THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT AND CONSTITUTES THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE (AS DEFINED BELOW) PROVIDED BY SMART MARKET DENTAL, INC., A PENNSYLVANIA CORPORATION (THE “COMPANY”). BY CLICKING THE “I ACCEPT” BUTTON, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING THE HIPAA BUSINESS ASSOCIATE AGREEMENT ATTACHED TO THIS AGREEMENT AS EXHIBIT A.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU,” “YOUR,” AND “CLIENT” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY (HEREINAFTER, COMPANY AND YOU, YOUR OR CLIENT, SHALL BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND TOGETHER AS THE “PARTIES”). IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST CHOOSE NOT TO CLICK ON THE “I ACCEPT” BUTTON AND MAY NOT USE THE SERVICE.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following capitalized terms will have the following respective meanings for the purposes of this Agreement:
a. “Agreement” means this Software as a Service Agreement and any materials specifically incorporated by reference herein.
b. “Billing Period” means this period of time detailed in any Documentation signed by the Client.
c. “Client Data” means any data, information, trademarks, logos, files, images, text, or other material that You or any Users provide or submit to the Service in the course of using the Service.
d. “Documentation” means subscription forms, program documentation, user manuals, handbooks, and other materials describing the use, design, installation, operation and maintenance of the Service made available by the Company.
e. “Effective Date” means the date of acceptance of this Agreement which date shall be the date upon which You click “I Accept”.
f. “Service” means the Company’s provision of access to the copyrighted Internet-based software-as-a-service application titled SMD Software, provided by the Company, including any new features or enhancements to the Service that are made available by Company to You during the Term of this Agreement (as defined in Section 13(a)).
h. “Users” means those individuals authorized by You and the Company to use the Service, and having user identifications and passwords registered under the name of such individuals.
2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, including, without limitation, Client’s timely payment of all fees, the Company hereby grants to Client for the Term of this Agreement (as defined under Section 12(a), the “Term” of this Agreement), a non-exclusive, non-transferable and non-assignable, non-sublicensable, worldwide, terminable (as specified in Article 13) license to use the Service solely for Client’s internal business operations (the “Purpose”) and subject to the terms and condition of this Agreement. Any new features or enhancements to the Service that are made available by the Company to the Client during the Term of the Agreement and any new service(s) subsequently purchased by Client will be subject to this Agreement.
a. INTERNET ACCESS. Client understands that Client must have or must acquire access to the Internet, provide all equipment necessary to maintain such connection, and obtain software that will access and display Web-based and Client-based content. The Company shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, Client uses in accessing the Internet to access the Service. Client understands that any Internet Access problems will cause performance issues using the Service and the Company provides no warranty in any such case.
b. SECURITY. Client shall provide adequate industry “best practice” standards to ensure reasonably secure access to the Internet, a remote computer network, and the Service provided by the Company.
c. USER COMPLIANCE. Client may allow Users to utilize the Service in connection with the Purpose and is responsible for the conduct of Users and their compliance with this Agreement. Client assumes all liability for any Breach of Unsecured Protected Health Information as required at 45 CFR § 164.410, including any Breach of Unsecured Protected Health Information caused by any individual Client employs or third parties with which Client works or consults that have access to patient calls.
d. PROVISION OF FUTURE SERVICES. Client acknowledges that Company may decide to provide Client with new features or enhancements to the Service during the Term of the Agreement in its sole discretion and agrees that the subscription to the Service hereunder is neither dependent on the delivery or availability of any future functionality nor any oral or written comments made by the Company regarding future functionality or features.
