Medici Terms of Use

Terms of Use

By using this software, you (“Client”) agree to the following:

1. Definitions.
As used herein:

(a) “Authorized Users” shall mean Client’s employees and independent contractors working for Client in the ordinary course of Client’s business who: (i) agree to be bound by these terms; and (ii) are specifically authorized by Client to access the Service.

(b) “Service” shall mean the Asolva’s software as a service module(s) identified on an Order Form, including associated documentation made available to Client in written form or online, subscribed to by Client hereunder.

(c) “Service Start Date” shall mean the date from which Client first receives the applicable Service or as identified on an applicable Order Form, whichever is earlier.

(d) “Fees” shall mean the fees payable pursuant to Section 3. hereof and an applicable Order Form and/or Statement of Work.

(e) “Order Form” shall mean a written document executed by Client and Asolva in the form attached hereto as Exhibit A that describes the Service, Term, Fees, the number of Authorized Users, and any other applicable terms and conditions applicable to Client’s access and use of the Service. Each executed Order Form by reference incorporates these terms in their entirety. An Order Form will take precedence over any other provision of these terms, provided that any conflict or inconsistency in an Order Form with any other provision of these terms will only apply to that specific Order Form.

(f) “Client Data” means any electronic data, customer data, information, or material that (i) Client provides, uploads, or submits to Asolva in connection with these terms or (ii) is generated from or in connection with Client’s use of the Service (including any Authorized User).

(g) “Client Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos of Client, as such trademarks and other marks may be modified by Client from time to time.

(h) “Term” shall mean the period beginning on the Effective Date and ending on the date the last Order Form or Statement of Work in effect terminates or expires, as applicable.

2. Services: Services: Asolva will provide the Service described in each Order Form duly executed by the Parties and any additional Order Forms or Statement of Work executed by the parties in the future.

3. License: License. Asolva hereby grants the Client identified on the Order Form a limited, non-exclusive, and non-transferable license, without right of sublicense, during the Term to access, display, and use within the United States, the Service, and to permit Authorized Users to access and use the Service, subject to these terms and conditions. All rights in the Service not expressly granted hereunder are reserved to Asolva.

4. Scope: The license granted to Client hereunder is solely for Client’s internal business purposes and is limited to the access, display, and use of the Service by only an Authorized User. Client shall have no right pursuant to these terms to access, use, display, or distribute the Service, in whole or in part, beyond the number of Authorized Users identified on the applicable Order Form. Client may add additional Authorized Users by either executing a new Order Form or amending an existing Order Form. Client is responsible for all activities that occur under Client’s and any Authorized User’s accounts. Client will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Service by Client and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Asolva promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service. Nothing in this Agreement shall obligate Asolva to continue providing access to any Service beyond the date when Asolva ceases providing such Service to Clients generally.

5. Client Access: 

(a) Client shall acquire, install, operate, and maintain at Client’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Service. Except as expressly stated herein or on an applicable Order Form, Client is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Client) to access and/or use the Service; (ii) allow access to or use of the Service outside of the United States of America (including any Authorized User).

(b) Delivery and Acceptance. Asolva will make the Service available to Client as indicated on the Order Form. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades (“Corrections”) to the Service will be deemed accepted by Client on the day such Corrections are first made available to Client or accessed by Client, whichever is earlier.

(c) Asolva will provide Client with access to the Services via unique login credentials. Each of Client’s Authorized Users requiring access will be provided their own unique login credentials.

(d) Client shall not disclose its login credentials to any third parties and will immediately notify Asolva of any unauthorized access to the Services or any other breach of security or privacy or any known violation of these terms by Client or any third party. Client is solely responsible for any liability, loss or damages arising from any unauthorized third party access to the Services.

6. Limitations: Client shall not edit, alter, abridge, or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Client may not, and may not permit others to (including any Authorized User):

(a) Use the Service, including the software modules, documentation and/or the non-public information it gains from using the Service to create similar software or services;

(b) Modify, translate, alter, tamper with, repair, or otherwise create derivative works of the Service, software modules or documentation; reverse engineer, disassemble, decompile, discover, decode, decrypt, or in any way derive source code from, the software or the Service;

(c) Copy, distribute, publicly display, transmit, sell, lend, rent, lease, sublicense, assign or otherwise exploit the Service or transfer any of the rights granted to Client with respect to the Service, software modules or documentation to any third-party;

(d) Distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Service or documentation;

(e) Remove, obscure, or alter any proprietary rights notice appearing on or within the Service, software modules or any documentation; or

(f) Attempt to circumvent any capacity or security limits of the Services.

