Terms and Conditions
HealthAware LLC (“HealthAware”) provides health information applications and other services to health care customers through one or more Order Forms and/or Statement(s) of Work which are organized under an umbrella Master Agreement. The Order Form(s) and Statement(s) of Work, as well as the Master Agreement, are subject to and governed by these Terms and Conditions and for ease of reference shall be referred to, individually and collectively, as the “Order Documents.” The customer executing such Order Documents under these Terms and Conditions shall be referred to as the “Client” and the applications and other services identified in the applicable Order Documents are referred to as the “Solution.” References to the Terms and Conditions herein shall be deemed to include the applicable Master Agreement unless the context demands otherwise. HealthAware and Client are collectively referred to as the “Parties” and individually as a “Party.”
- The Solution. HealthAware authorizes Client to access and use the Solution as described in these Terms and Conditions and the applicable Order Documents for the Term as set forth in the Master Agreement and the applicable Order Documents.
- HealthAware may modify the Solution from time to time, including by adding or deleting features and functions, in an effort to update and enhance the Solution. But HealthAware will not make changes to the Solution that materially reduce the functionality of the Solution provided to Client during the Term of the applicable Order Documents unless such changes are required to comply with applicable laws or are required to prevent substantial harm to the Solution or to HealthAware’s customers. HealthAware may provide some elements of the Solution through third party service providers.
- Client may purchase professional services pursuant to a Statement of Work under the Master Agreement (“Consulting Services”). Unless otherwise described in the applicable Statement of Work, the Consulting Services HealthAware provides may consist of implementation, configuration, promotional and/or training services. Fees for these Consulting Services are in addition to any recurring fees for the Solution. Unless otherwise agreed, all Consulting Services are performed remotely.
- Client agrees to use the Notice of Privacy Practices template as provided with the Solution in conjunction with its use and deployment of the Solution or, to the extent that Client desires to modify the template or develop its own terms, Client warrants that the modified terms shall contain data authorization rights, warranty and remedy disclaimers, and liability limits substantially similar in effect to those set forth in the example template. Client shall make its proposed version of such terms available to HealthAware for review at least five (5) business days prior to Client’s publication of such terms and, upon request, shall modify its terms to conform to the requirements of these Terms and Conditions.
- Payment. Client agrees to pay HealthAware the amounts as indicated in the applicable Order Documents. Client agrees to pay any taxes applicable to its use of the Solution and performance of Consulting Services. Client shall have no liability for any taxes based upon HealthAware’s gross revenues or net income. Any dispute with an invoice must be brought to HealthAware’s attention within 60 days of the invoice date or Client hereby waives said dispute. HealthAware may charge interest at the highest legal rate compounded monthly for all amounts past due by at least 30 days.
- Term and Termination. The Master Agreement is effective as of the date the last party assents to the Master Agreement and will remain in effect pursuant to its terms. Order Forms and Statement(s) of Work are effective as of the date set forth therein and will remain in effect during the term stated. Unless otherwise stated in the applicable Order Document, each Order Document will renew automatically for successive one-year terms unless terminated by either party in writing at least 60 days prior to expiration of the then-current term. Either party may terminate the Master Agreement with or without cause upon written notice to the other party and either party may terminate or an Order Form or Statement of Work for cause: (i) upon sixty (60) days’ notice to the other party of a material breach thereof if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. The Order Documents may not otherwise be terminated prior to the end of the Term.
- HealthAware may suspend Client’s and/or any user’s access to the Solution for: (i) use of the Solution in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) non-payment of any amount past due, or (iii) use of the Solution in a manner that may cause harm to HealthAware or others. HealthAware may provide electronic or telephonic notice to Client prior to suspension of the Solution.
- Effect of Termination. Termination of the Master Agreement, by itself, shall not result in the termination of any underlying active Order Document. If Client terminates an Order Document for cause, HealthAware will promptly refund any prepaid but unused fees to Client. If HealthAware terminates an Order Document for cause, Client will promptly pay to HealthAware all unpaid fees for services performed through the date of termination as well as all fees that would have been paid to HealthAware during the remainder of the then-current term of the Order Document. Fees are otherwise non-refundable.
- Trademark License.