3. CLIENT OBLIGATIONS. Client agrees to abide by and uphold the obligations listed hereunder:
a. CLIENT CONDUCT. Client hereby agrees to comply with all applicable local, state, federal and foreign laws, treaties, regulations, and conventions in connection with its use of the Service. Client also agrees that Client shall not:
i. modify, make derivative works of, disassemble, decompile, or reverse engineer the Service;
ii. make any attempt to ascertain, derive, or obtain the source code of the Service;
iii. except as expressly provided in this Agreement or the Documentation, copy, reproduce, distribute, republish, display, post, transmit, frame or mirror any content or part of the Service or Documentation;
iv. build (1) a product or service that is competitive with the Service or (2) a product using similar features, functions, or graphics of the Service, by copying any aspect of the Service or misappropriating any of the Company’s intellectual property rights in order to do so;
v. copy any features, functions, or graphics of the Service;
vi. assist a third party in building, supporting, or copying products or services competitive to the Company by copying any aspect of the Service or misappropriating any of the Company’s intellectual property rights to do so;
vii. transmit, publish, or store (1) infringing, obscene, threatening, harmful, libelous, defamatory, or otherwise unlawful or tortious material, (2) material that violates third party privacy rights promotes bigotry, racism, or hatred, or (3) any material containing software viruses, worms, time bombs, Trojan horses, or other harmful or malicious computer code, files, scripts, agents, or programs;
viii. send any electronic communications from the Service that are unlawful, harassing, libelous, defamatory, or threatening;
ix. express or imply that the Company endorses Client’s electronic communications;
x. interfere with or disrupt the integrity or performance of the Service, or use the Service to menace or harass any person or cause damage or injury to any person or property; and
Client understands that any attempt to execute, or the execution of, any actions prohibited under this Section shall void the Company’s warranty obligations, and be grounds for immediate suspension or termination of this Agreement by the Company.
b. USER ACCESS. Except as otherwise set forth in this Agreement, Client hereby agrees that it shall neither make the Service available to any third-party nor license, sublicense, sell, resell, rent, lease, transfer, distribute, or assign the Service to any third-party. Client further understands and agrees that Client:
i. may designate only the number of Users allowed under this Agreement;
ii. is prohibited, as well as its Users, from sharing user identifications and passwords with any unauthorized users and must notify the Company if any such information becomes unsecured;
iii. must use all commercially reasonable efforts to prevent any unauthorized access to or use of the Service, Documentation and passwords or other logins, and notify the Company promptly of any such unauthorized use; and
iv. shall not use the Service or Documentation for the benefit of any third parties.
4. SERVICE AVAILABILITY.
a. DEFINING AVAILABILITY. During the Term, the Company will use commercially reasonable efforts to make the Service available at least 95% of the time during the Term of this Agreement (“Availability”), excluding when the Service is not available owing to an Exception (defined in Section 4(b) below).
b. SERVICE AVAILABILITY EXCEPTIONS. Downtime of the Service owing to any of the following events will not be included in calculating Availability (collectively, “Exceptions”):
i. Client’s or any of its Users’ failure to meet any minimum hardware or software requirements set forth in any specifications or Documentation provided by the Company;
ii. a lack of network availability between Client and the Company’s hosting servers or other network traffic problems, as network availability can involve numerous third parties and is beyond the control of the Company;
iii. any downtime caused by the Company’s internet provider or for any downtime that Client experiences because of Client’s own network connectivity issues;
iv. Client’s or User’s misuse of the Service, including use in violation of the terms and conditions of this Agreement;
v. Any downtime caused by or attributable to Client’s change or upgrade of any hardware or software resulting in a temporary incompatibility.
v. any Scheduled Downtime (defined in Section 4(c) below).
c. SCHEDULED DOWNTIME. From time to time the Company may need to schedule downtime for maintenance, upgrades, enhancement, or any other reason, during which the Service will not be available to Client (collectively, “Scheduled Downtime”). The Company may schedule such downtime at any time, but will endeavor to provide reasonable notice of any Scheduled Downtime and to conduct Scheduled Downtime outside of Client’s normal business hours.
d. UNAVAILABILITY PROCEDURE. If Client experiences a Service outage and is unable to access the Service, Client must notify the Company within five (5) business days of such outage through the process set forth in Section 5. The Company will use an internal system to measure the Service’s availability to Client. Client agrees this system will be the sole basis for resolution of any dispute that may arise regarding Availability.
e. CREDIT POLICY. If Availability is not met in any given month, and the proper notification/steps were taken by Client as outlined in section 4(d), then Client will receive a prorated credit towards future Service fees for that portion of the recurring Service fees corresponding to the amount of time in such month that Availability was not met.
5. TECHNICAL SUPPORT. To report a Service issue and/or to receive technical support, follow the instructions at http://______________________. The Company offers technical and customer support on a first-come, first-served basis. The Company’s technical support policies can be found at http://____________________________ and are subject to review and change at any time without notice.
