Last Updated and Effective: December, 2024
These TERMS AND CONDITIONS (this “Terms”) govern the relationship between J&J Companies, LLC d/b/a OneCarePCM, a North Carolina limited liability company (“OneCarePCM”), and the Customer identified in the Statement of Work referencing these Terms (“Customer”). Each of OneCarePCM and Customer may be referred to herein individually as a “Party,” and collectively as the “Parties.”
When used in these Terms (other than in Section headings), the following initially capitalized terms will have the meanings assigned to them in this Section 1, and include the plural as well as the singular, and all participles of each such term, as applicable. Certain other initially capitalized terms may be defined elsewhere in these Terms.
1.1 “Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2 “Affiliate” means, with respect to a Person, any legal entity which directly or indirectly controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” means the power to direct a Person (or to cause the direction of the management of such Person), whether through ownership of more than fifty percent (50%) of the voting securities of such Person, by contract, or otherwise.
1.3 “Agreement” means these Terms, together with: (a) all exhibits, schedules, or other attachments hereto; and (b) all SOWs.
1.4 “Applicable Law” means all laws, ordinances, rules, and regulations of any Governmental Authority that apply to the activities contemplated under this Agreement.
1.5 “Authorized User” means Customer’s employees or agents (or Third Parties pre approved in writing by OneCarePCM): (a) who are authorized by Customer to access and use the OneCare Solution under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the OneCare Solution has been purchased hereunder.
1.6 “Customer Data” means any and all information, data, or content provided to, uploaded, or otherwise input into the OneCare Solution, or any component thereof, by or on behalf of Customer (including by Authorized Users).
1.7 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of Third-Party services.
1.8 “Fees” means amounts payable by Customer to OneCarePCM in consideration of the Services, as set forth in the applicable SOW.
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1.9 “Governmental Authority” means any: (a) federal, state, local, municipal, foreign, or other government; (b) governmental or quasi-governmental authority of any nature (including any agency, board, body, branch, bureau, commission, council, department, entity, governmental division, instrumentality, office, officer, official, organization, representative, subdivision, unit, and any court or other tribunal); (c) multinational governmental organization or body; or (d) entity or body exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military, or taxing authority or power of any nature.
1.10 “Expenses” means out-of-pocket expenses incurred by OneCarePCM in connection with its performance of Professional Services.
1.11 “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, or network, or any application or function of the foregoing or the security, integrity, or confidentiality of any data processed thereby.
1.12 “Intellectual Property Rights” means any and all current or future: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing ((a)-(e)), in each case, in any jurisdiction throughout the world.
1.13 “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including reasonable attorneys’ fees and expenses of litigation.
1.14 “OneCarePCM Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of OneCarePCM or any Subcontractor.
1.15 “OneCare Platform” means: (a) OneCarePCM’s software platform known as “OneCare”; and (b) any (i) computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, work flows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, Third-Party services or other tangible or intangible technical material, information, or works of authorship, and (ii) computers, software, hardware, databases, electronic systems, networks, or other information technology infrastructure (whether operated directly by OneCarePCM or through the use of Third-Party services), in each case ((i) or (ii)) underlying or otherwise used to make the software platform described in the foregoing clause (a) available for access and use on a software-as-a-service basis. For the avoidance of doubt, OneCare Platform does not include Customer Data.
1.16 “OneCare Solution” means the features and functionalities of the OneCare Platform made available for access and use by Customer and Authorized Users on a software-as-a-service basis, as set forth in the applicable SOW.
1.17 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, Governmental Authority, unincorporated organization, trust, association or other entity.
1.18 “PHI” means “protected health information” as defined at 45 C.F.R. § 160.103.
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1.19 “Professional Services” mean any implementation, training, or other services (other than the SaaS Services) to be provided by OneCarePCM to Customer, as set forth in an SOW.
1.20 “Representatives” means, with respect to a Party, such Party’s Affiliates, and its and their respective employees, officers, directors, consultants, agents, independent contractors, OneCarePCMs, sublicensees, subcontractors, and legal advisors.
1.21 “SaaS Services” means the provision of the OneCare Solution by or on behalf of OneCarePCM.
1.22 “Services” means, collectively: (a) SaaS Services; (b) Professional Services, and (c) Support Services.
