| 1. | PROVISION OF THE SERVICE. |
| 1.1 | digiChart will provide the Service to the physicians, nurse practitioners, nurse midwives and physician assistants (the “Providers”) and their staff (collectively the “Authorized Users”) in accordance with the terms and conditions of the client’s Application and Installation Service Agreement (“Agreement”). During the term of the Agreement, digiChart grants Customer and its Authorized Users a revocable, limited, non-exclusive license to use the software that is part of the Service (“Software”) via the Internet and only upon the terms of service contained herein. digiChart may make available additional functionality or change functionality of the Software or Service from time to time without the prior consent of Customer. If Customer elects to subscribe to such additional functionality, Customer may incur charges in addition to those set forth herein. THE SERVICE AND SOFTWARE IS PROVIDED TO ASSIST THE AUTHORIZED USERS IN PATIENT CARE. AUTHORIZED USERS SHALL NOT SOLELY RELY ON INFORMATION PROVIDED THROUGH THE SERVICE OR SOFTWARE OR USE THE SERVICE OR SOFTWARE TO REPLACE THEIR DUTY TO ADHERE TO THE REQUIRED STANDARD OF CARE IN THE AUTHORIZED USERS’ MEDICAL COMMUNITY OR THEIR PROFESSIONAL MEDICAL JUDGMENT INCLUDING WITHOUT LIMITATION, WITH RESPECT TO DECISIONS ABOUT MEDICATIONS, DIAGNOSIS OF DISEASES, DETERMINING TREATMENTS OR PERFORMING ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE. |
| 1.2 | Customer may increase or decrease the number of Authorized Users from time to time by adding or deleting log-in accounts for such Authorized Users. Customer shall promptly notify digiChart upon terminating any Authorized User from affiliation with its practice or its association with any Affiliated Personnel. Unless required by law, digiChart will not allow an Authorized User to access the Service after receiving notice of the Authorized User’s disassociation from the Customer. |
| 1.3 | digiChart will use and disclose individually identifiable health information for the provision of the Service to Customer and for digiChart’s own internal administrative purposes, including technical support and maintenance of the Service, in accordance with the Business Associate Agreement (“BAA”) signed by both digiChart and the Customer. In the event of any conflict between the terms of the Agreement, the BAA, and of digiChart’s privacy policy available at www.digichart.com, the terms of the Agreement shall control. |
| 1.4 | All title, copyrights, trade secrets and other intellectual property rights in and to the Software and Service are owned by digiChart, and/or its licensors, and the Software and Service’s structure, organization and code are the valuable trade secrets of digiChart and/or its licensors. Customer and Authorized Users acknowledge that no title to the intellectual property in the Software or Service is transferred to Customer, and that Customer does not obtain any rights, express or implied, in the Software or Service other than the rights expressly granted in the Agreement. Customer and Authorized Users shall not (i) lease, loan, resell or otherwise distribute the Service or Software to any party that is not an Authorized User; (ii) use the Service or Software to develop a product or service which is competitive with any aspect of the Service or Software; (iii) sublicense to, permit access to, or use of, the Software or Service by unauthorized third parties; or (iv) use the Software or Service for the processing of information other than Customer’s and its patient’s information. Use of the Service by a party other than an Authorized User shall be grounds for immediate termination of the Agreement under Section 11.2 hereof. Customer covenants that it will monitor use of the Service to ensure that only Authorized Users shall use the Service and shall immediately report to digiChart any use of the Service or the Software not authorized by the Agreement. |
| 1.5 | User materials, including but not necessarily limited to the digiChart user’s guide that accompany the Software, are provided solely to support Customer’s internal use of the Service and Software. The user materials contain proprietary information of digiChart, and distribution of the user materials to unauthorized third parties is expressly prohibited and shall be considered a material breach of the Agreement. Customer is responsible for ensuring that the user materials are used by Authorized Users only as permitted under the Agreement. Customer, at no additional cost, may reproduce user materials provided that (i) the number of such copies are limited to those reasonably required for authorized use of the Service and Software, including training and archival purposes; and (ii) all proprietary notices contained in the original copies of the user materials are reproduced and included in all copies, whether such copies are made in whole or in part. |