(g) Harvest, collect, gather, or assemble information or data regarding other Clients;

(h) Transmit through or post on the Service unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
(i) Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;

(j) Interfere with or disrupt the integrity or performance of the Service or the data contained therein;

(k) Attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or

(l) Harass or interfere with another Client or end-user’s use and enjoyment of the Service.

6.1 Notify Others. Client agrees to notify its employees and agents who have access to the Service of the limitations set forth in these terms.

6.2 Restrictions on Export. Client may not use the Service or related software, or allow the transfer, transmission, export, or re-export of all or any part of the Service or related software, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction.

6.3 Compliance with Laws. Client may not use the Service or related software in a manner that violates any applicable local, state, national, or international law or governmental regulation, policy procedure, or ordinance, or any rights of a third party.

7. Service Fees and Other Fees: 

(a) In exchange for the Services to be provided and the licenses granted under these terms, commencing on the Service Start Date, Client shall pay Asolva the Fees identified in the applicable Order Form, plus any other applicable fees, costs, and expenses contained in the Order Form and these terms. Unless otherwise set forth in the applicable Order Form, all Fees are payable in advance on an annual basis and are based on the Services and the number of Authorized Users identified in the Order Form. Client shall inform Asolva of any increases in the number of Authorized Users no later than seven (7) days after the date of such increase and the Order Form will be deemed amended accordingly.

(b) Invoicing and Payment. Asolva will invoice Client for Fees for the Service in advance and in accordance with the terms of the relevant Order Form. Charges due will be payable within thirty (30) days of the date of the invoice. All payments made under this Agreement will be in United States Dollars.

(c) Late Payments. If Client fails to pay the Fees by the due date specified on the invoice, Asolva shall be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater.

(d) Taxes. Client will be responsible for, and will promptly pay or reimburse Asolva for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Asolva that is in accordance with the direction or request of Client) that are based on or with respect to any Services or goods provided by Asolva to Client, or the amounts payable to Asolva therefore.

8. Security: Asolva will implement commercially reasonable security measures (including, but not limited to, password protection and encryption) that are intended to prevent access to the Service and Asolva’s network by unauthorized persons and shall comply with applicable laws and regulations concerning the safeguarding of Client Data that is stored or accessed by the Service. Asolva will establish and maintain such other commercially reasonable safeguards (including, but not limited to, virus protection safeguards) against the destruction, loss, or alteration of the Service and/or data that is stored or accessed by the Service. Asolva or its agents will utilize security systems for the Service that provide notification in the event of any systems failure. Upon Asolva’s (or its agent’s) discovery of any security breach, intrusion, or other event giving rise to the actual unauthorized access, destruction, loss, or alteration of Client’s Data, Asolva shall promptly notify Client thereof and shall take such commercially reasonable action as may be appropriate to mitigate and prevent such unauthorized access, destruction, loss, or alteration. Client acknowledges that, notwithstanding such precautions, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Client Data. Asolva cannot guarantee the privacy, security, integrity, or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any security precautions will be adequate.

9. Intellectual Property Rights, Client Data:

(a) Client agrees that the Service and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Asolva or Asolva’s licensors. The works and databases included in the content of the Service, including the design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement and the documentation, are protected by applicable copyright laws. Asolva and the Asolva logos are registered service marks of Asolva, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Asolva. Other product and company names of our licensor’s may be trade or service marks of their respective owners. Other than as expressly set forth in these terms, no license or other rights in the pre-existing intellectual property rights to the Service are granted to Client, and all such rights are hereby expressly reserved.

(b) Except as set forth herein or in an Order Form, no clients or other persons or entities who are not legal employees of Client or independent contractors consulting for Client in the ordinary course of Client’s business may be Authorized Users.

(c) Client hereby grants to Asolva a non-exclusive, royalty-free, and non-transferable license to use, copy, store, modify, and display the Client Data as necessary to provide the Service in accordance with these terms. Client Data submitted by Client to the Service, whether posted by Client or by an Authorized User, remains the sole property of Client and Client reserves all right, title, and interest in the Client Data. Asolva may access Client’s and its Authorized User accounts, including, without limitation, Client Data, to the extent necessary to respond to service or technical problems.

(d) Asolva may collect and use certain registration and statistical information, such as usage or traffic patterns, in aggregate and anonymized provided that such information does not identify any Authorized User or Client and contains no personally identifying information, for its general business purposes, including developing and improving the Services.

(e) Asolva will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Client, an Authorized User, or any other third party acting on Client’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Asolva will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Client, an Authorized User, or any other third party acting on Client’s behalf.