1.23 “Statement of Work” or “SOW” means a statement of work entered into by the Parties pursuant to this Agreement, describing in reasonable detail all Services and deliverables to be provided thereunder, and setting forth, among other things: (a) the OneCare Solution to be provided thereunder, if any; (b) the Professional Services to be provided to Customer thereunder, if any; (c) a schedule of Fees and any pre-approved Expenses; and (d) the term of such SOW.
1.24 “Support Services” means diagnosis, and where feasible correction, by OneCarePCM of failures of the OneCare Solution to materially operate in accordance with the applicable SOW.
1.25 “Taxes” means any and all federal, state, local, or foreign sales, use, excise, value-added or other similar taxes, charges, fees, levies, or imposts.
1.26 “Third Party” means any Person other than the Parties or their Affiliates. “Third-Party” has the corresponding meaning.
2.1 SOWs. Services will be provided by OneCarePCM pursuant to one or more SOWs. All SOWs must be in writing and signed by an authorized representative of each Party to be effective. Each executed SOW will be governed by this Agreement and each will be, and hereby is, incorporated herein by reference. In the event of any conflict or inconsistency between a provision of the body of this
Agreement and a provision set forth in an SOW, the body of this Agreement will control unless the applicable SOW expressly states an intent to supersede such conflicting or inconsistent provision.
2.2 SaaS Services. Subject to and in accordance with this Agreement, including payment of all applicable Fees, OneCarePCM will use commercially reasonable efforts to provide the SaaS Services. During the term of the applicable SOW and subject to the terms of this Agreement, OneCarePCM hereby grants Customer the right for its Authorized Users to access and use the OneCare Solution for Customer’s internal use. OneCarePCM reserves the right, in its sole discretion, to make any changes to the OneCare Solution, provided that such changes do not materially adversely affect the functionality of the OneCare Solution.
2.3 Access Credentials. OneCarePCM will provide Customer (or Authorized Users directly) with Access Credentials within a reasonable time following execution of the applicable SOW, and promptly thereafter to new Authorized Users as requested by Customer. Notwithstanding the foregoing, any Third-Party contractor of Customer who Customer desires as an Authorized User must be either
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identified in the applicable SOW or pre-approved in writing by OneCarePCM before such Access Credentials will be issued, such approval not to be unreasonably withheld.
2.4 Professional Services. Subject to the terms and conditions of this Agreement, OneCarePCM will use commercially reasonable efforts to provide the Professional Services, if any, in accordance with the applicable SOW.
2.5 Support Services. During the Term, OneCarePCM will upon Customer’s reasonable request and subject to the terms and conditions of this Agreement use commercially reasonable efforts to provide Support Services based on the nature and severity of the request between the hours of 8AM and 5PM, Monday through Friday (excluding holidays). To request such support, Customer may contact OneCarePCM by phone at 919-341-9267 or by email at support@ams-software.com or through such other alternative contacts that OneCarePCM may provide to Customer from time to time.
3.1 Fees; Expenses; Taxes. Customer will pay the fees set forth in each SOW for the Services to be provided thereunder (“Fees”). Customer will reimburse OneCarePCM for any expenses incurred by OneCarePCM in connection with the performance of an SOW and that are set forth in such SOW or otherwise pre-approved by Customer in writing (“Expenses”). Customer will pay any and all sales, use, excise, value-added or other similar taxes, charges, fees, levies, and imposts imposed by a Governmental Authority as a result of the performance of this Agreement (other than any taxes on OneCarePCM’s net income) (collectively, “Taxes”), provided that such Taxes are invoiced to Customer by OneCarePCM.
3.2 Invoicing; Payment. OneCarePCM will invoice Customer for any Fees, Expenses, Taxes, or other amounts due to OneCarePCM hereunder in accordance with the applicable SOW. Unless otherwise specified in the applicable SOW, Customer will pay undisputed invoices within ten (10) calendar days of the date of each such invoice. All Fees, Expenses, Taxes, or other amounts due to OneCarePCM hereunder: (a) will be denominated and paid in U.S. dollars; and (b) will be paid via electronic transfer of immediately available funds to a bank account designated by OneCarePCM. If any undisputed amounts due hereunder are not paid when due, then: (x) OneCarePCM may charge interest on such amounts at a rate of the lesser of 5 percent (5%) per month or the highest rate permissible under Applicable Law from the date due until the date such amounts (including all accrued interest thereon) are paid to OneCarePCM; and (y) OneCarePCM may, in OneCarePCM’s sole discretion, suspend the provision of Services, or any portion thereof, without breach of this Agreement or any liability to Customer, until such amounts (including all accrued interest thereon) are paid to OneCarePCM. If Services are suspended by OneCarePCM pursuant to the foregoing clause (y), then (unless this Agreement is terminated pursuant to Section 12.2), OneCarePCM will reinstate the provision of such suspended Services upon Customer’s payment of such amounts (including all accrued interest thereon), provided that OneCarePCM may require reasonable credit guarantees before such re-instatement of Services. If any undisputed amounts due hereunder remain unpaid for more than sixty (60) calendar days after the date due, then Customer will be responsible for, and agrees to pay (in addition to such amounts and all accrued interest thereon), OneCarePCM’s reasonable costs and expenses of collecting such amounts and all accrued interested thereon, including applicable court costs and attorneys’ fees.