6. BILLING AND PAYMENT.
a. ACCOUNT INFORMATION. Client agrees to provide the Company with accurate, complete and current billing and contact information, including the Client’s legal business name, street address, mailing address, email address, and telephone number. Client must promptly update this information should any changes occur. If Client’s information is false or fraudulent, the Company reserves the right to suspend or terminate Client’s access to the Service, including terminating this Agreement, in addition to any other legal remedies.
b. BILLING. Client agrees (i) to pay all fees pertaining to use of the Service, and (ii) to comply with all billing, payment and other terms and conditions as specified hereunder or in the Documentation. Client agrees to provide and purchase the Service from the Company with a valid and updated credit card or through an ACH transaction, and authorizes the Company to charge such credit card or initiate an ACH transaction for all Service. All payment obligations are non-cancelable and all fees paid are nonrefundable. Client shall reimburse the Company for reasonable expenses related to providing any on-site portion of the Service or related support.
c. TAXES. Client understands Client is responsible for paying all taxes associated with Client’s purchases hereunder and understands that Client may be invoiced for such taxes in accordance with Section 6(b). Client agrees to pay any such sales, value-added or other similar taxes imposed by applicable law. The Company is solely responsible for taxes assessable against it based on the Company’s income, property, and employees.
d. OVERDUE FEES. All amounts invoiced hereunder are due upon receipt. If the Company does not receive payment from Client within the thirty (30) days (“Final Payment Due Date”), the Company may at its sole discretion (i) charge late interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the Final Payment Due Date until the date paid, and/or (iii) suspend the Service until such outstanding balance is brought current.
e. FEE CHANGES. The Company reserves the right to introduce new fees during the Term of this Agreement or modify existing fees on the renewal of the Client’s Billing Period. The Company must provide at least thirty (30) days’ prior notice to Client before any new or modified fees are implemented. Any such new fees will be effective at the beginning of a future calendar month as designated in the notice provided or any such modified fees will be effective at the beginning of the billing period for the month following the month that notice was provided.
7. PROPRIETARY RIGHTS.
a. COMPANY INTELLECTUAL PROPERTY. The Company and its licensors, if any, retain all right, title and interest, including all intellectual property rights therein, in and to the Service, all software offered or provided access to under this Agreement, all the Company programs, and all Documentation and related materials. The Company retains all right, title and interest, including all intellectual property rights therein, to anything developed and delivered under this Agreement. Other than the license rights granted in this Agreement, Company does not convey to Client any other rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by the Company. Client shall not use the Service to upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including but not limited to rights of publicity and privacy) without first obtaining the permission of the owner of such rights.
CONFIDENTIAL INFORMATION. From time to time during the Term of this Agreement, either party may disclose (as the “Disclosing Party”) or make available to the other party (as the “Receiving Party”) confidential information, whether orally or in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall include business affairs, price and Client lists, marketing strategies, confidential intellectual property, trade secrets, third-party confidential information for which the Disclosing Party has an obligation of confidentiality, technology and technical information, and this Agreement. Additionally, the Company’s Confidential Information shall include the Service, its source code, the Documentation, the Aggregate Data, and any passwords and log-ins provided hereunder. The Client’s Confidential Information shall also include the Client Data. Each party acknowledges that a Disclosing Party’s Confidential Information constitutes such party’s valuable proprietary and confidential trade secrets, and that the unauthorized disclosure of such trade secrets or confidential information would cause great harm to the Disclosing Party. Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party of any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in while of in part, any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed pursuant to applicable federal, state or local law, regulation or a valid order issued by a court of governmental agency of competent jurisdiction. In the event of any conflict between this Section 8a. and Section 13 HIPAA Business Associate Compliance and the attached HIPAA Business Associate Agreement attached to this Agreement as Exhibit A, the HIPAA Compliance rules and requirements shall prevail.
