Standard Terms and Conditions
USE OF THE DR. LEONARDO SOFTWARE APPLICATION
These Standard Terms and Conditions (the "Terms") are a binding legal contract. These Terms relate to the Order between Dr. Leonardo Interactive Webservices, LLC ("DLIW") and the party ("Customer") that is signing and/or agreeing to the Order (whether in writing, electronically, or by any other means) with respect to the Customer's use and access of the Leonardo Software, as described in these Terms.
A. The DLIW has developed and is the sole owner of a unique and proprietary computer software application known as Dr. Leonardo (the Leonardo Software).
B. Customer desires DLIW to provide it with a limited and non-exclusive right to use and access the Leonardo Software for the sole purpose of developing a customized website for the Customer.
C. DLIW hosts and maintains the Leonardo Software on a secure website. The Customer shall be entitled to use and access to the Leonardo Software exclusively on a SaaS basis via the secure website.
D. DLIW and Customer are entering into an electronic Order that describes the particulars of Customer's use and access of the Leonardo Software. DLIW and Customer may change the Order from time to time by signing and/or agreeing (whether in writing, electronically or in any other form or by any other means) to a Change Order or a new Order. These Terms shall apply to such changes. The Order and any Change Order and new Order are legally binding contracts between DLIW and Customer, and shall be subject to these Terms.
E. DLIW and Customer are entering into the BAA on the Effective Date, simultaneous with the effectiveness of these Terms. The BAA is incorporated into these Terms by reference. To the extent the provisions of the BAA and the DTA conflict with the provisions of these Terms, the provisions of the BAA or DTA, whichever is in conflict, shall prevail.
NOW, THEREFORE, the parties agree to be bound by the following terms and conditions, all of which apply to the Order (as it may be amended or changed by a Change Order, or replaced by another Order from time to time):
These Terms and the BAA shall become effective on the Effective Date, and (unless sooner terminated according to their provisions) shall continue in effect on a month-to-month basis. On the last calendar day of each calendar month following the Effective Date, the Term shall be renewed automatically for a successive period of one calendar month.
1.2.1 Termination by Customer. The Leonardo Software contains a function to enable Customer to terminate these Terms and all of Customer's rights arising hereunder. Customer shall have the right to terminate these Terms only in accordance with such function.
1.2.2 Termination by DLIW. DLIW may terminate these Terms or the BAA at any time and without notice if Customer breaches or is in default of any of these Terms, the BAA, or any other agreement with DLIW, or is in violation of any applicable Laws, or for DLIW's convenience.
1.2.3 Effect of Termination. Upon termination for any reason: (a) DLIW shall have the right to terminate, disable or restrict access to, or use of, the Leonardo Software, the SaaS Site and the Website by Customer or by any other party; and (b) Customer shall pay all moneys, including the SaaS Right Fee, due to DLIW pursuant to these Terms through the effective date of termination.
2. SaaS Right
2.1 Limited Right
During the Term, DLIW grants the SaaS Right to Customer, subject to the restrictions herein. Customer hereby accepts the SaaS Right.
2.2 SaaS Right Fee
In consideration of the SaaS Right, Customer shall pay a monthly fee (SaaS Right Fee) to DLIW, in the amounts and on the terms that are set forth in the Order (as same may be changed by a Change Order or a new Order). By entering into these Terms, Customer hereby authorizes and consents to DLIW's charging the SaaS Right Fee (and all other moneys due by Customer hereunder) to Customer's credit card as specified on the Order (as same may be changed by a Change Order or a new Order). Customer may change the credit card to be charged from time to time by giving prior notice via email to DLIW. Customer shall not, and irrevocably waives the right to, charge back or otherwise rescind, cancel, or dispute the payment of all, or any portion, of the SaaS Right Fee to Customer's credit card company (unless otherwise restricted by applicable law or contracts between DLIW and third parties).