3.3 Disputes. In the event that Customer disputes any portion of an invoice: (a) Customer will pay any undisputed portion as set forth in Section 3.2; (b) Customer will provide OneCarePCM with written notice of such dispute on or before the date such invoice is due, which notice will describe the dispute in reasonable detail; (c) the Parties will cooperate in good faith to resolve such dispute promptly, but in any event for a period of at least thirty (30) calendar days; and (d) in the event that the Parties are
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unable to resolve the dispute within such thirty (30)-day resolution period, then such dispute will be resolved in accordance with Section 13.9.
4.1 Use Restrictions. Customer will not, and will not permit its Representatives or Authorized Users to, access or use the OneCare Solution except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Customer will not, and will ensure that its Representatives will not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the OneCare Solution; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the OneCare Solution to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the OneCare Solution, in whole or in part; (d) bypass or breach any security device or protection applied to the OneCare Solution or access or use the OneCare Solution other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the OneCare Solution, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the OneCare Solution or OneCarePCM’s provision of services to any Third Party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, warranties, or disclaimers or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the OneCare Solution, including any copy thereof; (h) access or use the OneCare Solution in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Third Party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other OneCarePCM client), or that violates any Applicable Law; (i) access or use the OneCare Solution for purposes of competitive analysis of the OneCare Solution, the development, provision, or use of a competing software service or product or any other purpose that is to OneCarePCM’s detriment or commercial disadvantage; or (j) otherwise access or use the OneCare Solution beyond the scope of the authorization granted under this Agreement.
4.2 Suspension of Services. OneCarePCM may, without liability to Customer, suspend performance under this Agreement (including by suspending Customer’s or any Authorized User’s ability to access and use the OneCare Solution) upon notice to Customer in the event that: (a) OneCarePCM reasonably determines that a threat to the technical security or integrity of the OneCare Solution exists, provided that OneCarePCM promptly recommences performance upon the cessation of such threat; (b) OneCarePCM receives an order, subpoena, or law enforcement request from any Governmental Authority that expressly or by reasonable implication requires OneCarePCM to do so; or (c) OneCarePCM reasonably believes that Customer or any Authorized User has failed to comply with this Agreement, or has been or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any OneCare Solution. This Section 4.2 does not limit any of OneCarePCM’s other rights or remedies, whether at law, in equity or under this Agreement.
5.1 Customer Systems; Cooperation. Customer will, at all times during the Term: (a) acquire and maintain Internet service and any hardware or software required to access and use the OneCare Solution; (b) provide all information, cooperation, and assistance as OneCarePCM may reasonably request to enable OneCarePCM to perform its obligations under and in connection with this Agreement; and (c) retain sole responsibility for all access to and use of the OneCare Solution by any Person by or through the Access Credentials or any means controlled by Customer or any Authorized User, with or
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without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Customer understands that OneCarePCM’s ability to meet any deadlines set forth in the applicable SOW is conditioned upon Customer’s cooperation with OneCarePCM, including Customer’s compliance with this Section 5.1. Customer hereby acknowledges and agrees OneCarePCM will not be in breach of this Agreement or the applicable SOW, and will not be liable for, delays caused primarily by Customer’s failure to provide such cooperation or otherwise comply with Section 5.1, and any such delays will not affect Customer’s payment obligations hereunder.