9. WARRANTIES AND DISCLAIMERS.
a. COMPANY WARRANTIES. The Company warrants that (i) it has the right and power to enter into this Agreement, (ii) it will comply with any applicable laws and regulations pertaining to this Agreement, and (iii) the Service shall perform materially in accordance with the description provided by the Company and in any Documentation. Client’s sole remedy for the Company’s breach of the Section 9(a) warranty is for the Company to work to fix such Service performance issue and, if it cannot fix such Service performance issue within a commercially reasonable period of time, receive reimbursement of the amount that Client has paid to Company for one (1) month of Service.
b. CLIENT WARRANTIES. Client warrants that (i) it has the right and power to enter into this Agreement, and (ii) it will comply with any applicable laws and regulations pertaining to this Agreement.
i. THE EXPRESS WARRANTIES SET FORTH IN SECTION 9(a) ARE THE ONLY WARRANTIES MADE BY THE COMPANY WITH RESPECT TO THE SERVICE AND THIS AGREEMENT, AND ANY OTHER SOFTWARE, SERVICES, OR MATERIALS PROVIDED BY THE COMPANY. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR USE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE AND ALL CONTENT IS PROVIDED TO CLIENT STRICTLY ON AN “AS IS,” “AS AVAILABLE” BASIS. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT.
ii. THE COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICE BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (2) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (5) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (6) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
iii. CLIENT UNDERSTANDS THAT THE COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THEREFORE ACKNOWLEDGES AND AGREES THAT (1) THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, (2) THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS, (3) THE CLIENT WILL BE RESPONSIBLE FOR ALL ELECTRONIC COMMUNICATIONS, AND (4) THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE CLIENT DATA.
10. INDEMNITY. You agree to indemnify, hold harmless and defend SMD and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by SMD arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the SMD Software.
11. LIMITATION OF LIABILITY.
a. LIMITATION ON RECOVERABLE DAMAGES. EXCEPT AS PROVIDED IN SECTION 12(C), NEITHER PARTY (INCLUDING SUCH PARTY’S EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, LICENSORS, SUBLICENSEES, SUCCESSORS, ASSIGNS AND RELATED PARTIES) HAS ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING CLAIMS FOR BUSINESS INTERRUPTION AND LOSS OF PROFITS, REVENUE, ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, DATA, GOODWILL OR USE OF THE SERVICE), WHETHER BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. CAP ON DAMAGES. EXCEPT AS PROVIDED IN SECTION 12(C), THE COMPANY’S LIABILITY FOR ANY AND ALL CAUSES OF ACTION, CLAIMS AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO THE COMPANY BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION ACCRUED.
c. EXCLUSIONS FROM LIMITATIONS OF LIABILITY. Notwithstanding anything to the contrary herein, the limitations of liability contained in Section 12(a) and 12(b) shall not apply to: (i) damages arising out of or relating to a Party’s failure to comply with its confidentiality obligations under Section 8; (ii) damages arising out of either Party’s misappropriation of the other Party’s intellectual property or breach of a license grant in Section 2; (iii) either Party’s indemnification obligations under Section 11; or (iv) Client’s payment obligations to the Company under this Agreement.
12. TERM, SUSPENSION AND TERMINATION.
TERM. This Agreement shall take effect on the Effective Date and shall continue until either party notifies the other party written notice of intent to terminate at least thirty (30) days in advance before or unless this Agreement terminates as otherwise provided hereunder.
b. SUSPENSION. The Company shall not be liable to Client or to any other third party for any suspension of the Service under this Section 13(b), and any suspension by the Company under this Section 13(b) shall not excuse Client from Client’s obligations to make payment(s) under this Agreement. The Company may, upon written notice to Client at any time, remove Client Data or suspend Client’s access to and use of the Service for the occurrence of any of the following, all of which are prohibited hereunder:
i. the Company reasonably concludes that Client is using the Service to engage in denial of service attacks or spamming, or using the Service to engage in illegal activity or activity prohibited hereunder;
ii. the Company reasonably concludes that Client’s use of the Service is causing immediate, material and ongoing harm to the Company or others;
iii. the Company determines in its sole discretion that Client violated or continues to violate Sections 2, 3, 6(b), 7(a), 8, 15(a) or 15(g) of this Agreement; or
iv. for any reasons contained in Section 12(c).
c. TERMINATION. After written notice to the other party, this Agreement may be terminated:
i. by either party if the other party materially or persistently breaches this Agreement (other than a breach of Availability by the Company, for which Client’s sole remedy is stated in Section 4 and either that breach is incapable of remedy, or the breaching party fails to remedy that breach within a thirty (30) day period after receiving written notice thereof.