2.3.1 Customer shall not:
2.3.2 permit any third party, other than Customer's employees and Permitted Contractors, to use or access the Leonardo Software or the SaaS Site;
2.3.3 delete (or permit to be deleted) any identifying marks, copyright, or proprietary notices of DLIW or any third party from the Leonardo Software or the SaaS Site;
2.3.4 frame or mirror any portion of the SaaS Site, or the Website on any website or computer network other than those belonging to and/or operated by DLIW;
2.3.5 collect or use any information about other users of the SaaS Site;
2.3.6 engage in data extraction or data-mining;
2.3.7 translate, decompile, create, or attempt to create (by reverse engineering or otherwise) the source code of the Leonardo Software or any of the ideas or know-how that are embodied in the Leonardo Software, or attempt to do so;
2.3.8 adapt, modify, or alter the Leonardo Software in any way;
2.3.9 create a derivative work of the Leonardo Software (or any part thereof);
2.3.10 use the SaaS Site or the Website for unlawful purposes;
2.3.11 post or transmit information or material on or via the SaaS Site or the Website that may be abusive, obscene, defamatory, harassing, offensive, profane, vulgar, threatening, malicious, or unlawful (all as determined by DLIW in its sole reasonable discretion);
2.3.12 post or transmit information or material on or via the SaaS Site or Website that is intended to be used for any unlawful purpose; or is false or misleading; or that actually or potentially infringes the copyright, trademark, patent, trade secret or other right of any Person; or that is invasive of the privacy or publicity rights of any Person; or that encourages, facilitates, aids, or abets criminal conduct; or that may give rise to civil liability (all as determined by DLIW in its sole reasonable discretion);
2.3.13 post or transmit information or material on or via the SaaS Site or the Website that is related to abortion or the termination of pregnancy, or identifies abortion or the termination of pregnancy as one of Customer's primary services;
2.3.14 interfere, disrupt, or attempt to gain unauthorized access to other user accounts on or via the SaaS Site or any other computer network;
2.3.15 post or transmit viruses, Trojan horses, worms, defects, date bombs, time bombs, or other items of a destructive nature or any other malicious codes, scripts, or programs on or via the SaaS Site;
2.3.16 restrict or inhibit any other user from using or accessing the SaaS;
2.3.17 hack or deface any portion of the SaaS Site;
2.3.18 print (or otherwise copy or use) any personally identifiable information about other users of the SasS site; or
2.3.19 collect, store or transmit personally identifiable user information in violation of applicable privacy regulations and laws (both U.S. and abroad).
2.4 Hardware; Operating Systems
Customer is solely responsible for acquiring, installing, and operating any Equipment in conjunction with Customer's operating systems necessary for Customer to access and use the Leonardo Software, the SaaS Site, and the Website.
2.5 Scope of Use
Customer shall use and access the Leonardo Software, the SaaS Site, and the Website exclusively for its internal business use (Permitted Purpose). Customer shall not use or access the Leonardo Software, the SaaS Site, or the Website for any other purpose, or for the benefit of any other Person. The Leonardo Software and the SaaS Site shall be used and accessed only by employees and Permitted Contractors of Customer.
2.6 Limited Warranty
2.6.1 DLIW warrants that the Leonardo Software shall be free of Errors when accessed and used in accordance with DLIW's instructions described on the SaaS Site. DLIW's obligations pursuant to this Section 2.6 shall only apply during the ninety (90) day period immediately following the Effective Date (Warranty Period). Customer shall promptly notify DLIW of any Error within the Warranty Period by providing written notice to DLIW specifying the particulars and details of the purported Error. If the DLIW determines that the Leonardo Software contains an Error, DLIW's sole obligation under this limited warranty is to correct such Error free of charge within a reasonable time. Customer's exclusive remedy for an Error shall be the correction of the Error within a reasonable time, or, if the Error is not corrected, a refund of that portion of the SaaS Right Fee paid by Customer that is associated with the Error.
2.6.2 DLIW does not warrant that: (i) the use of the SaaS Site or the Website shall be uninterrupted; (ii) the use of the SaaS Site, the Leonardo Software, or the Website shall meet Customer's needs; or (iii) the SaaS Site or the Website shall operate on any computer operating system other than the most current version of Microsoft® Windows® or Apple® OS (as of the Effective Date), the two prior versions of such operating systems, or any web browser other than the most current version of Microsoft® Internet Explorer®, Firefox®, Apple® Safari®, or Google® Chrome® (as of the Effective Date) or the two prior versions of each of such web browsers.
2.6.3 DLIW is not responsible for, and this limited warranty shall not apply, to Customer's misuse or negligent use of the SaaS Site or the Website (as determined reasonably by the DLIW) or any unauthorized modification to the Leonardo Software.
2.6.4 DLIW shall use its commercially reasonable efforts to keep the SaaS Site and the Website operational on the Internet. In case of downtime, DLIW's sole responsibility shall be to restore the operations of the SaaS Site and the Website. DLIW shall give a service credit to Customer in case of downtime, in an amount that is equal to: (a) the number of full calendar days that the SaaS Site or the Website was not operational, divided by (b) thirty (30); and that quotient (c) multiplied by the SaaS Right Fee for one (1) month. DLIW shall apply such service credit to the SaaS Right Fee due for the calendar month following the month during which the downtime occurred, provided that these Terms have not been terminated on or before the date the service credit is to be applied.
2.6.5 To claim a remedy under Section 2.6.4, Customer shall submit a notice to DLIW, via an online form that is available to Customer at www.dr-leonardo.com, that contains the following details:
- Billing information, including Customer name, billing address, billing contact and billing contact phone number;
- Dates and time periods for each instance of unavailability during the relevant period; and calculations.
- An explanation of the claim, including any relevant Claims are to be made not more frequently than once per calendar month, and must be submitted to DLIW within 10 business days after the end of the applicable month.
All claims shall be verified against DLIW's system records. If DLIW disputes any period of downtime alleged by Customer, DLIW shall provide to Customer a record of service uptime for the applicable period. DLIW shall provide such records only in response to claims made by Customer in good faith.