| 1.6 | If necessary, digiChart will develop, with assistance from Customer, the functional specifications (the “Specifications”) and the software interface to integrate the Software and a third party vendor’s software and/or hardware in accordance with the Agreement (the “digiChart Interface”). The digiChart Interface shall be the sole property of digiChart, and Customer shall have no proprietary or other intellectual property rights or interests therein except to use the digiChart Interface in conformity with the rights granted in the Agreement. |
| 1.7 | Provided Customer is current in the payment of any fees due and has complied with all of the terms and conditions required under the Agreement, digiChart shall provide Customer with software maintenance services pursuant to the Customer’s Service Level Agreement (SLA). |
| 1.8 | digiChart does provide the Customer’s user with access to data entry forms. digiChart may provide Customer’s patients limited access to online patient history forms. digiChart does not make any representation or warranties with regard to the accuracy or completeness of information provided by Customer’s users or patients in the entry of such data. |
| 1.9 | The American Medical Association (“AMA”) and Medicode have developed CPT codes and ICD-9 codes that are valuable assets, trade secrets, trademark and/or copyrighted materials licensed to digiChart (the provision of updated versions of which is dependent upon a continuing contractual relationship with the AMA). digiChart has entered into a CPT License Agreement (“Primary Agreement”) with the AMA. As a sub-licensee of the Primary Agreement, Customer and any Authorized User of the CPT codes agree to comply with the terms of the Primary Agreement. CPT codes are commercial technical data that were developed exclusively at private expense by the AMA, 515 North State Street , Chicago , Illinois 60610 . digiChart, its subcontractors, the AMA, Medicode, and any other party involved in the creation, production and delivery of the Service do not warrant the CPT codes and ICD-9 codes will meet Customer’s requirements. Customer acknowledges, the Service and the CPT codes and ICD-9 codes utilized therein have not been developed according to Customer’s specifications or otherwise custom-made. digiChart, its subcontractors, the AMA, Medicode, and any other party involved in the creation, production and delivery of the Service disclaim responsibility for any consequences attributable to or related to any uses, non-use or interpretation of information contained in or not contained in the CPT codes and ICD-9 codes. In no event shall digiChart, its subcontractors, the AMA, Medicode, and any other party involved in the creation, production and delivery of the Service be liable to Customer for any damages, including incidental and consequential damages, including any lost profits, lost savings, fines or penalties imposed by the Health Care Financing Administration, other state or federal agency charged with administering the Medicare program, or any third party, or other incidental or consequential damages arising out of the use or inability to use the CPT codes and ICD-9 codes, even if digiChart, its subcontractors, the AMA, Medicode, and any other party involved in the creation, production and delivery of the Service has been advised of the possibility of such damages, or for any claim by any other party. CPT is a registered trademark of the AMA and ICD-9 is a registered trademark of Medicode. |
| 2. | USE POLICY. Customer shall comply with digiChart’s Use Policy, a copy of which is posted at the digiChart secure Internet site, https://obgyn.digichart.com. Prior to accessing the digiChart secure Internet site, Authorized Users must agree to the Use Policy. digiChart may change the Use Policy from time to time during the term of the Agreement, and such change will become effective ten (10) days after it has been posted to digiChart’s secure Internet site. In the event of any conflict between the terms of the Agreement and digiChart’s Use Policy, the terms of the Agreement shall control. |
| 3. | WITHDRAWAL OF ACCESS. |
| 3.1 | digiChart reserves the right to withdraw Customer’s and Authorized Users’ access to the Service and terminate Authorized User’s and Customer’s license and use of the Software if: (a) Customer fails to pay any fees due hereunder within a period of ninety (90) days from the written invoice date; or (b) the Agreement is terminated for any reason. |
| 3.2 | If any Customer, Authorized User or patient misuses the Service, Software or fails to comply with digiChart’s Use Policy (a “Wrongful User”), digiChart reserves the right to immediately, and without notice, withdraw the Wrongful User’s and the Customer’s access to the Service and terminate the Wrongful User’s license and use of the Software. |
| 4. | CONFIDENTIALITY. |
| 4.1 | “Confidential Information” means: (i) the object and source codes and documentation for the Software, (ii) user training materials, (iii) workflow processes and operational processes, and (iv) information of digiChart which derives value from not being generally known. |
| 4.2 | Customer shall not disclose the Confidential Information except to those persons having a need to know. Customer shall take appropriate action, by instruction to or agreement with its employees, agents and subcontractors, to maintain the confidentiality of the Confidential Information. Customer shall promptly notify digiChart in the event that Customer learns of an unauthorized release of Confidential Information. |