- License. Client hereby grants HealthAware a nonexclusive, nontransferable, nonsublicenseable, revocable, royalty-free license to use the trademarks identified on Schedule A (the “Marks”) in connection with the configuration of the Solution.
- Quality Control. HealthAware agrees that the nature and quality of the Solution offered under the Marks shall conform to industry standards and to mutually agreed standards set by Client and HealthAware from time to time. HealthAware agrees to cooperate with Client in facilitating mutually agreeable control of the nature and quality of the Solution.
- Ownership and Rights.
- Ownership of Software. Client acknowledges and agrees that this is an agreement for access to use HealthAware’s proprietary software-as-a-service Solution and that Client is not granted a license to any software. The Solution (and any upgrades thereto) including, but not limited to all software, beta version software, computer files, audio-visual content, updates, html code, documents, text, photographs, video, pictures, animation, sound recordings, source code, images, layout, and all other works of original authorship and other content created by HealthAware shall be exclusively owned by HealthAware. All such materials shall belong exclusively to HealthAware with HealthAware having the right to obtain and to hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. HealthAware encourages all customers to comment on the Solution and provide suggestions for improving it. Client agrees that all such comments and suggestions will be non-confidential and that HealthAware will own all rights to use and incorporate them into the Solution, without payment to Client.
- Ownership of the Marks. HealthAware acknowledges and agrees that the Marks and all associated goodwill are the sole and exclusive property of Client. All use by HealthAware of the Marks shall inure solely to the benefit of Client. Except for the limited rights granted hereunder, nothing herein shall be construed as granting or conveying any other rights, title, or interest in or to the Marks.
- Client Custom Code and Pixels. Client is provided the ability to include custom code and pixels within the Solution. HealthAware acceptance and addition of such code does not constitute an endorsement or verification of utility or accuracy. The Solution is designed to perform without the use of added custom code or pixels. Client releases HealthAware of any and all liability associated with the use of this code and pixels. Client agrees that the nature and quality of Client’s code provided shall conform to industry standards and is considered to be safe. HealthAware has the right to refuse or remove Client provided code or pixels if it does not confirm with industry standards.
- Support. Technical support will be provided as part of the Solution, with phone and e-mail support provided during HealthAware’s standard business hours. HealthAware will attempt to respond to support questions within one business day. While in practice most responses are generally faster, HealthAware does not promise or guarantee any specific response time. Client acknowledges and agrees that at times the Solution may be unavailable for any reason whatsoever, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; or (c) causes that are beyond the control of HealthAware or that are not reasonably foreseeable. HealthAware commits to use commercially reasonable efforts to maintain 99% uptime availability of the Solution, except for planned down-time and except for unforeseen circumstances. In the unlikely event of an extended service interruption, it will be dealt with on a case-by-case basis.
- Confidential Information.
- Confidentiality. As it is used in this Agreement, the term “Confidential Information” shall mean any information of either Party, whether or not developed by the other, including but not limited to pre-existing or new information that relates to all ideas, designs, methods, discoveries, improvements, products, trade secrets, product data and specifications, proprietary rights, business affairs, product developments, employee information, whether in oral, graphic, written, electronic or machine readable form. Confidential Information shall not include information that can be demonstrated to: (i) have been rightfully in the possession of the receiving Party from a source other than the disclosing Party prior to the time of disclosure of said information to the receiving Party (“Time of Disclosure”); (ii) have been in the public domain prior to the Time of Disclosure; (iii) have become part of the public domain after the Time of Disclosure by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of the receiving Party, its employees, or agents; or (iv) have been supplied to the receiving Party after the Time of Disclosure without restriction by a third party who is under no obligation to the disclosing party to maintain such information in confidence.
- Nondisclosure. The Parties acknowledge and agree that, in performing their obligations under this Agreement, each Party shall have access to or be directly or indirectly exposed to the other’s Confidential Information. Each Party shall hold confidential all Confidential Information and shall not disclose or use such Confidential Information without the express written consent of the other Party. Each Party shall use commercially reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each Party uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors to agree to maintain the confidence of any and all Confidential Information before obtaining access to the other Party’s Confidential Information.