2.6.6 DLIW shall have no obligations under this Section 2.6 during any period in which Customer is in breach of any of Customer's obligations pursuant to these Terms or the BAA.
2.6.7 EXCEPT TO THE EXTENT SET FORTH IN THIS SECTION 2.6, DLIW EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AS TO ANY RESULTS TO BE OBTAINED FROM ANY USE OF THE LEONARDO SOFTWARE, THE SaaS SITE, OR THE WEBSITE.
2.7 Web Hosting
Customer will exclusively utilize the services of DLIW to host the Customer's Website. Customer shall not permit any other Person to host the Customer's Website.
3.1 DLIW Content
The provisions of this Section 3.1 shall apply as long as Customer is not in default under these Terms, the BAA, or any other agreement with DLIW, or in violation of applicable Laws.
3.1.1 Limited Availability. DLIW shall make available to Customer via the SaaS Site, on a limited and non-exclusive basis, certain content (DLIW Content) for Customer's Website. The DLIW Content shall include factual information about medical conditions and procedures and other healthcare-related information of a general nature, and shall be made available in textual, still image, video, graphical, or any other format.
3.1.2 Selection of DLIW Content. The SaaS Site shall enable Customer to select all or portions of the DLIW Content for use on Customer's Website. Customer is solely responsible for the selection and use of the DLIW Content on Customer's Website.
3.1.3 Limitations on Use of DLIW Content. Customer shall have the limited right to use the DLIW Content exclusively on Customer's Website, and for no other purpose. Customer shall not use or display any of the DLIW Content for any purpose whatsoever (including, without limitation, for advertising, brochures, mailing, emails, solicitations, or information) other than the Customer's Website. Customer shall not make (or cause to be made) any derivative work out of, or based upon, any of the DLIW Content.
3.1.4 Acknowledgment. Customer confirms and acknowledges to DLIW that: (i) DLIW has made the DLIW Content available on an as is, general informational basis to all of DLIW's customers; (ii) it is the sole responsibility of Customer, using its professional healthcare expertise and best practices, to select and use DLIW Content that is appropriate for Customer's Website, Customer's patients, Customer's prospective patients, and all users of Customer's Website; (iii) DLIW makes no representation or warranty to Customer, to Customer's patients, to users of Customer's Website, or to any other Person about the accuracy, completeness, or reliability of the DLIW Content or about whether the DLIW Content is correct at the time Customer initially selects the DLIW Content for use in its Website or at any later date; and (iv) the DLIW Content is not necessarily the opinion of licensed medical professionals.
3.1.5 Disclaimer. DLIW disclaims all responsibility to Customer, to Customer's patients, to users of Customer's Website, and to any other Person to update, change, or correct the DLIW Content based on medical advances or developments in healthcare or related fields of study or practice, or for any other reason.
3.2 Customer Content
3.2.1 Uploading Content. The Leonardo Software shall make available to Customer the ability to upload the Customer Content to the Customer's Website, and to use the Customer Content on the Customer's Website.
3.2.2 Acknowledgment. Customer confirms and acknowledges to DLIW that it is the sole responsibility of Customer, using its professional healthcare expertise and best practices, to select and use Customer Content that is appropriate for Customer's Website, Customer's patients, Customer's prospective patients, and all users of Customer's Website.
3.2.3 Representations about Customer Content. Customer represents and warrants to DLIW that the following statements are true and correct as of the Effective Date, and shall be true and correct at all times throughout the Term: (i) Customer is the sole owner of the Customer Content and/or has the legal right to use the Customer Content on Customer's Website; (ii) Customer has not received any oral, written, or electronic notice from any Person that any of the Customer Content is alleged to infringe on the rights of such Person; (iii) Customer is not aware of any basis to believe that any of the Customer Content infringes on the rights of any Person; and (iv) Customer Content does not violate any applicable law or regulation.
3.2.4 Customer Responsibilities Regarding Customer Content. Customer shall retain all rights to, and shall be exclusively responsible for the care, privacy, security, use, display, and disclosure of the Customer Content, the Protected Health Information, the Identity Information, and the Images. Customer acknowledges that DLIW has no responsibility, and shall have no liability to Customer or to any other Person, for any of the Customer Content, the Protected Health Information, the Identity Information, and the Images.
3.2.5 Right to Remove Content. DLIW may remove Customer Content or DLIW Content from its servers or Customer's Website at any time if DLIW determines, in its sole discretion, that such content is inaccurate, infringing, indecent, detrimental, or for any other reason. DLIW shall not be held responsible for loss, damage, or claims arising from removal of content under this Section.
4. Content Management System
4.1 About the Content Management System
Subject to the restrictions set forth in these Terms, DLIW shall provide Customer with the limited right to use and access a Content Management System. The Content Management System shall be made available to Customer via the SaaS Site. Customer shall utilize the Content Management System solely to enhance, modify, remove, and/or adapt the Customer Content and DLIW Content that is located on the Customer's Website for the Permitted Purpose, and for no other purposes. Customer shall use and access the Content Management System solely via the SaaS Site.
Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Content Management System available to any Person other than an employee or Permitted Contractor of Customer; or (ii) use or access the Content Management System with the intent to (1) build a product or service that is competitive with any product or service provided by DLIW to Customer or to any Person; (2) build a product or service using ideas, features, functions or graphics that are similar to any product or service provided by DLIW to Customer or to any other Person; or (3) copy the ideas, features, functions, or graphics of any product or service that DLIW provides to Customer or to any other Person.
5. Security Safeguards
DLIW shall furnish Customer with Access Codes. Customer agrees to use the Access Codes to use and access the SaaS Site, the Content Management System, and the Customer's Website. Customer shall not furnish, or make accessible, any of the Access Codes to any Person (other than the employees and Permitted Contractors of Customer). Customer shall take all steps necessary to protect and keep the Access Codes safe and secure, and shall be solely responsible for their safety and security. In case of loss or breach of the security of the Access Codes, Customer shall promptly inform DLIW and, at Customer's sole expense, shall cooperate and take all steps necessary, desirable, or that are directed by the DLIW in order to mitigate the breach and consequences arising therefrom.
6. Confidential Information
6.1 Proprietary Rights
DLIW retains title in, and is the sole and exclusive owner of, the Confidential Information. Notwithstanding anything in these Terms to the contrary, DLIW has, and at all times shall have, the right to use all of the Confidential Information. Customer shall not, by virtue of these Terms or otherwise, acquire any proprietary rights whatsoever in the Confidential Information. Any right not expressly granted to Customer by these Terms is hereby expressly reserved by DLIW.
6.2 Duties of Confidentiality
Customer shall secure and protect the Confidential Information in a manner consistent with the maintenance of DLIW's rights therein. Customer shall permit access to the Confidential Information and the SaaS Site, and use of the SaaS Site and the Leonardo Soflware, exclusively on a need to know basis and only to those of its employees or Permitted Contractors who require such access or use solely for the Permitted Purpose. Customer shall instruct and/or enter into written agreements with the employees and Permitted Contractors of Customer who are permitted such access or use in order to satisfy Customer's obligations hereunder. Customer shall cooperate with and assist DLIW in identifying and preventing any unauthorized use, copying, or disclosure of the Confidential Information. Without limitation of the foregoing, Customer shall advise DLIW immediately in the event Customer learns or has reason to believe that any Person has violated or intends to violate the confidentiality of the Confidential Information or the proprietary rights of DLIW, and Customer shall, at Customer's sole expense, cooperate with DLIW in seeking injunctive or other equitable relief in the name of, at DLIW's sole discretion, either Customer or DLIW, against any such Person. Customer agrees to maintain (and to cause the employees and Permitted Contractors of Customer to maintain) the confidentiality of the Confidential Information using not less than the same degree of care that Customer uses to maintain the confidentiality of Customer's own most confidential information and Protected Health Information and according to best practices in healthcare. Customer acknowledges that the Confidential Information constitutes and embodies trade secrets which are the unique, sole, and exclusive property of the DLIW. Customer shall not disclose, sell, transfer, pledge, sublicense, publish, display or otherwise make accessible or available the Confidential Information in any manner, in whole or in part to any Person other than its employees or Permitted Contractors. Customer acknowledges that the disclosure of any aspect of the Confidential Information, or any other confidential or proprietary information referred to in these Terms, or any information which at law or equity ought to remain confidential, shall immediately give rise to continuing and irreparable injury to DLIW that is inadequately compensable in damages at law. DLIW shall be entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings (without the posting of any bond), in addition to any other legal remedies that may be available. Customer hereby consents to the obtaining of such injunctive relief.
7. Limitation of Liability
DLIW's maximum liability to Customer and to the present, former, and future shareholders, officers, directors, members, managers, partners, agents, and Affiliates of Customer, and to any of the Affiliates of the foregoing Persons, for all causes and claims whatsoever, whether arising under these Terms, the BAA, or otherwise, shall be limited to the lesser of (a) Customer's actual damages, or (b) an amount equal to 10% of the sum of all SaaS Right Fees that have been paid by Customer to DLIW under these Terms during the one-year period immediately preceding the action or omission giving rise to the alleged liability.
IN NO EVENT SHALL DLIW BE LIABLE TO CUSTOMER OR TO ANY OTHER PARTY (INCLUDING WITHOUT LIMITATION, THE PRESENT, FORMER, AND FUTURE SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AGENTS AND AFFILIATES OF CUSTOMER, AND THE AFFILIATES OF ANY OF THE FOREGOING PERSONS, FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT DLIW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE SaaS RIGHT FEES WERE DETERMINED BASED UPON THE FOREGOING LIMITATION OF LIABILITY.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE.
BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE TERMS ALLOCATE THE RISKS OF PRODUCT AND SERVICE NON-CONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS.
THESE TERMS AND ITS PROVISIONS (INCLUDING THE AMOUNT OF THE SAAS RIGHT FEE) REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS.
DLIW SHALL HAVE NO LIABILITY TO CUSTOMER OR TO ANY OTHER PARTY INCLUDING WITHOUT LIMITATION THE PRESENT, FORMER, AND FUTURE SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AGENTS, AND AFFILIATES OF CUSTOMER, AND THE AFFILIATES OF ANY OF THE FOREGOING PERSONS, WITH RESPECT TO ITS OBLIGATIONS UNDER THESE TERMS OR OTHERWISE IF, AT THE TIME OF THE ACT OR OMISSION GIVING RISE TO SUCH ALLEGED LIABILITY, CUSTOMER WAS IN DEFAULT, OR HAD FAILED TO PERFORM FULLY, ANY OF ITS OBLIGATIONS UNDER THESE TERMS, THE BAA, OR ANY OTHER AGREEMENT WITH DLIW, OR WAS IN VIOLATION OF ANY APPLICABLE LAWS.
To the maximum extent permitted by applicable Laws, Customer and its present, former, and future shareholders, directors, officers, members, managers, employees, agents, and Affiliates (and the present, former, and future shareholders, directors, officers, members, managers, partners, employees, agents, and Affiliates of any of the foregoing Persons) (collectively, the Indemnitors) shall, at their own expense, jointly and severally indemnify and promptly reimburse DLIW for the defense of, and hold harmless DLIW and DLIW's members, managers, officers, employees, agents, attorneys, and Affiliates (and the present, former and future shareholders, directors, members, managers, officers, employees, agents, attorneys, and Affiliates of any of the foregoing Persons) from and against any and all claims, actions, liabilities, losses, damages (including without limitation consequential and punitive damages and loss of profits and anticipated profits), judgments, amounts paid in settlement, liens, charges, fines, costs and expenses (including the fees and expenses of attorneys, accountants, experts, and other professionals) resulting from, arising out of, or pertaining to (i) the use or operation of, or access to, the Confidential Information, the SaaS Site, the Leonardo Software, or Customer's Website by any of the Indemnitors or by any user of Customer's Website; (ii) a claim by any Person that the Customer Content, Protected Health Information, Identity Information, or Images (or any part thereof) violates or infringes on the rights of such Person; (iii) any actions or omissions of any Indemnitor; (iv) the breach of any provision of these Terms by Customer; (v) the falsity or inaccuracy, at any time during the Term, of any representation made by Customer in these Terms; (vi) any claims, proceedings, or lawsuits brought by or on behalf of the United States (including, without limitation, the Department of Health and Human Services), any state, local, provincial, or other government or quasi-governmental agency, bureau, tribunal, or jurisdictional body; (vii) the use, storage, or disclosure of Protected Health Information, Identity Information, Images, or Customer Content; (viii) any breach by Customer of the BAA; (ix) any breach by Customer of any other agreement with the DLIW; or (x) any violation or claimed violation of Laws by any of the Indemnitors.
9. Customer Acknowledgements
Customer acknowledges that it is aware of, and hereby assumes, the following risks: (a) data or information (including without limitation DLIW Content, Customer Content, Protected Health Information, Identity Information, and Images) on the Website may be subject to eavesdropping, sniffing, spoofing, forgery, spamming, impostering, tampering, breaking passwords, harassment, fraud, electronic trespassing, hacking, nuking, and contamination (including viruses, malware, worms, and Trojan horses) causing unauthorized, damaging, or harmful access and/or retrieval of such information and data on or via the Website; and (b) data or information on the Website may be subject to other security or privacy hazards.
10. No Unlawful Activities
DLIW does not routinely monitor the Customer's use of, or access to, the Leonardo Software, the SaaS Site, the Website, the Equipment, or any violation by Customer of these Terms, the BAA, or applicable Laws, and DLIW undertakes no responsibility to do so. If DLIW becomes aware that Customer's use of, or access to, the Leonardo Software, the SaaS Site, the Website, or the Equipment may violate these Terms, the BAA, or applicable Laws, or may be inappropriate (as DLIW determines in its sole discretion), DLIW may take any responsive actions it deems appropriate, without giving notice to Customer. Such actions may include, but shall not be limited to, temporary or permanent removal of Customer Content, Protected Health Information, Identity Information, and Images and the immediate suspension or termination of access to and use of the Leonardo Software, the SaaS Site, and the Customer's Website. DLIW shall not have any liability to Customer or to any other party for having taken any such responsive actions. The foregoing actions are not DLIW's exclusive remedies for Customer's breach of these Terms, the BAA, or applicable Laws, and DLIW may take any other legal or technological action that it (in its sole discretion) deems to be appropriate. DLIW reserves the right to investigate suspected violations of these Terms, including the gathering of information from the user or users involved and the complaining party, if any, and examination of material on the Customer's Website and the Equipment. During an investigation, DLIW may suspend access to the Website and/or remove material which may (in DLIW's determination) violate these Terms, the BAA, or applicable Laws, without giving notice to Customer. Customer hereby authorizes DLIW to cooperate with law enforcement authorities in the investigation of suspected criminal violations, and system administrators at other internet service providers or other network or computing facilities in order to enforce these Terms and the BAA. Such cooperation may include DLIW providing the username, IP address, or other identifying information about Customer and any of its employees and Permitted Contractors, and any user of Customer's Website.