| 4.3 | Customer shall have no obligation with respect to: |
| (a) | Confidential Information made available to the general public without restriction by digiChart or by an authorized third party; |
| (b) | Confidential Information known to Customer, without restriction, independently of disclosures by digiChart under the Agreement; |
| (c) | Confidential Information independently developed by Customer; or |
| (d) | Confidential Information that Customer may be required to disclose pursuant to subpoena or other lawful process; provided, however, that Customer notifies digiChart in a timely manner to allow digiChart to appear and protect its interests. |
| 4.4 | In the event of termination of the licenses granted in the Agreement Customer shall (i) immediately cease to use the Confidential Information, (ii) return to digiChart or certify the destruction of the Confidential Information and all copies thereof within ten (10) days of the termination, unless otherwise provided in the Agreement and (iii) upon request, certify in writing to digiChart that it has complied with its obligations set forth in this Section x. |
| 4.5 | The parties acknowledge that monetary remedies may be inadequate to protect digiChart’s rights in the Confidential Information and that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights. |
| 4.6 | Customer agrees to provide reasonable assistance and cooperation upon the request of digiChart in connection with any litigation against third parties to protect the Confidential Information. |
| 5. | HIPAA COMPLIANCE. Terms of HIPAA compliance are addressed in a separate HIPAA Business Associate Agreement between the Customer and digiChart. |
| 6. | INDEMNITY. |
| 6.1 | Customer shall indemnify and hold digiChart, and its directors, officers, employees and agents (“Indemnities”) harmless against all actions, claims and demands (including the cost of investigating, defending or settling any action, claim or demand including but not limited to reasonable attorneys’ fees and litigation costs) which may be made, threatened to be made, or instituted against the Indemnities arising out of: (i) a breach of the Agreement by Customer; (ii) breach of the representation regarding authority to bind the Customer’s practice and its physicians or other Authorized Users; (iii) any dispute between an Authorized User and Customer regarding access or ownership of patient information; (iv) any medical malpractice claim, tort claim, statutory claim or other claim against the Indemnities arising out of the Agreement; or (v) the negligence of Customer. |
| 6.2 | digiChart agrees to indemnify and hold Customer harmless from all settlements agreed to by digiChart and all costs and direct damages awarded to a third party to the extent they arise out of a claim that the Software or Services, as provided hereunder to Customer, infringes a U.S. copyright, U.S. patent or trade secret under U.S. law of a third party. Such obligation is subject to the following conditions (i) Customer shall notify digiChart in writing within fifteen (15) days of the date Customer first becomes aware of a claim; (ii) digiChart has sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) Customer and Authorized Users give digiChart all reasonably available information, assistance and authority, to defend against such action. If an infringement action described above were to occur, digiChart may remedy the situation, at its option, by either: (i) obtaining the right to continued use of the Software or Service, (ii) substituting other reasonably equivalent software or service, (iii) modifying the Software or Service, so it is no longer infringing, or (iv) terminating Customer’s right to the allegedly infringing Software and Service and refunding the amount which Customer has paid for such Software or Service. The foregoing indemnity shall not apply to any infringement claim arising from use of the Software or Service in conjunction with other software or hardware where use with such other software or hardware gives rise to an infringement claim. THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND. DIGICHART EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF NONINFRINGEMENT. |
| 6.3 | Customer agrees that, notwithstanding anything set forth herein, the Authorized Users shall be subject to the restrictions and obligations relating to the use of the Service and Software contained in the Agreement including, but not limited to, restrictions on use and obligations of confidentiality, and Customer shall advise the Authorized Users of such matters. Customer shall defend, indemnify and hold the Indemnities harmless from any loss, liability, damage, cost, or expense (including the cost of defending, investigating or settling any action, claim or demand including without limitation reasonable attorneys’ fees and litigation costs) arising out of any breach by any Authorized Users of any of the terms contained in the Agreement; and, for the purposes of determining a breach of the terms hereof by an Authorized User, Customer agrees that the actions of the Authorized Users shall be treated as the actions of Customer. |