ii. by either party immediately if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; if the other party makes a general assignment for the benefit of creditors; if the other party has been dissolved, wound up, or liquidated; if a receiver, trustee, or similar agent is appointed with respect to any substantial portion of the property or business of the other party, or by the Company as provided in Section 14(a);
iii. by the Company if Client fails to make payments to the Company when due and the Company provides at least one written notice seven (7) days prior to effective termination;
iv. by either party for its convenience upon thirty (30) days’ written notice to the other party; or
v. by Client on thirty (30) days’ written notice if the Client decides not to accept an new fees pursuant to Section 6(e), in which case the Client shall have the right to receive a pro-rata refund of the license fees paid under this Agreement for the terminated portion of the Billing Period;
d. EFFECT OF TERMINATION. If this Agreement is terminated for any reason, all licenses granted to Client hereunder shall cease and Client shall cease all activities authorized hereby. If this Agreement is terminated by the Company as a result of a material breach under section 13(c)(i), by the Company for Client’s failure to make timely payments under Section 13(c)(iv), or Client for its convenience under Section 13(c)(v), then Client shall pay the Company the remaining fees owed for the then-current Billing Period, including, but not limited to, all fees owed hereunder and subscription fees for the terminated portion of the Billing Period.
e. In the event this Agreement is terminated for any reason, the Company shall make Client Data available to Client via the Service during the thirty (30) day period following termination notice, if Client so requests. If Client makes no such request, the Company shall have no obligation to maintain or provide any Client Data and reserves the right to remove or discard Client Data without notice to Client. The Company may store Client Data for an additional sixty (60) days and may, in exchange for a fee, permit Client access to the Service to retrieve Client Data. Client acknowledges and agrees that the Company still has no obligation to retain Client Data after such 60-day period and that Client data may be irretrievably deleted thereafter.
13. HIPAA BUSINESS ASSOCIATE COMPLIANCE. As You (the Company) are a Covered Entity (as defined by the HIPAA Rules) and SMD may create, receive, maintain, or transmit Electronic Protected Health Information (“EPHI”) or Personal Health Information (“PHI”) on your behalf, SMD is a Business Associate with regard to EPHI and PHI. As not all information received or maintained by SMD will be PHI or EPHI subject to the HIPAA Rules, this provision is only applicable regarding information that is received, maintained or created by SMD on behalf of a Covered Entity as defined by the HIPAA Rules and is PHI or EPHI but any information not protected by the HIPAA Business Associate Subcontractor Agreement set forth in Exhibit “A” will be protected by confidentiality provisions otherwise contained in this Agreement. With respect to any EPHI or PHI that SMD creates, receives, maintains or transmits on your behalf, the provisions of the HIPAA Business Associate Agreement, attached to this Agreement as Exhibit “A”, are incorporated herein and made part hereof as is set forth in length.
14. GOVERNING LAW; VENUE. The parties agree that this Agreement shall be deemed to have been made and entered into in Northumberland County and the Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced and governed under the laws of Pennsylvania without regard to conflict of laws principles. The parties hereby waive any objections to the jurisdiction and venue of the courts in or for Northumberland County, Pennsylvania or the Federal District Court for the Middle District of Pennsylvania, including any objection to personal jurisdiction, venue, and/or forum non-conveniens, in any proceeding and by either party to enforce its rights hereunder filed in or for Northumberland County, Pennsylvania or the Federal District Court for the Middle District of Pennsylvania. The parties agree not to object to any action filed by a party to remove any action filed by a party from a forum or court not located in Northumberland County, Pennsylvania or the Federal District Court for the Middle District of Pennsylvania.