5.2 Use of the OneCare Solution for Healthcare Activities. Customer acknowledges and agrees that, notwithstanding any warranties or other terms in the Agreement, and without limiting any disclaimers set forth in the Agreement, the OneCare Solution is not intended to substitute for the function or services of properly trained and licensed individuals, including without limitation physicians or other clinicians, or billing, coding, or claims personnel. Customer is and shall be solely responsible and liable for, and neither OneCarePCM nor the providers of any Third-Party services underlying or otherwise used to make the OneCare Solution available are responsible or liable for: (i) any advice, course of treatment, diagnosis, or any other information or services that any patient or other individual may obtain or receive; (ii) billing, coding, or claims activities conducted by Customer or Authorized Users; or (iii) for the accuracy, completeness, or suitability of any data or information used in any healthcare activities.
5.3 Use of OneCare Solution Communications Features. The OneCare Solution may include functionality enabling Customer to communicate with individuals through email, SMS, MMS, or other text messages (such functionality, the “Communications Features”). Customer is solely responsible for any use of the Communications Features by Customer and Authorized Users, including the contents of any message or other communication sent or received through the Communications Features; and shall ensure that any message, communication, process, action, or decision related to Customer’s and its Authorized Users’ use of the Communications Features does not violate any Applicable Laws. Without limiting any other provision of the Agreement, Customer further agrees that:
(a) Customer shall comply with all laws and regulations governing communications to or from recipients of messages transmitted through the Communications Services, including the U.S. CAN-SPAM Act, U.S. Telephone Consumer Protection Act, Canadian Anti-Spam Legislation, S.C. 2010, c. 23, local and state or provincial analogs to the foregoing, and industry and carrier regulations and best practices including but not limited to the CTIA’s Messaging Principles and Best Practices and any other applicable federal, state, local or foreign laws and regulations that require (a) documented consent be obtained prior to transmitting, recording, collecting, or monitoring data or communications; or (b) compliance with opt-out requests for any data or communications; or (c) the inclusion of prescribed disclosures or other content in such data or communications (collectively, the “Communication Laws”). Without limiting the foregoing, Customer shall provide all notices and obtain all consents and approvals required under the Communications Laws and other Applicable Laws from message recipients to permit such collection and monitoring.
(b) Customer shall not, and shall not permit any Authorized User to: (a) use the Communication Features to impersonate any other person or entity, or communicate in a fraudulent or deceptive manner; (b) knowingly interfere in any manner with the operation of the Communication Features, or the hardware and network used to operate the Communication Features; or (c) use the Communications Features to transmit or store any content or communication that is illegal, harmful, unwanted, inappropriate, objectionable, including but not limited to any content or communication that (i) is false or inaccurate; (ii) is hateful or encourages hatred or violence against individuals or groups; (iii) could endanger public safety; or (iv) is designed to evade filters or other mechanisms intended to detect or prevent unwanted messages.
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5.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 4, or of any actual or threatened failure to comply with the requirements of Sections 5.2 and 5.3, Customer will, and will cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the OneCare Solution and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify OneCarePCM of any such actual or threatened activity.
6.1 OneCarePCM’s Security Obligations. OneCarePCM will implement and maintain commercially reasonable administrative, technical, and physical safeguards intended to prevent unauthorized exposure or disclosure of Customer Data. OneCarePCM will review its security controls regularly, but no less than annually, and update and maintain them to ensure they are commercially reasonable.
6.2 Protected Health Information. To the extent that OneCarePCM, acting as a “Business Associate” as such term is defined at 45 C.F.R. § 160.103, collects, receives, uses, maintains, creates, discloses, transmits, destroys, or otherwise processes PHI on behalf of Customer, acting as a “Covered Entity” as such term is defined at 45 C.F.R. § 160.103, the Parties agree to be bound by the business associate agreement set forth at Exhibit A. Customer shall not request that OneCarePCM, or cause OneCarePCM to, collect, receive, use, maintain, create, disclose, transmit, maintain, destroy, or otherwise process PHI in any manner that violates any Applicable Law.
6.3 Customer Control and Responsibility. Customer will be solely responsible for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the Customer Systems and the security thereof; and (d) the security and use of Customer’s and its Authorized Users’ Access Credentials.
7.1 OneCare Solution. As between Customer and OneCarePCM, all right, title, and interest in and to the OneCare Solution, including all Intellectual Property Rights therein, is and will remain the sole and exclusive property of OneCarePCM.