(f) Client grants Asolva a limited, non-exclusive, non-transferable, royalty-free license to use Client Marks solely for display on (a) the Services provided to Client, (b) training and marketing materials, (c) on Asolva’s website, and (d) in a written case study on Client’s use of the Services. Asolva shall comply with any written trademark usage guidelines that Client provides. These terms shall not create any right, title, or interest in the Client Marks other than as expressly stated in this Section and all goodwill associated with the Client Marks will inure to the benefit of Client.

10. Compliance: Each party will comply with all laws and regulations that apply to its activities under these terms, including the provisions of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act (commonly referred to as the “HITECH Act”), and the regulations promulgated under the foregoing from time to time by the United States Department of Health and Human Services (collectively, as amended from time to time, “HIPAA”) and with the terms of the then-current HIPAA Business Associate Addendum (the “BAA”) by and between the parties attached hereto as Exhibit A.

11. Acknowledgements: 

(a) Client expressly acknowledges that (i) neither Asolva nor its personnel provide medical advice, (ii) neither Asolva nor its personnel recommend, endorse or discourage any specific tests, physicians, products, procedures, opinions or other information that may be contained in the Services, (iii) reliance on any information provided by the Services is solely at the risk of Client, and (iv) neither Asolva nor its personnel shall have any liability or obligation to Client with respect to any of the matters described in the foregoing clauses (i) through (iv) of this Section. Client will not make any representations that are inconsistent with these acknowledgements.

(b) Client is solely responsible for the networks, hardware, software, connectivity, and third-party services that Client uses to connect to and use the Services

12. Account Hold: Client can request to place their account on hold during rare and temporary periods of EHR or staffing transitions in which Asolva software will not be utilized. An account on hold will be disabled from login, have its data preserved and be charged at a lower price.

(a) Account Hold Features include:
(i) Price will be at 50% of prevailing published price.
(ii) Data will be frozen.
(iii) Login will be disabled.
(iv) At end of hold period, billing will automatically resume at prevailing published price.

(b) Account Hold Requirements
(i) Hold request must be made with a minimum of ten (10) business days prior to the next billing cycle of the hold period.
(ii) A hold must be for a minimum of three (3) months.
(iii) One (1) hold request per calendar year.
(iv) Client’s billing must be current.

(c) While on hold, if Client’s billing is not current and Client does not respond to Asolva’s attempts for collection, the hold status will be lifted and Asolva will consider the account as abandoned and Asolva reserves the right to delete the Client’s account and associated data.
(d) Client is on a monthly subscription plan.

13. Limited Warranty:

(a) Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under these terms, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation.

(b) ASOLVA HEREBY REPRESENTS AND WARRANTS THAT THE SOFTWARE MODULE(S) WILL SUBSTANTIALLY PERFORM IN ACCORDANCE WITH ITS APPLICABLE DOCUMENTATION. OTHER THAN AS STATED IN THE PRECEDING SENTENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, SOFTWARE MODULES, AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ASOLVA DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, AND NON-INFRINGEMENT. ASOLVA DOES NOT PROMISE THAT THE SERVICE, SOFTWARE MODULES, OR DOCUMENTATION WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE, OR THAT CLIENT’S DATA WILL BE AVAILABLE, SECURE OR FREE FROM LOSS.

14. Client’s Responsibility to Protect Content:
CLIENT IS RESPONSIBLE FOR MAINTAINING APPROPRIATE SECURITY MEASURES, INCLUDING USING ADDITIONAL ENCRYPTION TECHNOLOGY TO PROTECT ITS CONTENT FROM UNAUTHORIZED ACCESS AND DISCLOSURE, AND FOR KEEPING BACKUP COPIES OF ALL CONTENT. ASOLVA HAS NO RESPONSIBILITY OR LIABILITY FOR DELETION, CORRUPTION OR OTHER DAMAGE TO OR LOSS OF CONTENT.

15. Indemnification, Infringement:

(a) Asolva will indemnify, defend, and hold Client harmless from any loss, damage, or cost (including reasonable attorney’s fees) arising out of any third-party claims alleging that Asolva’s proprietary technology that provides the Services, in the form provided by Asolva, infringes any U.S. patent, or incorporates any misappropriated U.S. trade secret. Upon notice of an alleged infringement or if, in Asolva’s opinion, such a claim is likely, Asolva shall have the right at its option to (a) obtain the right for Client to continue using the Services or (b) replace or modify the Services so that they become non-infringing without substantially compromising their capabilities or functionalities. In the event that none of these options is reasonably available in Asolva’s opinion, Asolva may terminate the affected Service or this Agreement and refund the pro rata portion of any corresponding prepaid fees based upon the percentage of the term that has transpired. The foregoing obligations shall not apply with respect to Client’s misuse or modifications to the Services, or Client’s use of the Services in combination with any element not provided by Asolva. The provisions of this Section constitute Client’s sole and exclusive remedies and Asolva’s entire obligation to Client with respect to such infringement.