11. Business Associate Agreement
DLIW and Customer agree to all of the terms, conditions, provisions, and obligations that are set forth in the BAA. The BAA is expressly made a part of these Terms, and is incorporated herein by reference.
12. Copyright / Trademark Policy
12.1 Digital Millennium Copyright Act (DMCA)
The DMCA provides recourse to those who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If Customer receives a notice from a third party alleging copyright infringement, Customer shall promptly forward that notice to DLIW, and DLIW may or may not, in its discretion subject to applicable law, remove the content or access to it. The notice must include the following information for the material to be removed:
(a) Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Services are covered by a single notification, a representative list of such works);
(c) Identification of the material that is claimed to be infringing or the subject of infringing activity and information reasonably sufficient to allow us to locate the material on the Services;
(d) The name, address, telephone number, and email address of the complaining party;
(e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or the law; and
(f) A statement that the information in the notification is accurate and is given under penalty of perjury, and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
12.2 Trademark and Other Proprietary Rights
In the event Customer receives a notice that content on the Customer's Website infringes on trademark, trade secret, rights of privacy, rights of publicity, or any other proprietary right of a third party, Customer shall promptly notify DLIW of such notice, and DLIW may or may not, in its sole discretion, remove that content from the Website.
13. General Provisions
These Terms evidence the complete understanding and agreement of the parties, and supersedes and merges all previous proposals of sale, communications, representations, understandings and agreements, whether oral, written, or via any other medium between the parties with respect to the subject matter hereof; except that any prior written agreements between DLIW and Customer that pertain to matters that are not the subject of an Order shall remain in full force and effect, and shall be binding on DLIW and Customer in accordance with their terms. These Terms may be modified from time to time by DLIW, at which time DLIW will notify Customer of such modifications and provide a complete copy of the modified terms. Customer and DLIW agree to accept the terms as modified and delivered. If Customer does not agree to modified terms, Customer shall cease using the SaaS Site and the Leonardo Software, and shall terminate its engagement with DLIW.. These Terms and performance hereunder shall be governed exclusively by the substantive and procedural laws of the State of New York, without giving effect to principles of conflict of laws. DLIW and Customer agree that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to these Terms and the BAA or the subject matter hereof or thereof shall be a federal or state court in the State of New York located in or having jurisdiction over Nassau County or Suffolk County. Customer may not assign any of its rights, duties or obligations under these Terms to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed null, void and of no legal force or effect. DLIW may assign any of its rights, duties and obligations under these Terms and the BAA to any other party. These Terms shall apply to, inure to the benefit of, and be binding upon the parties and upon their permitted successors and assigns. Any notice provided pursuant to these Terms, shall be sent by email to the other party at the email addresses set forth in the Order. All provisions of these Terms relating to DLIW's proprietary rights, disclaimers, limits of liability, confidentiality, Customer's actions upon termination, payment of fees and taxes, and indemnification by Customer shall survive expiration or the termination of these Terms for any reason. DLIW may use the name of and identity of Customer as a client, in advertising, publicity, or similar materials distributed to prospective clients of DLIW. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. Nothing in these Terms shall be deemed or construed to create an agency, partnership, or joint venture between DLIW and Customer. Neither party shall have any responsibility to the other if it is unable to perform any of its obligations under these Terms or to enjoy any of its benefits because of, or if interruption of access to or use of the Leonardo Software, the SaaS Site, or the Website is caused by, a Force Majeure Event. Unless otherwise specified in these Terms, the rights and remedies of DLIW set forth in these Terms are not exclusive and are in addition to any other rights and remedies available to DLIW at law or in equity. In case of Customer's breach of any provision of these Terms or the BAA, DLIW shall be entitled to recover all of its expenses and costs of collection (including attorneys' fees) from Customer. The fees and other charges specified in these Terms do not include taxes. If DLIW is required to pay any federal, state or local sales, use, property or value added taxes based on the SaaS Right, or on DLIW's hosting of Customer's Website, the taxes shall be separately billed to Customer and Customer shall be solely responsible for payment of such taxes. DLIW shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by Customer.
Access Codes means codes, passwords, and other security steps that secure the Customer's access to and use of the SaaS Site, the Website, and the Content Management System.
Affiliate means with respect to a Person, another Person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Person in question.