7.2 Customer Data. As between Customer and OneCarePCM, all right, title, and interest in and to the Customer Data, including all Intellectual Property Rights therein, is and will remain the sole and exclusive property of Customer. Notwithstanding the foregoing, Customer hereby grants to OneCarePCM, its Subcontractors, and OneCarePCM Personnel a non-exclusive, royalty-free, fully paid up, assignable, sublicensable, license to access, use, and modify the Customer Data to the extent necessary for the performance of OneCarePCM’s obligations hereunder.
7.3 Feedback. Customer and Authorized Users may provide OneCarePCM with error reports, suggestions, feedback, oral and written reports, ideas, or concepts regarding the Services (collectively, “Feedback”). To the extent Customer or Authorized Users provide Feedback, Customer hereby assigns to OneCarePCM all right, title, and interest in and to Feedback, including all intellectual property rights embodied therein.
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7.4 Reservation of Rights. Except as set forth in Section 2.2, nothing in this Agreement grants any right, title, or interest in or to any Intellectual Property Rights in or relating to the OneCare Solution, whether expressly, by implication, estoppel or otherwise.
9.1 Definition of Confidential Information. “Confidential Information” means all information disclosed during the Term by a Party (or by such Party’s Representatives) (the “Disclosing Party”) to the other Party (the “Receiving Party”), or to such other Party’s Representatives, whether in written, visual, oral, electronic, or other form. “Confidential Information” will also include and any and
all notes, analyses, memoranda, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, or other documents or materials prepared by or on behalf of the Receiving Party or its Representatives that are based on or derived from (in whole or in part), or that otherwise contain or embody, any Confidential Information of the Disclosing Party. For the avoidance of doubt: (a) all Customer Data constitutes Customer’s Confidential Information, with respect to which Customer will be deemed the Disclosing Party, and OneCarePCM will be deemed the Receiving Party; and (b) all information regarding OneCare constitutes OneCarePCM’s Confidential Information, with respect to which OneCarePCM will be deemed the Disclosing Party, and Customer will be deemed the Receiving Party.
9.2 Exceptions. Notwithstanding Section 8.1, the term “Confidential Information” will not include information disclosed to the Receiving Party or its Representatives to the extent that the Receiving Party can establish, by competent evidence, that such information: (a) is or becomes part of the public domain, other than by breach of this Agreement by the Receiving Party or its Representatives; (b) was lawfully in the Receiving Party’s or any of its Affiliates’ possession at the time of disclosure by the Disclosing Party, from a source other than the Disclosing Party, without any obligation of confidentiality or restriction on use; (c) is provided to the Receiving Party or any of its Representatives without any obligation of confidentiality or restriction on use by a Third Party lawfully entitled to possess and disclose such Confidential Information; or (d) is independently developed or acquired by the Receiving Party or its Affiliates without use of, reference to, or reliance upon, the Confidential Information of the Disclosing Party.
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9.3 Confidentiality, Nonuse, and Nondisclosure Obligations. The Receiving Party and its Representatives will use the Confidential Information of the Disclosing Party only in connection with the performance of this Agreement, and such Confidential Information will not be used for any other purpose without the prior written consent of the Disclosing Party. The Receiving Party will keep the Disclosing Party’s Confidential Information confidential and secure, and will take security measures at least equal to those security measures as the Receiving Party employs to protect its own confidential information of like character (but in any event, not less than reasonable security measures) to maintain the confidentiality of the Disclosing Party’s Confidential Information and prevent disclosure to Third Parties. The Receiving Party will promptly report to the Disclosing Party any actual or suspected violation of the terms of this Section 8.
9.4 Permitted Disclosures. The Receiving Party may only disclose the Disclosing Party’s Confidential Information to such of its Representatives who: (a) have a need to know such Confidential Information in connection with the performance of the Receiving Party’s obligations under this Agreement; and (b) have been advised of the confidential nature of such Confidential Information, and who are bound by written obligations at least as protective of such Confidential Information as those contained in this Section 8. The Receiving Party will be responsible and liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by the Receiving Party’s Representatives. Notwithstanding the foregoing, the Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is: (x) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (y) required by Applicable Law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that the Receiving Party, as permitted by Applicable Law, (i) promptly notifies the Disclosing Party of such required disclosure in writing, (ii) reasonably cooperates with the Disclosing Party, at the Disclosing Party’s expense, in any lawful action to contest or limit the scope of such required disclosure, and (iii) limits any such required disclosure to only that portion of the Disclosing Party’s Confidential Information which the Receiving Party is required to disclose.