(b) Client will indemnify, defend and hold Asolva harmless from any loss, damage or cost (including reasonable attorney’s fees) arising out of any third-party claims arising out of or related to (i) Client’s violation of any applicable law or regulation (including HIPAA), (ii) breach of these terms or (iii) the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark by way of Asolva’s use of any Client Data, Client Marks, or other information or materials provided by Client in connection with this Agreement.
(c) To qualify for such defense and/or payment, the indemnified party must (a) give the indemnifying party prompt written notice of any such claim (unless the failure to notify does not materially and adversely affect the indemnifying party’s ability to defend the claim), (b) allow the indemnifying party to control the defense and all related settlement negotiations, and (c) fully cooperate with the indemnifying party in the defense and in any related settlement negotiations, at the indemnifying party’s expense. The indemnifying party will not enter into any settlement or compromise that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may engage independent counsel of its choosing at its own cost and expense.

16. Limits of Liability:

(a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING UNDER THIS AGREEMENT, FROM THE USE OR INABILITY TO USE OR ACCESS THE SERVICES, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS OR NETWORK OR INTERNET FAILURE.

(b) EXCEPT FOR LIABILITY ARISING OUT OF ANY BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, ASOLVA’S CUMULATIVE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CLIENT FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

17. Confidentiality:

(a) Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, personnel, technology, services, and products (“Confidential Information”). Each party will use the same care to protect the other party’s Confidential Information as it uses for its own similar information, but in no event less than reasonable care, will use Confidential Information only for the purpose of fulfilling its obligations under these terms and will disclose Confidential Information to third parties only as required by law or to its attorneys, accountants and other advisors who need to know such information and are bound by confidentiality obligations consistent with these terms.

(b) Confidential Information does not include any information that: (a) is known to the receiving party prior to receipt from the disclosing party, (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party, (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these terms by the receiving party, or (d) is independently developed by the receiving party without reliance on the Confidential Information.

18. Audit Rights. Client shall keep all usual and proper books and records pertaining to the Services provided by Asolva pursuant to these terms. During the Term and for one year thereafter, Asolva and/or its designated representatives, shall have the right to audit Client (including by inspecting and copying any such books and records), to verify its compliance with these terms. Asolva shall conduct such audits during Client’s normal business hours and in such a manner not to unreasonably interfere with Client’s normal business operations. Asolva may conduct such audit from time to time with seven (7) days written notice to Client or as Asolva deems necessary to ensure compliance with these terms. Asolva reserves the right to audit, at Asolva’s sole cost and expense, Client’s compliance with any access or licensing restrictions contained in this Agreement subject to the following restrictions: (a) Asolva shall request an audit upon at least thirty (30) days prior written notice to Client; (b) Asolva shall follow all of Client’s policies and procedures regarding access Client’s premises and equipment; and (c) Asolva may not request an audit more than once per calendar year.

19. Mergers and Acquisitions. For the purpose of calculating the Fees, it is not the parties’ intention that the Fees charged under this Agreement will include Authorized Users, and/or Services added through a merger or acquisition. Accordingly, in the event of any merger or acquisition that would result in additional Authorized Users and/or Services being acquired, such additional Authorized Users, and/or Services will not be covered by the Fees charged under this Agreement. Client agrees that such Authorized Users, and Services shall be subject to additional fees, based upon the then-current listed price for the additional Authorized Users, and/or Services resulting from the acquisition or merger. For the avoidance of doubt a merger and/or acquisition shall not entitle Client to terminate the Order Form and these terms other than in accordance with the terms herein.

20. Termination and Effect of Termination:

(a) Either party may terminate an Order Form immediately if the other party materially breaches any of these terms and fails to cure such breach within 30 days of receiving a written notice to cure. Immediately upon expiration or termination, Client will stop accessing and using the Services, return or destroy any documentation in Client’s possession, and both parties will abide by the requirements regarding Confidential Information in Section 17.

(b) Customer may not terminate an Order Form for convenience

21. Miscellaneous:

(a) As between Asolva and Client, Asolva exclusively owns all right, title and interest in the Services, the de-identified data generated as output of the Services and all intellectual property rights related to the foregoing. Asolva reserves all rights not expressly granted herein.