| 7. | WARRANTY / DISCLAIMER. OTHER THAN DIGICHART’S OBLIGATION IN SECTION 1.2 TO USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN CERTAIN UPTIME AVAILABILITY FOR THE SERVICE, THE SERVICE AND SOFTWARE ARE LICENSED AND PROVIDED “AS IS.” NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICE OR SOFTWARE USAGE, THAT THE SOFTWARE OR SERVICE WILL OPERATE ERROR FREE OR WITH RESPECT TO THE COMPATIBILITY OF CO-OPERATING SOFTWARE, OF ANY INTERCONNECTED INTERNET SERVICE OR CUSTOMER COMPUTER CONNECTED TO THE SERVICE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY CUSTOMER, DIGICHART, OR THEIR RESPECTIVE EMPLOYEES AND AGENTS SHALL CREATE A WARRANTY; NOR SHALL CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. THE WARRANTIES STATED WITHIN THE AGREEMENT ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. |
| 8. | LIMITATION OF LIABILITY. |
| 8.1 | UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR LOSS OR INACCURACY OF ANY DATA OR PATIENT INFORMATION, FAILURE TO REALIZE EXPECTED SAVINGS THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICE OR SOFTWARE, THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO EVENTS OF FORCE MAJEURE, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS, OR SERVICES. THIS SECTION WILL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES, ANY LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. |
| 8.2 | EXCEPT WITH RESPECT TO THE REMEDIES UNDER THIS SECTION, DIGICHART’S AND ITS OFFICER’S, EMPLOYEE’S, DIRECTOR’S, OR SUBSIDIARIES’, LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THE AGREEMENT, OR THE LICENSING, DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE OR SERVICES PROVIDED UNDER THE AGREEMENT OR ANY BREACH OF THE AGREEMENT, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR WARRANTY, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER TO DIGICHART. |
| 9. | SURVIVABILITY. Sections 3 through 8 shall remain in full force and effect following the expiration or termination of this Agreement. |
| 10. | ENTIRE AGREEMENT. The Agreement, with it’s signature page, attachments or exhibits, these TOS, any mutually signed Amendments, the applicable SLA, and the mutually signed HIPAA BAA constitute the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing. digiChart may modify the Terms of Service or Service Level Agreement upon written notice, e-mail or otherwise, to the Client. Client may notify digiChart in writing within thirty (30) days of receipt of a modification notification that Client does not wish to accept the new terms. In the absence of such written non-acceptance notification with the thirty (30) day period, Client confirms acceptance of the new terms by continuing to use the Application and services. If the Client does not accept the new terms by notifying digiChart within the thirty (30) day period, then Client may continue to use digiChart under the Client’s existing terms until the end of Client’s then current term, at which time Client’s Agreement will not automatically renew, but will instead terminate. It is expressly agreed that if any inconsistency in terms of the different documents that constitute the Entire Agreement are found to exist, then the terms in the Agreement supersede all others. |
| 11. | WAIVER. No term of the Agreement or these Terms of Service shall be deemed to be waived except by notice in writing signed by each party. Any failure by a party to enforce any section of this Agreement or these Terms of Service, or any forbearance, delay or indulgence granted by a party to the other party, will not be construed as a waiver of the party’s rights under this Agreement. |
| 12. | SEVERABILITY. If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted. |
| 13. | NO THIRD PARTY BENEFICIARY. Nothing express or implied in the Agreement is intended to confer, nor shall anything herein confer, upon any patient or person other than Customer, Authorized Users and digiChart and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever. |
| 14. | GOVERNING LAW – JURISDICTION/VENUE. THE AGREEMENT SHALL BE BINDING WHEN ACCEPTED IN WRITING BY DIGICHART AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TENNESSEE . CUSTOMER AND AUTHORIZED USERS AGREE THAT THE COURTS OF THE STATE OF TENNESSEE FOR DAVIDSON COUNTY OR ANY FEDERAL DISTRICT COURT HAVING JURISDICTION IN THAT COUNTY SHALL HAVE JURISDICTION AND SHALL BE THE PROPER LOCATION FOR THE DETERMINATION OF ALL DISPUTES ARISING UNDER THE AGREEMENT. CUSTOMER AND AUTHORIZED USERS WAIVE TRIAL BY JURY IN ANY ACTION BETWEEN THE PARTIES. ANY CAUSE OR ACTION AGAINST DIGICHART ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY ATTACHMENT OR OTHER AGREEMENT EXECUTED IN CONNECTION HEREWITH SHALL BE INSTITUTED AND SERVED UPON DIGICHART NOT LATER THAN EIGHTEEN (18) MONTHS FOLLOWING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE THERETO. |
102 Woodmont Blvd., Suite 500, Nashville, TN 37205 Office 877.634.2727 Fax 615.321.4450 Email: solutions@digichart.com
