving hardware or software not within gMed’s possession or reasonable control, and network intrusions or denial of service attacks. If gMed fails to meet the Minimum Service Level for any calendar month during the Term as reasonably determined by gMed by reference to its server logs and other technical data, Client’s sole and exclusive remedy shall be for Client to receive a pro-rata decrease in its Fees for gGastro Cloud for the calendar month following the calendar month in which such deficiency occurs, up to the full amount of Client’s Fees for gGastro Cloud for such calendar month. The pro-rata decrease will be calculated so that a 1% deficiency from the Minimum Service Level equals a decrease that is equal to 1% of the Fees for gGastro Cloud payable with respect to the applicable calendar month. All such decreases shall be applied against Client’s account as a credit. To receive the credits described in this paragraph, Client must notify gMed of its credit request within ten (10) days from the end of the calendar month in which such deficiency occurred. Failure to comply with this requirement will forfeit Client’s right to receive a credit. Credits will be applied against amounts otherwise payable by Client after the date of such request and in no event shall gMed, as a result of a credit request, be required to refund any amounts previously paid by Client to gMed. This Section 2 shall not apply to any “beta” or similar in-development versions of gGastro Cloud that gMed may make available for evaluation purposes.
THIS SECTION 2 STATES THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND GMED’S SOLE AND EXCLUSIVE LIABILITY REGARDING THE UNAVAILABILITY OF ANY SUBSCRIPTION SERVICES.
Exhibit C
The following outlines Fees for certain services provided by gMed or its licensors as of the Contract Date, and are subject to change upon thirty (30) days written notice to Client.
| Type | Description | Price | Per |
|---|---|---|---|
| Faxes | Inbound / outbound fax pages beyond 700 per Subscriber / month on regular telephone line
Additional fax lines (first line included) |
$0.05
$15 |
Per page
Line per month |
| Patient Statements | Patient statements (includes postage if delivered via regular mail)* | $0.68 $0.26 $0.52 |
First Page Additional Pages Printed Paper Claims |
| On-line Bill Pay | Patient credit card payments via gPortal (excludes merchant credit card fees) | Merchant Fees Apply | |
| Gastroenterology Registries | Connection to Digestive Health Outcomes or GIQuIC Registries | Pass-through | |
| gPM-Ancillary Service Providers | gPM for Pathologists or Anesthesiologists | $0.40 | Per claim or ERA |
*Patient Statement and Printed Paper Claims pricing will be adjusted in accordance with U.S. Postal Service postage rate increases. Notification of these increases will be provided prior to any pricing change.
Exhibit D
American Medical Association
The Products may contain certain “Editorial Content” provided under license from the American Medical Association (“AMA”). “Editorial Content” means content from the print publication Current Procedural Terminology, Fourth Edition (“CPT Book“) and the data file(s) of Current Procedural Terminology (“CPT®”) including CPT® Standard, CPT® Enhanced and Developer’s Toolkit, all as available from the AMA (individually and collectively called “CPT Data File“) published by the AMA in the English language as used in the United States (collectively, “CPT“), a coding work of nomenclature and codes for reporting of healthcare services, together with (a) content from the data file published by the AMA of the International Classification of Diseases 9th Revision Clinical Modification Volume 1 (“AMA’s Version of ICD-9-CM“); (b) content from the data file published by the AMA of the International Classification of Diseases 10th Revision Clinical Modification and Procedure Coding System (“AMA’s Version of ICD-10- CM/PCS“); and (c) content from the data file published by the AMA of the Healthcare Common Procedure Coding System Level II (“AMA’s Version of HCPCS“).
Restrictions. Client acknowledges that its right to use the Editorial Content will be non-exclusive, non- transferable, for the sole purpose of internal use by Client in connection with the Products, within the United States of America. The Client shall not publish, distribute via the Internet or other public computer based information system, create derivative works (including translations), transfer, sell, lease, license or otherwise make available to any unauthorized party the Editorial Content. Client shall ensure that anyone with authorized access to the Products will comply with the foregoing restrictions. The provision of updated Editorial Content in the Products is dependent on continuing contractual relationship between gMed and the AMA, and neither gMed nor the AMA make any representations that the Editorial Content will continue to be available. The Client may not make any copies of the Editorial Content. All notices of proprietary rights relating to the Editorial Content, including trademark and copyright notices, must appear on all permitted back up or archival copies of the Products. If any of the terms of this Exhibit D are determined to violate any law or to be unenforceable, the remainder of the terms will continue in full force and effect. If Client violates any terms of this Exhibit D, Client’s rights to use the Editorial Content will terminate automatically. Client acknowledges and agrees that only Authorized Provider users of gGastro and gGastro Cloud shall use the Editorial Content.