(b) These terms are governed by the laws of the State of New York, excluding its choice of laws principles. Except for the optional arbitration described in this Section, the parties will resolve any disputes in the courts of the State of, New York. Excluding claims for equitable relief, if the total amount in dispute is less than Ten Thousand United States Dollars (USD $10,000), either party may elect to resolve the claim through binding arbitration by initiating arbitration through an established provider that is agreed by the parties. The arbitration must be conducted under the following rules: (a) at the choice of the party seeking relief, the arbitration shall be conducted by telephone, online, or solely on written submissions; (b) no party or witness will make any personal appearance unless the parties agree otherwise; and (c) the prevailing party may have the arbitrator’s award entered as a judgment in any court of competent jurisdiction. Whether in court or in arbitration, the initiating party must bring all claims in its individual capacity and not as a plaintiff or class member in a class action or similar proceeding.

(c) Each Order Form or Statements of Work together with these terms constitute the complete understanding between the parties with respect to this subject matter and supersedes all other written or oral agreements and representations. If any provision of these terms is unenforceable, the remaining provisions will continue in full force provided the original intent of the parties can still be fulfilled, and the unenforceable provision shall be modified to the minimum extent necessary to be effective. These terms may be modified only in a writing executed by both parties. 

(d) A party’s failure to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy.

(e) Neither party may assign an Order Form or the rights or obligations hereunder without the express written consent of a duly authorized signatory of the other party, except that a party may assign all of its rights and obligations, with written notice, to its affiliates or to a third party who has acquired all or substantially all of the business or assets of such party through a sale, merger, consolidation, reorganization, or similar transaction. Any attempted assignment in violation of the previous sentence shall be null and void. Except as set forth above, an Order From or Statement of Work shall inure to the benefit of and be binding upon the parties, their successors and permitted assigns.

(f) Except for payment obligations, no party shall be liable for a failure or delay in performing any of its obligations if, but only to the extent that, such failure or delay is due to causes beyond the reasonable control of the affected party.

(g) Client will designate a Client Administrator as its point of contact with Asolva. Asolva will communicate with Client by emailing the address associated with the Client Administrator. Client is responsible for notifying Asolva in writing when a Client Administrator has been assigned and/or there is a change of contact information of a Client Administrator. Client can provide any notices to Asolva under this Agreement at the contact information appearing below or to such other place as Asolva may designate in writing. 
Asolva, Inc.
2429 Military Road, Suite 300
Niagara Falls, NY 14304
Attention: Asolva Legal

(h) The parties are independent contractors. Nothing in these terms creates an agency relationship, partnership, joint venture, or any similar relationship between the parties. There are no third party beneficiaries to these terms.

(i) In the event Asolva receives a subpoena, court or administrative order or other discovery request or mandate for release of Confidential Information, if not prohibited by law, Asolva shall notify Client in writing prior to responding to such request to enable Client to object, move to quash or seek a protective order as it deems appropriate.  Asolva shall notify Client of the request as soon as reasonably practicable, but in any event within five (5) business days of receipt of such request. If Asolva is required to produce records pursuant to such a subpoena, order or discovery demand, the Client shall reimburse Asolva for all costs associated with the production.

Exhibit A
BUSINESS ASSOCIATE ADDENDUM

THIS BUSINESS ASSOCIATE ADDENDUM (the “Addendum”) is made and entered into between ASOLVA, INC. (“Asolva”), and CLIENT (“Client”).

Client is a Covered Entity (or is a Business Associate to one or more Covered Entities) pursuant to the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act (commonly referred to as the “HITECH Act”), and the regulations promulgated under the foregoing from time to time by the United States Department of Health and Human Services (collectively, as amended from time to time, “HIPAA”).

Client and Asolva have entered into one or more Order Forms incorporating the Terms of Use  (which together form the services agreement between the parties hereinafter the “Services Agreement”) pursuant to which Asolva will provide certain services to Client (the “Services”), and in the course of providing the Services, Client may make available to Asolva or have Asolva obtain or create on its behalf information that may be deemed Protected Health Information subject to the provisions of HIPAA and information subject to protection under other federal or state laws.

In order to comply with the applicable provisions of HIPAA and other federal or state laws as applicable, the parties agree as follows:

1. Definitions.

1.1. Capitalized terms used but not otherwise defined in this Addendum shall have the meanings ascribed in HIPAA (whether or not such terms are capitalized therein). 

1.2. “Effective Date” means the date on which this Addendum is executed by the parties.

1.3. “Electronic PHI” means PHI that is Electronic Protected Health Information.

1.4. “PHI” means Protected Health Information received or accessed by Asolva from or on behalf of Client or created, transmitted, or maintained by Asolva for or on behalf of Client.

2. Permitted Uses. Asolva may use PHI only as permitted or required by this Addendum and only for the following purposes:

(i) as necessary to perform the Services, including the provision of certain Data Aggregation services relating to the Health Care Operations of Client;

(ii) to carry out its legal responsibilities;

(iii) for the proper business management and administration of Asolva; 

(iv) to de-identify PHI obtained by Asolva under this Addendum in accordance with the standards set forth under HIPAA at 45 CFR § 164.514 and use such de-identified data in accordance with the de-identification requirements of the Privacy Rule; and

(v) as Required By Law.