9.5 Return of Confidential Information. If requested in writing by the Disclosing Party, the Receiving Party will (and will ensure that its Affiliates will) promptly destroy (or, at the Disclosing Party’s request and expense, and to the extent embodied in tangible form, return), all or any portion of the Disclosing Party’s Confidential Information which is no longer necessary for the Receiving Party’s performance hereunder. Notwithstanding the foregoing, the Receiving Party will not be required to delete or destroy any electronic back-up files that have been created solely by the automatic or routine archiving and back-up procedures of the Receiving Party or its Representatives, to the extent created and retained in a manner consistent with its or their standard archiving and back-up procedures. In addition, the Receiving Party will be entitled to retain one (1) copy of the Disclosing Party’s Confidential Information solely for purposes of determining the scope of its obligations under this Section 8. Any Confidential Information of the Disclosing Party retained by the Receiving Party pursuant to this Section 8.5 will remain subject to the Receiving Party’s obligations under this Section 8. At the Disclosing Party’s request and expense, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 8.5.
9.6 Injunctive Relief. Both Parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 8, and that the use of Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or Third Parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of any breach or threatened breach of this Section 8, the Disclosing Party will be entitled (in addition to all other rights and remedies available under this Agreement, at law, or in equity) to seek, in any court of competent jurisdiction and without the posting of any bond: (a) an injunction restraining such breach; or (b) a decree for specific performance of the applicable provision of this Agreement.
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9.7 Duration. Notwithstanding any expiration or earlier termination of this Agreement, the Receiving Party’s obligations under this Section 7 will remain in effect for a period of five (5) years following such expiration or termination.
10.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that, as of the Effective Date: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by the Person signing the signature page hereto has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.2 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to OneCarePCM that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by OneCarePCM and processed in accordance with this Agreement, such Customer Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any Third Party or violate any Applicable Law. Customer further represents, warrants and covenants that the Services will be utilized by Customer in full compliance with all Applicable Laws.
10.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ONECAREPCM MAKES, AND CUSTOMER RECEIVES, NO WARRANTIES WHATSOEVER, AND ONECAREPCM HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED) INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF FOREGOING, ONECAREPCM MAKES NO WARRANTY OF ANY KIND THAT ANY SERVICES OR ONECARE, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, HARDWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, ERROR–FREE, OR FREE OF HARMFUL CODE.
11.1 OneCarePCM Indemnification. OneCarePCM will indemnify, defend, and hold harmless Customer and its Representatives (collectively, “Customer Indemnified Parties”) from and against any and all Losses incurred by or imposed upon any Customer Indemnified Party in connection with any claims, suits, actions, or other proceedings brought or asserted by a Third Party (each, a “Claim”), to the extent arising out of any claim that Customer’s use of the OneCare Solution infringes, misappropriates, or violates any Intellectual Property Rights of a Third Party. In the event that the OneCare Solution or any part thereof becomes subject to (or, in OneCarePCM’s sole discretion, is likely to become subject to) any such infringement-related Claim, then OneCarePCM may (at OneCarePCM’s option and expense): (a) procure for Customer the right to continue using the infringing aspects of OneCare; (b) modify the infringing aspects of the OneCare Solution to make them non-infringing; or (c) replace the infringing aspects of the OneCare Solution with a non-infringing product or service of substantially equivalent functionality. If the foregoing options ((a)–(c)) are, in OneCarePCM’s sole discretion, not available on commercially reasonable terms, then OneCarePCM may terminate this Agreement upon written notice to Customer and provide Customer with a refund of any pre-paid Fees as of such termination.
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Notwithstanding the foregoing, OneCarePCM’s indemnification obligation under this Section 10.1 will not apply to any Claim: (v) arising from the use or combination of the OneCare Solution (or any component thereof) with software, hardware, or other materials not developed or authorized by OneCarePCM, if the OneCare Solution would not be infringing in the absence of such use or combination; (w) arising from the modification of the OneCare Solution performed by any Third Party not authorized by OneCarePCM in writing, if the OneCare Solution would not be infringing in the absence of modification; (x) arising from any use of the OneCare Solution by Customer or any Authorized User in a manner outside the scope of any right granted herein or in violation of Applicable Law, if the Claim would not have arisen but for such use; (y) arising from subject matter described in clauses (c) or (d) Section 10.2. The foregoing states OneCarePCM’s entire liability, and Customer’s exclusive remedy, for any infringement, misappropriation, or violation of Intellectual Property Rights by OneCarePCM in connection with this Agreement.