Confidential Information means: (a) the source code to, and object code of, the Leonardo Software, the SaaS Site, the Content Management System, and the Website; (b) all of DLIW's processes, methods, know-how, ideas and concepts embodied therein and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and/or appurtenant thereto; (c) the DLIW Content; and (d) all copies, derivatives, and compilations of each of the foregoing.
Content Management System means a software application that can allow Customer to edit, change, modify, add to, and remove DLIW Content and Customer Content for display on the Website.
Customer Contentâ means: (1) information about Customer and its business that is to be depicted on the Customer's Website or used by Customer in connection with the Content Management System in textual, still image, video, graphical, or any other format; and (2) Protected Health Information.
DLIW Content is defined in Section 3.1.1.
Effective Date means the date that Customer signs and/or agrees to be bound by these Terms.
Equipment means computing devices, desktop computers, notebook computers, tablet computers (including without limitation iPads), wireless and handheld computing devices, cellular smart phones (including without limitation iPhones and Android phones), servers, networking equipment, telecommunications and other hardware, and operating system and firmware applications relating thereto, that are used by Customer or its employees or Permitted Contractors.
Error means any reproducible failure of the Leonardo Software to function; except that a failure to function shall not be considered an Error if it results from (i) the misuse, improper use, alteration, or damage of the Leonardo Software or the SaaS Site, or any part thereof, by or in behalf of Customer; (ii) causes outside of DLIW's reasonable control; or (iii) a Force Majeure Event.
Force Majeure Event means an Act of God; natural disaster; fire; casualty; flood; earthquake; war; act of terrorism; strike; lockout; epidemic; destruction of facilities; civil unrest; riot; insurrection; actions or decrees of governmental bodies; communications interruptions or failures (including, without limitation, interruptions, failures, downtimes, slowdowns, or delays of the connectivity located at, or connected to, Customer's offices), and energy line or Internet service interruptions or failures (including, without limitation, interruptions, failures, downtimes, slowdowns, delays, brownouts, and blackouts of the energy line or Internet service located at, or connected to, Customer's offices).
Identity Information is defined in the BAA.
Images is defined in the BAA.
Lawsâ means all laws, rules, regulations, ordinances, orders, judicial decrees, and statutes by all federal, state, local, provincial, or other government or quasi-government agency, bureau, tribunal or jurisdictional body.
Notice of Privacy Practices is defined in the BAA.
Permitted Contractors means an individual or entity that has been engaged as an independent contractor by Customer or Customer's affiliates.
Permitted Use is defined in Section 2.5.
Person means a natural person, partnership (whether general or limited), trust, estate, association, corporation, limited liability company, custodian, nominee or any other individual or entity (in its own or any representative capacity).
Protected Health Information is defined in the BAA.
SaaS means the use of a software application by means of hosted software-as-a- service (commonly known as cloud computing).
SaaS Right means the limited right, on a non-exclusive and non-transferable basis, to access and use the Leonardo Software on a SaaS basis via the SaaS Site, solely for the Permitted Purpose.
SaaS Right Fee is defined in Section 2.2.
SaaS Site means the secure website maintained and hosted by or on behalf of DLIW, on which website Customer may access and use the Leonardo Software. DLIW shall inform Customer of the Internet URL address of the SaaS Site. DLIW may change the Internet URL address from time to time, in which case DLIW shall inform Customer of the changed address.
Term means the period of time commencing on the Effective Date and ending on the date that these Terms are terminated.
Warranty Period is defined in Section 2.6.
Website means the secure website maintained or hosted by or on behalf of DLIW, on which website the Customer's Website is displayed. DLIW shall inform Customer of the Internet URL address of the Website. DLIW may change the Internet URL address from time to time, in which case DLIW shall inform Customer of the changed address.
Business Associate Agreement
This Business Associate Agreement (BAA) is made between covered entity and business associate, and is a part of, and is incorporated in, the Terms and Conditions between the parties.
The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
(a) Business Associate. Business Associate shall generally have the same meaning as the term business associate at 45 CFR 160.103, and in reference to the party to this BAA, shall mean Dr. Leonardo Interactive Webservices, LLC.
(b) Covered Entity. Covered Entity shall generally have the same meaning as the term covered entity at 45 CFR 160.103, and in reference to the party to this BAA, shall mean Customer.