15. GENERAL PROVISIONS.
a. ASSIGNMENT. Client shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign this Agreement without Client’s consent, including to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger or acquisition. Any prohibited assignment shall be null and void. This Agreement shall inure to the benefit of and shall be binding on the parties, their successors and permitted assigns of the parties. Any assignment by Company in violation of this section or any actual or proposed change in control of Client shall entitle the Company to terminate this Agreement for cause immediately upon written notice.
b. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties and contact persons as set forth in this Agreement. Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent an internationally recognized overnight courier (receipt requested); or (c) on the date sent by facsimile or e-mail (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next day, if sent after normal business hours of the recipient.
c. INJUNCTIVE RELIEF. Client acknowledges and agrees that any breach of Section 2 (License Grant) and/or Section 8 (Confidentiality) may cause irreparable injury to the Company for which there are no adequate remedies at laws. Therefore, in addition to any and all remedies available at law, the Company shall be entitled to seek injunctive relief or other equitable remedies in all legal proceedings resulting from any threatened or actual violation of the provisions hereof without any obligation to post a bond.
d. SEVERABILITY. If any provision in this Agreement is in conflict with any applicable rule of law or statutory provision, or is deemed to be, or becomes invalid, illegal, void, or unenforceable under applicable laws, the Company shall amend such provision to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the parties, it will be deleted, but the validity legality, and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way. If such provisions comprise an integral part of the remainder of this Agreement, this Agreement will be terminated.
e. FORCE MAJEURE. Neither party shall be liable hereunder for any failure or delay in the fulfillment or performance of its obligations under the Agreement due to any circumstance beyond its reasonable control, including, for example, fire, flood, earthquake, other acts of nature, war, explosions, strike, riots, civil unrest, sabotage, acts of God, embargo, acts or regulations of governments or otherwise beyond the reasonable control of the affected party. The party so affected must give prompt notice to the other party.
f. AMENDMENT. This Agreement may be amended by the Company in its sole discretion, with such amendment to begin at the start of a calendar month, by providing at least thirty (30) days’ advance notice to Client by email to the registered email address provided for the administrator(s) for Client’s account as provided in Section 14(b). If Client does not accept the amendment, Client must notify the Company within fifteen (15) days of such notice receipt and pay the Company any outstanding recurring fees through the end of the calendar month immediately preceding the first month for which such amendments take place, in which case the end of such calendar month shall also be the termination date of this Agreement. Client’s failure to do both shall constitute agreement to the amended Agreement.
g. ENTIRE AGREEMENT. This Agreement, Documentation and information that is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous agreements by and between the parties as well as all proposals, oral or written and all negotiations, conversation or discussions heretofore had between the parties related to the subject matter of this Agreement. The parties acknowledge that they have not been induced to enter into this Agreement by any representations of statements, oral or written, not expressly contained herein.
h. DELAY OR OMISSION NOT WAIVER. No delay or failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
i. STATUTE OF LIMITATIONS. Except for actions for nonpayment or breach of the Company’s proprietary rights, no actions, regardless of form, may be brought by either party arising out of or relating to the Service or this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
j. RELATIONSHIP. This Agreement does not make either party the employee, partner, franchisee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to this Agreement each party shall be acting as an independent contractor.
k. THIRD PARTY SITES. The Company has no control over and is not responsible for (i) any third-party websites, (ii) third party content provided on or through the Service, or (iii) the availability of such external websites or resources. The Company does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Client bears all risks associated with the access and use of such websites and third-party content, products and services, including those accessed through the Company’s websites.
l. CLIENT REFERENCE. Client agrees (i) that the Company may identify Client as a recipient of the Service and use Client’s logo in sales presentations, marketing materials, and press releases, and (ii) to develop a brief Client profile for use on Company websites for promotional purposes.
m. FEEDBACK. The Client grants to the Company a perpetual, royalty-free, irrevocable, world-wide license to use and incorporate into the Service any suggestions, ideas, modification requests, feedback or other recommendations related to the service provided by or on behalf of Client and otherwise agrees that it will not itself sue the Company with respect to its use and incorporation of the same.
n. SURVIVAL. The termination or expiration of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable. The provisions in Sections 1, 3(a), 6(d), 7, 8, 9(c), 10, 12(d) and 13, in addition to any other provision that by its terms is intended to survive the expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.
END OF THE AGREEMENT EXCEPT FOR THE HIPAA BUSINESS ASSOCIATE AGREEMENT ATTACHED HERETO AS EXHIBIT A AND INCORPORATED HEREIN IN ITS ENTIRETY
EXHIBIT A – HIPAA BUSINESS ASSOCIATE TERMS ADDENDUM
By agreeing to the terms and conditions for Dental Marketing Insights Inc., DBA Smart Market Dental, the Client accepts the Business Associate Agreement terms below. The Covered Entity is referred to below as “Client”. The Business Associate is referred to below as “Business Associate.”