3. Permitted Disclosures.  Asolva may disclose PHI only as permitted or required by this Addendum for the following purposes:

(i) as necessary to perform the Services;

(ii) for the proper business management and administration of Asolva or to carry out its legal responsibilities, if Required By Law, or if Asolva has obtained reasonable assurances that the recipient will (A) hold such PHI in confidence, (B) use or further disclose it only for the purpose for which it was received or as Required By Law, and (C) notify Asolva of any instance of which the recipient becomes aware in which the confidentiality of such PHI has been breached; and

(iii) as otherwise Required By Law.

4. Prohibited Uses and Disclosures.

4.1. Subject to Client’s compliance with its obligations set forth in Section 17 as applicable, Asolva shall not use or further disclose PHI in a manner that would violate HIPAA if done by Client.

4.2. If Client notifies Asolva that Client has agreed to be bound by additional restrictions on the uses or disclosures of PHI pursuant to Section 17, Asolva shall be bound by such additional restrictions and shall not use or disclose PHI in violation of such additional restrictions.

4.3. Asolva shall not sell PHI or otherwise receive remuneration, directly or indirectly, in exchange for PHI; provided, however, that this prohibition shall not affect payment to Asolva by Client for performance of the Services.

4.4. Asolva shall not use or disclose PHI for purposes of marketing or fundraising, unless the Services include such marketing or fundraising.

5. Subcontractors and Agents.  Any disclosure to a Subcontractor or agent of Asolva shall be pursuant to a written agreement between Asolva and such Subcontractor or agent containing substantially the same restrictions and conditions on the use and disclosure of PHI as are set forth in this Addendum.

6. Minimum Necessary. Client shall only provide and Asolva shall only request, access, use, and disclose only the minimum amount of PHI necessary, in accordance with HIPAA, to perform the Services.

7. Certain Privacy Rule Compliance. To the extent that Asolva is to carry out one or more of Client’s obligations under Subpart E of Part 164 of HIPAA (generally known as the HIPAA Privacy Rule), Asolva shall comply with such requirements that apply to Client in the performance of such obligations.

8. Safeguards. Asolva at all times shall maintain administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, availability, and integrity of Electronic PHI that it creates, receives, maintains, or transmits in accordance with the regulations set forth at 45 CFR § 164.308, 45 CFR § 164.310, and 45 CFR § 164.312.

9. Breach Investigation and Reporting.

9.1. As soon as practicable following any actual or reasonably suspected use or disclosure of PHI in a manner not permitted under HIPAA, Asolva shall assess whether such actual or suspected impermissible use or disclosure was of PHI that is Unsecured Protected Health Information.

9.2. If pursuant to the evaluation described in Section 9.1, Asolva reasonably determines that such impermissible use or disclosure constitutes a Breach of PHI that is Unsecured Protected Health Information, Asolva shall provide Client, without unreasonable delay but in no case later than 15 business days following such determination, with such information, to the extent available, as is required pursuant to HIPAA or as reasonably requested by Client, including the date of discovery thereof, the identities of affected individuals (or, if such identities are unknown at that time, the classes of such individuals), and a general description of the nature of the incident.  Asolva shall supplement such notice with information not available at the time of the initial notification as promptly thereafter as the information becomes available to Asolva.

9.3. If pursuant to the evaluation described in Section 9.1 Asolva determines that such impermissible use or disclosure does not constitute a Breach of PHI that is Unsecured Protected Health Information, Asolva shall notify Client in writing of such impermissible use or disclosure of PHI and of such determination promptly following such determination.

9.4. For purposes hereof, an impermissible use or disclosure shall be deemed discovered by Asolva as of the first day on which such impermissible use or disclosure is known to Asolva or, by exercising reasonable diligence, would have been known to Asolva, and Asolva shall be deemed to have knowledge of an impermissible use or disclosure if such impermissible use or disclosure is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the impermissible use or disclosure, who is a Workforce member of Asolva or an agent of Asolva (determined in accordance with the federal common law of agency).

10. Security Incident Reporting. Asolva shall report to Client in writing any Security Incident involving Electronic PHI, other than a Security Incident that involves an actual or suspected impermissible use or disclosure of PHI reported pursuant to Section 9, within 30 days of Asolva’s discovery thereof. Notwithstanding the foregoing, the parties acknowledge and agree that this Section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of electronic PHI

11. Mitigation. To the extent possible, Asolva shall establish reasonable procedures to mitigate, to the extent practicable, any harmful effect of any Breach or impermissible use or disclosure of PHI in violation of the terms and conditions of this Addendum or applicable law.