(c) HIPAA Rules. HIPAA Rules shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Obligations and Activities of Business Associate
Business Associate agrees to be bound by the following provisions:
(a) Not to use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
(b) To use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the BAA;
(c) To report to covered entity any use or disclosure of protected health information not provided for by the BAA of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;
(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;
(e) To make available protected health information in a designated record set to the covered entity as necessary to satisfy covered entity™s obligations under 45 CFR 164.524;
(f) To make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity™s obligations under 45 CFR 164.526;
(g) To maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy covered entity™s obligations under 45 CFR 164.528;
(h) To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, to comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and
(i) To make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
Obligations and Activities of Covered Entity
Covered Entity agrees to be bound by the following provisions:
(a) Not to furnish, deliver, or disclose protected health information to business associate other than as expressly provided in this BAA, or as permitted under applicable law, and for no other reasons;
(b) Not to furnish, deliver, or disclose the identity, name, address, phone number, email address or any other contact information (collectively, the œIdentity Information) of any patient of covered entity or of any other person for any reason, other as expressly provided in this BAA, or as permitted under applicable law, or pursuant to an informed written consent signed by any such patient or person;
(c) Not to furnish, deliver, or disclose any photographs, images, videos, or likeness, in any format, whether analog, physical, digital, or otherwise (collectively, the Images) of any patients of covered entity or any other person for any reason other than as expressly provided in this BAA, or as permitted under applicable law, or pursuant to an informed written consent signed by any such patient or person;
(d) To indemnify, defend, and hold business associate harmless, to the maximum extent permitted by law, from any and all damages, fines, amounts paid in settlement, judgments, investigations, government and administration proceedings, claims, lawsuit, proceedings or any other liabilities (including the reasonable fees of attorneys, experts, and other professionals) with respect to or arising out of, (i) the breach of this BAA, or (ii) the retention, possession, use, or disclosure by covered entity or business associate of protected health information, Identity Information or Images on the internet, to a webhost, to another covered entity, to another business associate, to a subcontractor, or to any other party in any manner or via any medium whatsoever, or whether transmitted by encrypted or unencrypted e-mail, internet file transfer or other web or internet protocol, text or SMS messaging, or any other mode of telecommunications.
(e) The indemnity, hold harmless, and defense obligations of covered entity that are specified in the immediately preceding paragraph (d) shall apply and be binding upon all of the following (each, an affiliate): the present, former, and future shareholders, officers, directors, members, managers, and agents of covered entity, and parties under common control or affiliated with covered entity or any of the foregoing persons or entities.
(f) Covered entity is, and shall be, responsible and liable to business associate for any actions taken, or omissions made, by any affiliate with respect to the obligations, liabilities, rights, or remedies of covered entity or any affiliate, whether occurring under this BAA, under the Terms and Conditions, or otherwise.
(g) Each affiliate is, and shall be, jointly and severally liable to business associate, for any actions taken, or omissions made, by covered entity or another affiliate with respect to the obligations, liabilities, rights, or remedies of covered entity or any affiliate, whether occurring under this BAA, under the Terms and Conditions, or otherwise.
Permitted Uses and Disclosures by Business Associate
(a) Business associate may only use or disclose protected health information as provided in this BAA, the Terms and Conditions, and as permitted or required by applicable Laws.
(b) Business associate is authorized in its sole discretion to use protected health information to de-identify the information in accordance with 45 CFR 164.5 14(a)-(c).
(c) Business associate may use or disclose protected health information as required by law.
(d) Business associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity's minimum necessary policies and procedures.
(e) Business associate may not use or disclose protected health information in a maimer that would violate Subpart E of 45 CFR Part 164 if done by covered entity.
Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions
(a) Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate's use or disclosure of protected health information, Identity Information, or Images.
(b) Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, Identity Information, or Images, to the extent that such changes may affect business associate's use or disclosure of protected health information, Identity Information, or Images.
(c) Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect business associate's use or disclosure of protected health information.
(d) Covered entity shall post a notice of privacy practices on its Website that is compliant with the HIPAA Rules, and shall, whenever it updates or modifies the notice of privacy practices that it uses in its general business, post such updated or modified notice of privacy practices on the covered entity's Website.
(e) The notice of privacy practices shall set forth that covered entity has the right to transmit protected health information, Identity Information, and Images via unencrypted email or other unsecure means.
Impermissible Requests by Covered Entity
Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.
Term and Termination
(a) Term. The Term of this BAA shall be coterminous with the Terms and Conditions, unless covered entity sooner terminates for cause as authorized in paragraph (b) of this Section.
(b) Termination for Cause. Either party authorizes termination of this BAA by the other party, if such party determines that the other party has violated a material term of the BAA and the other party has not cured the breach or ended the violation (after written notice) within the time specified by such party.
(c) Obligations of Business Associate Upon Termination. Upon termination of this BAA for any reason, business associate, with respect to protected health information received from covered entity, or created, maintained, or received by business associate on behalf of covered entity, shall:
1. Retain only that protected health information which is necessary for business associate to continue its proper management and administration or to carry out its legal responsibilities;
2. Return to covered entity (or, if agreed to by covered entity, destroy) the remaining protected health information that the business associate still maintains in any form;
3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as business associate retains the protected health information;
4. Not use or disclose the protected health information retained by business associate other than for the purposes for which such protected health information was retained and subject to the same conditions which applied prior to termination; and
5. Return to covered entity (or, if agreed to by covered entity, destroy) the protected health information retained by business associate when it is no longer needed by business associate for its proper management and administration or to carry out its legal responsibilities.
(d) Survival. The obligations of business associate under this Section shall survive the termination of this BAA.