- Aggregate Data. HealthAware monitors the use of the Solution by all HealthAware customers and users. Client agrees that HealthAware may use data gathered in an aggregate and anonymous manner for its business purposes without further obligation to Client. Such use may include the use of Client user data; provided that any such data shall be de-identified in accordance with applicable law prior to use by HealthAware. Client consents to such usage and agrees that it has secured all necessary authorizations for such use.
- Return of Confidential Information. Upon written notice, the non-requesting Party will promptly deliver to the requesting Party all written or other materials containing or reflecting any Confidential Information and will not retain any copies, extracts, or other reproductions, in whole or in part, of such materials.
- HIPAA Compliance. If HealthAware gains access to protected health information (“PHI”) and/or electronic protected health information (“ePHI”) as such terms are defined under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), each party shall comply with all applicable laws, rules and regulations regarding the security and confidentiality of such information, including without limitation, HIPAA, and the rules, regulations and standards now or hereafter promulgated thereunder. Unless agreed to in a separate document, each party agrees to comply with the terms of HealthAware’s standard Business Associate Agreement, which is incorporated herein with respect to the disclosure and processing of PHI and ePHI by HealthAware.
- Indemnification. Client shall indemnify and hold HealthAware and its shareholders, agents, officers, directors, employees, successors, assigns, parents, subsidiaries, and affiliates harmless from any and all liabilities, obligations, loss, damage, injury, penalty, action, judgment, suit, claim, cost, expense or disbursement of any kind (a “HealthAware Indemnified Loss”) that may be imposed on, incurred by or served against them by any person or entity arising out of or related to a claim of trademark infringement associated with the Marks or personal injury claim arising out of the use of the Solution or relating to any claims and associated liabilities arising out of Client’s breach of any obligation under this Agreement. HealthAware shall indemnify and hold Client and its shareholders, agents, officers, directors, employees, successors, assigns, parents, subsidiaries, and affiliates harmless from any and all liabilities, obligations, loss, damage, injury, penalty, action, judgment, suit, claim, cost, expense or disbursement of any kind (a “Client Indemnified Loss”) that may be imposed on, incurred by or served against them by any person or entity arising out of or related to a claim of trademark infringement associated with the Solution or relating to any claims and associated liabilities arising out of HealthAware’s gross negligence or intentional misconduct. Such indemnification shall include, without limitation, indemnification for attorneys’ fees and other costs that may be incurred by the party seeking indemnification with respect to any HealthAware or Client Indemnified Loss, as applicable, including such fees and costs for investigation and consultation regarding any threatened claim, whether or not any legal action is ultimately commenced against the party seeking indemnification.
- Warranty Disclaimer. HEALTHAWARE’S PROVISION OF THE SOLUTION PURSUANT TO THE MASTER AGREEMENT AND UNDERLYING ORDER DOCUMENTS DOES NOT CONSTITUTE HEALTHAWARE’S ENDORSEMENT OF OR ANY JOINDER IN ANY GUARANTEE OR WARRANTIES MADE BY CLIENT. HEALTHAWARE PROVIDES THE SOLUTION “AS IS WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND, AND HEALTHAWARE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOLUTION WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. HEALTHAWARE DOES NOT WARRANT THE USE OR RESULTS OF USE OF THE SOLUTION IN TERMS OF CLINICAL EFFICACY OR CONFORMANCE TO STANDARDS OF MEDICAL PRACTICE. HEALTHAWARE DOES NOT WARRANT AGAINST INTERFERENCE WITH CLIENT ENJOYMENT OF THE SOLUTION, THAT THE FUNCTIONS CONTAINED IN THE SOLUTION WILL MEET CLIENT REQUIREMENTS, THAT THE SOLUTION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOLUTION WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SOLUTION WILL FUNCTION WITH OTHER CLIENT SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HEALTHAWARE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HEALTHAWARE, OR ITS SHAREHOLDERS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, PARENTS, SUBSIDIARIES, OR AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND, IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, INJURY, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR LOSS OF PROFITS ARISING OUT OF, OR RELATED TO, IN ANY MANNER, THESE TERMS, THE MASTER AGREEMENT, THE ORDER DOCUMENTS, THE USE OF THE SOLUTION, OR THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER REGARDLESS OF THE FORESEEABILITY THEREOF. IN NO EVENT SHALL HEALTHAWARE’S TOTAL LIABILITY FOR ALL DAMAGES EXCEED THE AMOUNT OF FEES PAID UNDER THE APPLICABLE ORDER DOCUMENT FOR THE YEAR IMMEDIATELY PRECEEDING THE DATE OF ANY CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Governing Law; Jurisdiction; Venue; Attorneys’ Fees. The Order Documents shall be construed and enforced in accordance with the laws of the State of Colorado. All actions, claims or disputes arising under or relating to the Order Documents shall be brought in the federal or state courts in the State of Colorado. The Parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each Party by the federal or state courts in the State of Colorado. The Parties hereby irrevocably waive any and all objections that any Party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Colorado and to the venue of any such suit, action, or proceeding brought in any such federal or state court in the State of Colorado. The Parties agree that the prevailing Party in any litigation arising out of or relating to the Order Documents will be entitled to recover all reasonable attorneys’ fees and other expenses in addition to statutory “costs” of litigation. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to the Order Documents may be brought by Client more than one (1) year after the cause of action has accrued.