Client is a “Covered Entity” as defined in 45 CFR §160.103; Smart Market Dental is, with respect to Client, a “Business Associate” as defined in 45 CFR §160.103; and Smart Market Dental may receive PHI (as defined below) from Client. The parties acknowledge that in carrying out obligations under the Services Agreement, Smart Market Dental and its subcontractors, employees, affiliates, agents, or representatives may have reason to access, use, create, maintain or transmit PHI for or on behalf of Client. Certain PHI may be transmitted by or maintained in electronic media as Electronic PHI. The parties agree to comply with any applicable federal or state law governing the privacy and security of the PHI and Electronic PHI including, without limitation, HIPAA and the HITECH Act as defined below, in accordance with the Services Agreement and this Addendum (the “Addendum”).
DEFINITIONS. Capitalized terms used, but not otherwise defined, in this Addendum shall have the same meaning as those terms in the Services Agreement or applicable regulation.
“Breach”, as it relates to information, has the same meaning as the term “breach” in Section 13400 of the HITECH Act.“Designated Record Set” has the same meaning as the term “designated record set” in 45 CFR §164.501.
“Electronic PHI” has the same meaning as the term “electronic protected health information” in 45 CFR §160.103, limited to the information created or received by Smart Market Dental from or on behalf of Client.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, as each may be amended from time to time.
“HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009.
“Individual” has the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
“Nonpublic Personal Information” has the same meaning as the term “nonpublic personal information” in 15 USC Subchapter 1 §6809.“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
“PHI” has the same meaning as the term “protected health information” in 45 CFR §160.103, limited to the information created or received by Smart Market Dental from or on behalf of Client.
“Required by Law” has the same meaning as the term “required by law” in 45 CFR §164.103.
“Secretary” means the Secretary of the Department of Health and Human Services or his designee.
“Security Rule” means the Security Standards at 45 CFR Part 160 and Part 164.
“Unsecured PHI” has the same meaning as the term “unsecured protected health information” in Section 13402(h) of the HITECH Act.
- BUSINESS ASSOCIATE AGREEMENT UNDER HIPAA. This Section 1 applies to the extent that (a) Client is a “Covered Entity” as defined in 45 CFR §160.103; (b) Smart Market Dental is, with respect to Client, a “Business Associate” as defined in 45 CFR §160.103; and (c) Smart Market Dental receives PHI from Client.
1.1. Obligations and Activities of Business Associate. As a Business Associate, Smart Market Dental shall have the following obligations:
(a) Smart Market Dental agrees to not use or disclose PHI other than as permitted or required by the Services Agreement or as Required by Law. Except as otherwise limited in the Services Agreement, Smart Market Dental may use or disclose PHI to perform functions, activities, or services for, or on behalf of Client as specified in Services Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Client or the minimum necessary policies and procedures of Client of which Smart Market Dental has been informed.
(b) Smart Market Dental agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by Services Agreement, including the implementation of administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic PHI as required by the Security Rule.
(c) Smart Market Dental agrees to mitigate, to the extent practicable, any harmful effect that is known to Smart Market Dental of a use or disclosure of PHI by Smart Market Dental in violation of the requirements of the HIPAA requirements.
(d) Smart Market Dental agrees to report to Client any use or disclosure of the PHI that it becomes aware of that is not provided for by the Services Agreement. Further, Smart Market Dental agrees to notify Client of any Breach of Unsecured PHI of which it becomes aware and otherwise comply with the notification requirements set forth in Section 13401 of the HITECH Act.
(e) Smart Market Dental agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by Smart Market Dental on behalf of, Client agrees to the same restrictions and conditions that apply to Smart Market Dental through the Services Agreement with respect to such information.
(f) Smart Market Dental agrees to make its internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received by Smart Market Dental on behalf of Client available to the Secretary, at a reasonable time designated by the Secretary, for purposes of the Secretary determining Client’s compliance with the Privacy Rule.
(g) Smart Market Dental agrees to document such disclosures of PHI and information related to such disclosures as would be required for Client to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528.