12. Access and Amendment. With respect to an Individual as to whom Asolva maintains PHI, Asolva shall notify Client promptly upon receipt of a request from such an Individual for access to or a copy of such Individual’s PHI or to amend such Individual’s PHI. To the extent permitted under HIPAA, and except as otherwise required upon the order of a court of competent jurisdiction, (i) Asolva shall direct such Individual to make such request of Client and (ii) Asolva shall not consent to such access, deliver such copy, or comply with such request except as directed by Client. To the extent that Business Associate possess or maintains PHI in a Designated Record Set, Business Associate will make such PHI accessible to Covered Entity as necessary for Covered Entity to satisfy its obligations under 45 CFR 164.524 with respect to Individuals’ rights of access and amendment but will have no other obligations to Covered Entity or any Individual regarding Designated Record Sets.

13. Accounting for Disclosures. Asolva shall document all disclosures of PHI by Asolva and information related to such disclosures as would be required for Client to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with HIPAA.  Asolva shall maintain such information for the applicable period set forth in HIPAA.  Asolva shall deliver such information to Client or, upon Client’s request, to the Individual, in the time and manner reasonably designated by Client, in order for Client to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with HIPAA.

14. Audit. If Asolva receives a request, made on behalf of the Secretary of the Department of Health and Human Services, that Asolva make its internal practices, books, and records relating to the use or disclosure of PHI available to the Secretary of the Department of Health and Human Services for the purposes of determining Client’s or Asolva’s compliance with HIPAA, Asolva promptly shall notify Client of such request and, unless enjoined from doing so by order of a court of competent jurisdiction in response to a challenge raised by Client or Asolva (which challenge Asolva shall not be obligated to raise), Asolva shall comply with such request to the extent required of it by applicable law.  Nothing in this Addendum shall waive any attorney-client privilege or other privilege applicable to either party. 

15. Compliance with Law. Asolva shall comply with all applicable federal and state laws regarding individually identifiable information contained in or associated with PHI, including without limitation any state data breach laws or other state laws regarding the protection of such information.  Nothing in this Addendum shall be construed to require Asolva to use or disclose PHI without a written authorization from an Individual who is the subject thereof, or written authorization from any other person, where such authorization would be required under federal or state law for such use or disclosure.

16. Judicial and Administrative Proceedings. In the event Asolva receives a subpoena, court or administrative order or other discovery request or mandate for release of PHI, if not prohibited by law, Asolva shall notify Client in writing prior to responding to such request to enable Client to object, move to quash or seek a protective order as it deems appropriate.   Asolva shall notify Client of the request as soon as reasonably practicable, but in any event within five (5) business days of receipt of such request. If Asolva is required to produce records pursuant to such a subpoena, order or discovery demand, related to a matter not caused by Asolva’s acts or omissions in violation of this BAA the Client shall reimburse Asolva for all costs associated with the production.

17. Obligations of Client. Client shall (i) notify Asolva of any limitation in Client’s Notice of Privacy Practices to the extent that such limitation may affect Asolva’s use or disclosure of PHI, (ii) notify Asolva of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such change may affect Asolva’s use or disclosure of PHI, (iii) notify Asolva of any restriction on the use or disclosure of PHI to which Client has agreed in accordance with HIPAA, to the extent that such restriction may affect Asolva’s use or disclosure of PHI, and (iv) obtain any authorization or consents as may be Required By Law for any of the uses or disclosures of PHI.

18. Term and Termination. This Addendum shall become effective on the Effective Date and shall continue in effect until the earlier to occur of (i) the expiration or termination of the applicable Services Agreement or (ii) termination pursuant to this Section.  Either party may terminate this Addendum and the Services Agreement effective immediately if it determines that the other party has breached a material provision of this Addendum and failed to cure such breach within 30 days of being notified by the other party of the breach.  If the non-breaching party reasonably determines that cure is not possible, such party may terminate this Addendum and the Services Agreement effective immediately upon written notice to other party.

19. Effect of Termination.

19.1. Upon termination of the Services Agreement, subject to any applicable provisions of the Services Agreement, Asolva shall return to Client or destroy all PHI that Asolva maintains in any form and retain no copies of such PHI or, if return or destruction is not feasible, notify Client thereof and extend the protections of this Addendum to the PHI and limit its further use or disclosure to those purposes that make the return or destruction of the PHI infeasible.  The requirements of this Section shall survive termination or expiration of this Addendum and shall be in force as long as any PHI remains in the custody or control of Asolva.