WITHOUT LIMITING THE TERMS OF SECTION 13 OF THIS AGREEMENT, THE EDITORIAL CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY BY THE AMA, AND AMA WILL HAVE NO LIABILITY IN CONNECTION WITH THE EDITORIAL CONTENT, INCLUDING WITHOUT LIMITATION, LIABILITY FOR CONSEQUENTIAL OR SPECIAL DAMAGES, OR LOST PROFITS FOR SEQUENCE, ACCURACY, OR COMPLETENESS OF DATA, OR THAT IT WILL MEET THE END USER’S REQUIREMENTS, OR ANY CONSEQUENCES DUE TO USE, MISUSE, OR INTERPRETATION OF INFORMATION CONTAINED OR NOT CONTAINED IN EDITORIAL CONTENT.
Client hereby acknowledges the following: CPT is copyrighted by the AMA and that CPT is a registered trademark of the AMA.
Applicable FARS/DFARS Restrictions Apply to Government Use.
U.S. Government Rights
This product includes CPT which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Medical Association, AMA Plaza, 330 N. Wabash Ave., Suite 39300, Chicago, IL 60611-5885. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
HEALTH LANGUAGE
If any of the gMed (“Sublicensor“) products provided by gMed to Client (“Sublicensee“) include any run time software of Health Language, Inc. (“HL“) then the following additional terms shall apply:
1. SUBLICENSE. Health Language, Inc. (HL) hereby grants a limited nonexclusive and nontransferable sublicense for certain HL technology (the “HL Technology“) through the Sublicensor to the end-user Sublicensee subject to a written agreement between Sublicensor and Sublicensee. Sublicensee acknowledges that HL owns the HL Technology subject to the sublicense.
2. PROTECTIONS AND NONDISCLOSURE. Sublicensee agrees that it shall protect all intellectual properties in the HL Technology, including without limitation, patents, copyrights, and trade secrets. Further, Sublicensee shall not disclose any HL Technology to any third parties, nor reverse engineer any HL Technology.
3. WARRANTY DISCLAIMER. ANY USE BY SULICENSEE OF THE HL TECHNOLOGY IS AT SUBLICENSEE’S OWN RISK. THE HL TECHNOLOGY IS PROVIDED FOR USE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HEALTH LANGUAGE, INC. AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. HEALTH LANGUAGE, INC. IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE HL TECHNOLOGY.
4. LIMITATION OF LIABILITY. NO LIABILITY FOR DAMAGES. IN NO EVENT SHALL HEALTH LANGUAGE, INC. OR ITS SUPPLIERS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF THE USE OR INABILITY TO USE ANY PRODUCT AND HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HL’S CUMULATIVE LIABILITY ARISING OUT OF THIS SUBLICENSE EXCEED THE AMOUNTS ACTUALLY PAID BY SUBLICENSEE TO SUBLICENSOR OR HL FOR THE HL TECHNOLOGY PURSUANT TO THIS SUBLICENSE.
QLIKView
If any of the gMed products provided by gMed to Client include any software of QlikTech Inc. (each a “QlikTech Product“) then the following additional terms shall apply:
1. Client is prohibited from using the QlikTech Products in any way other than integrated with the data structures of the Products containing such QlikTech Product. Client may under no circumstances whatsoever use the QlikTech Products independently or separated from the Products containing such QlikTech Product.
2. Client has no ownership rights in any Products. Ownership of the QlikTech Products and the copyright and all other intellectual property rights in and associated with the QlikTech Products shall remain at all times with QlikTech or its licensors. Client shall not have any rights in the trademarks, services marks or designs of QlikTech, all of which remain the exclusive property of QlikTech.
3. Client shall not sub-license, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works of any Products containing QlikTech Products or any part thereof.
4. Client shall not reverse engineer, decompile, disassemble, translate, or adapt any Products containing QlikTech Products, nor shall Client attempt to create the source code from the object code of any Products containing QlikTech Products software.
5. Client shall have no right to grant sub-licenses or to assign the benefit of burden of this Agreement in whole or in part. Further, Client shall discontinue use and destroy or return all copies of the any Products containing QlikTech Products on termination of this Agreement.