(h) Smart Market Dental agrees to provide to Client or an Individual, in time and manner agreed by the parties, information collected in accordance with Section 1(g) of this Addendum, to permit Client to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528.
(i) Smart Market Dental agrees not to exchange any PHI of an Individual for remuneration except as permitted in Section 13405(d)(2) of the HITECH Act.
If, in the performance of its obligations set forth in Sections 1(f) through 1(h) above, Smart Market Dental expends time and materials, Smart Market Dental will provide Client with an estimate of the fee for such time and materials. Following agreement by the parties as to such fees, Smart Market Dental will invoice Client, and Client shall pay Smart Market Dental such fees.
Except as otherwise limited in the Services Agreement, Smart Market Dental may (i) use PHI for the proper management and administration of the Smart Market Dental Services or to carry out the legal responsibilities of Smart Market Dental, and (ii) disclose PHI for the proper management and administration of the Services, provided that disclosures are Required by Law, or Smart Market Dental obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies Smart Market Dental of any instances of which it is aware in which the confidentiality of the information has been breached.
1.2. Obligations of Covered Entity. Client shall have the following obligations:
(a) Client shall use the encryption features in the Services to encrypt any and all PHI that is provided to Smart Market Dental. In addition to the indemnification obligations set forth in the Services Agreement, Client shall defend and indemnify Smart Market Dental from and against any damages and costs arising from or relating to the failure of Client to encrypt the PHI.
(b) Client shall notify Smart Market Dental of any limitation(s) in its notice of privacy practices of Client in accordance with 45 CFR §164.520, to the extent that such limitation may affect Smart Market Dental’s use or disclosure of PHI.
(c) Client shall notify Smart Market Dental of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Smart Market Dental’s use or disclosure of PHI in providing the Services.
(d) Client shall notify Smart Market Dental of any restriction to the use or disclosure of PHI that Client has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect Smart Market Dental’s use or disclosure of PHI in providing the Services.
(e) Client shall not request Smart Market Dental to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Client.
1.3. Term and Termination
(a) Term. The term of this Addendum shall be effective as of the Effective Date and shall terminate when all of the PHI provided by Client to Smart Market Dental, or created or received by Smart Market Dental on behalf of Client, is destroyed or returned to Client, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section.
(b) Termination for Cause. In addition to any termination rights set forth in the Services Agreement and the Terms and Conditions, if Smart Market Dental materially breaches the HIPAA Business Associate Terms, Client may terminate the Services if Smart Market Dental fails to cure such breach within thirty (30) days after receiving written notice of such breach or immediately terminate the Services if cure is not possible.
(c) Effect of Termination.
(i) Except as provided in Section 1.3(c)(ii) below, upon termination of this Addendum, for any reason, Smart Market Dental shall return or destroy all PHI received from Client, or created or received by Smart Market Dental on behalf of Client in accordance with the terms of the Services Agreement and the Terms and Conditions. This provision shall also apply to PHI that is in the possession of subcontractors or agents of Smart Market Dental. Smart Market Dental shall retain no copies of the PHI.
(ii) In the event that Smart Market Dental determines that returning or destroying the PHI is infeasible, Smart Market Dental shall provide to Client notification of the conditions that make return or destruction infeasible. If the return or destruction of PHI is infeasible, Smart Market Dental shall extend the protections of this Addendum to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Smart Market Dental maintains such PHI.
(d) Termination Upon Change In Law. If the Secretary provides guidance, clarification or interpretation of HIPAA or the HITECH Act or there is a change in HIPAA or the HITECH Act such that the service relationship between Smart Market Dental and Client is not considered a Business Associate relationship as defined in HIPAA, this Addendum shall terminate and be null and void.
(a) Regulatory References. A reference in this Agreement to a section in a regulation means the section as in effect or as amended.
(b) Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Client to comply with the requirements of HIPAA.
(c) Survival. The respective rights and obligations of Smart Market Dental under this Addendum shall survive the termination of this Agreement.
(d) Interpretation. Any ambiguity in this Addendum shall be resolved to permit Client to comply with HIPAA.
The parties hereto have entered into this Agreement as of the date of Client’s agreement to the terms and conditions of Smart Market Dental.