19.2. As specified in this Addendum, Asolva will produce records in an industry standard format, any specific format requests may result in additional charges to Client.

20. Miscellaneous.

20.1. Indemnification.  Business Associate agrees to indemnify and hold harmless Covered Entity, its affiliates, and their respective officers, directors, managers, members, shareholders, employees and agents from and against any and all fines, penalties, damage, claims or causes of action and expenses (including, without limitation, court costs and reasonable attorney’s fees) arising from any violation of HIPAA, to the extent claims are caused by the negligent acts or omissions, or failure to perform its obligations, by Business Associate or its employees, directors, officers, subcontractors, agents or other members of Business Associate’s Workforce (as “Workforce” is defined by HIPAA) while providing the Services.  To the extent that any violation of HIPAA is the result of Covered Entity’s actions, then the Business Associate’s requirements under this indemnity shall be reduced by the percentage apportioned to Covered Entity for such violation.  IN NO EVENT SHALL BUSINESS ASSOCIATE’S AGGREGATE LIABILITY UNDER THIS BUSINESS ASSOCIATE AGREEMENT EXCEED THE LESSER OF THE LIMITATION OF LIABILITY SET FORTH IN THE SERVICES AGREEMENT OR THE AGGREGATE AMOUNTS RECEIVED ANNUALLY FOR THE SOFTWARE AND SERVICES.  IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE SERVICES AGREEMENT AND THIS BUSINESS ASSOCIATE AGREEMENT. SIMILARLY, THE LIABILITY CAPS SET FORTH IN THE SERVICES AGREEMENT AND THIS BUSINESS ASSOCIATE AGREEMENT SHALL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE HIGHER OF SUCH CAPS.  

20.2. Notices.  Except as otherwise provided in this Addendum, any notices and reports required or permitted hereunder shall be directed to the Asolva and Client pursuant to the notice provisions in the Services Agreement.  Such notices shall be deemed delivered (i) when personally delivered, (ii) on the third business day after deposit, properly addressed and postage pre-paid, when sent by certified or registered U.S. mail to the address provided therein, or (iii) on the next business day when sent with next-business-day instruction by recognized overnight document delivery service to the address provided therein.

20.3. Nature of Relationship. Asolva shall perform all services hereunder as an independent contractor to Client, and nothing contained herein shall be deemed to create any agency or other relationship between the parties or any of their affiliates.  Neither party shall have the right, power, or authority under this Addendum to create any duty or obligation on behalf of the other party.

20.4. Waiver.  A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of, any right or remedy as to subsequent events.

20.5. Severability. If any one or more of the provisions of this Addendum should be ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Addendum not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other government body making the ruling; (iii) the provision(s) held wholly or partly invalid or unenforceable would be deemed amended, and the court or other government body is authorized to reform the provision(s), to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling, and/or the controlling principle of law or equity leading to the ruling, subsequently is overruled, modified, or amended by legislative, judicial or administrative action, then the provision(s) in question as originally set forth in this Addendum will be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.

20.6. Entire Addendum. This Addendum, together with the Services Agreement, constitutes the entire agreement between the parties concerning the subject matter hereof.  No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect.  Each party represents and warrants that, in entering into and performing its obligations under this Addendum, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.

20.7. Amendments. This Addendum may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the parties; provided, however, that upon the enactment of any law or regulation affecting the use or disclosure of PHI, or on the publication of any decision of a court of competent jurisdiction relating to any such law, or the publication of any interpretive policy or opinion of any governmental agency charged with the enforcement of any such law or regulation.  Client may, by written notice to Asolva, propose to amend this Addendum in such a manner as Client reasonably determines necessary to comply therewith, and such proposed amendment shall become operative unless Asolva rejects such amendment by written notice to Client within 30 days thereafter, in which case, unless the parties agree on an amendment within 30 days after Asolva’s notice, either party may terminate this Addendum by written notice to the other.

20.8. No Third Party Beneficiaries. No provision of this Addendum is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever, and any implication to the contrary is expressly disclaimed by each party.

20.9. Headings; Interpretation. The headings of the sections used in this Addendum are included for convenience only and are not to be used in construing or interpreting this Addendum.  In the event of a conflict between the provisions of this Addendum and any provisions of the Services Agreement, the provisions of this Addendum shall control.  In the event of an inconsistency between the provisions of this Addendum and mandatory provisions of HIPAA, as amended, or its interpretation by any court or regulatory agency with authority over either party hereto, HIPAA (interpreted by such court or agency, if applicable) shall control.  Where provisions of this Addendum are different from those mandated under HIPAA but are nonetheless permitted by such rules as interpreted by relevant courts or agencies, the provisions of this Addendum shall control.