- Entire Agreement. The Order Documents including these General Terms and Conditions state the Parties’ entire agreement and understanding of the subject hereof. The Order Documents supersedes all prior understanding and agreements. Any prior agreement or understandings between the Parties is null and void.
- Modification and Waiver. HealthAware may update and change any part or all of these General Terms and Conditions. If HealthAware updates or changes these General Terms and Conditions, the updated General Terms and Conditions will be posted at the website address provided to Client by HealthAware. The updated General Terms and Conditions will become effective and binding on the next business day after they are posted. For the General Terms and Conditions, the “Last Modified” date above will be updated to reflect the date of the most recent version. HealthAware may change the rates of the applicable Order Documents by providing Client with 30-days written notice of the price change. No waiver of any term, provision, or condition of the Order Documents, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
- Severability. If any provision or clause of the Order Documents as applied to either Party or to any circumstances, shall be adjudged by a court of competent jurisdiction to be invalid or unenforceable, said adjudication shall in no way affect any other provision of the Order Documents, the application of such provision in any other circumstances, or the validity or enforceability of the Order Documents.
- Assignment. Client may not assign or delegate its duties under the Order Documents without HealthAware’s written consent. Any attempted assignment or delegation by Client without the required consent is void.
- Benefit. The Order Documents are binding upon, and inures to the benefit of, the Parties and their respective successors, assigns, officers, directors, shareholders, agents, attorneys, subsidiaries, parent corporations, affiliates, successors in interest, successors through merger or corporate restructure, successors through a sale of all or substantially all of the assets or business, and anyone else acting on their behalf.
- Survival. Notwithstanding the termination of the Order Documents, the Parties shall be required to carry out any provision hereof that contemplates performance subsequent to such termination, and such termination shall not affect any liability or other obligation that have accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Paragraphs 2, 6, 8, 10, 11, 12 and 13 shall survive termination of the Order Documents for any reason.
- Headings. The headings in the Order Documents are for convenience only and do not in any way affect the terms or conditions of the Order Documents.
- Authority. The Parties represent that each has the full and necessary authority to enter into the Order Documents and that the individual executing the Order Documents has full authority to bind the Parties, as the case may be, to all terms and conditions of the Order Documents, and that the Parties are each fully capable of performing all terms and conditions of the Order Documents.
- Counterparts. The Order Documents may be executed in any number of counterparts, each of which when executed and delivered is an original, but all such counterparts will constitute one and the same instrument. Delivery of a copy of the Order Documents executed by a Party, including by fax or e-mail, has the same force and effect as personal delivery by such Party of an executed paper original of the Order Documents.
- Notice. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt:To HealthAware: HealthAware LLC, 1415 Park Avenue West, Denver, CO 80205, Attention: LEGAL NOTICEHealthAware may provide electronic notices to Client via the Solution and, additionally, may provide notices specific to Client’s account to Client at its e-mail address on record.
Unless otherwise agreed, all Client trademarks, service marks, trade names that are used in connection with Solution.
Last Updated: 02/10/2023