11.2 Customer Indemnification. Customer will indemnify, defend and hold harmless OneCarePCM and its Representatives (collectively, “OneCarePCM Indemnified Parties”) from and against any and all Losses incurred by or imposed upon any OneCarePCM Indemnified Party in connection with any Claims (including Claims made or brought by Users), to the extent arising out of: (a) Customer Data, including any processing of Customer Data by or on behalf of OneCarePCM in accordance with this Agreement; (b) any access to or use of the OneCare Solution by or on behalf of Customer or occurring through Access Credentials issues to Customer; (c) Customer’s material breach of this Agreement; or (d) any gross negligence, willful misconduct, or violation of applicable laws, rules or regulations by any Customer Indemnified Party in connection with this Agreement. Customer’s indemnification obligations under this Section 10.2 will not apply to any Claims for which OneCarePCM is required to indemnify Customer pursuant to Section 10.1.
11.3 Indemnification Procedure. With respect to any Claim for which a Party seeks indemnification under this Section 10, the indemnified Party will: (a) promptly provide the indemnifying Party with written notice of such Claim (which notice will be provided no later than thirty (30) days after the indemnified Party becomes aware of such Claim); (b) permit the indemnifying Party, at its option, to assume control over the investigation, defense, and disposition of such Claim; (c) reasonably cooperate with the indemnifying Party, at the indemnifying Party’s reasonable expense and request, in the investigation, defense, and disposition of such Claim; and (d) promptly furnish the indemnifying Party with copies of all notices and documents (including court papers) received by the indemnified Party in connection with such Claim. In no event will the indemnifying Party settle or otherwise dispose of a Claim in any manner that admits material fault or wrongdoing by the indemnified Party, or that or incurs any non-indemnified liability on the part of the indemnified Party, without the indemnified Party’s prior written consent. In the event that the indemnifying Party assumes control over the investigation, defense, and disposition of a Claim, the indemnified party will have the right, but not the obligation, to be represented by counsel of its own selection, at its own expense.
12.1 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOSS OF PROFITS, BUSINESS, OR DATA), HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 11.1 WILL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION).
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12.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER PURSUANT TO THE SOW UNDER WHICH THE APPLICABLE CLAIM OR CAUSE OF ACTION AROSE DURING THE ONE (1)-YEAR PERIOD PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND WILL APPLY EVEN IF THE NON–BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 11.2 WILL NOT APPLY TO: (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION); OR (B) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
13.1 Term. The term of this Agreement will commence upon the Effective Date and continue thereafter until terminated as set forth in Section 12.2, provided that if at any time there has been no SOW in effect hereunder for a period of at least one (1) consecutive year, then this Agreement will expire automatically at the end of such one (1)-year period (such period, the “Term”). The term of each SOW will be as set forth therein.
13.2 Termination.
(a) Termination for Breach In the event that either Party materially breaches any provision of this Agreement or any SOW, the non-breaching Party may terminate the applicable SOW, or this Agreement in its entirety, effective upon thirty (30) calendar days’ prior written notice to the breaching Party, provided that such material breach remains uncured upon the expiration of such thirty (30)-day period.
(b) Termination for Insolvency. Either Party may terminate this Agreement in its entirety, effective immediately upon written notice to the other Party, in the event that: (i) the other Party files a petition in bankruptcy or for reorganization; (ii) a Third Party files a bankruptcy or reorganization petition against such other Party which is not dismissed within sixty (60) calendar days; (iii) an assignment is made by such other Party for the benefit of its creditors; or (iv) a receiver, trustee, liquidator, or custodian is appointed with respect to all or a substantial part of such other Party’s assets.
13.3 Effect of Termination or Expiration. Upon the termination of this Agreement in its entirety, all SOWs hereunder will be deemed terminated. Upon the termination of this Agreement in its entirety, or the expiration or termination of any SOW, then (except as otherwise expressly set forth herein): (a) all rights and licenses granted by either Party thereunder will immediately terminate; and (b) each Party will (i) cease all use of the other Party’s Confidential Information which as of such expiration or termination no longer relates to any active SOW, and (ii) if requested, return or destroy the other Party’s Confidential Information in accordance with Section 8.5.
13.4 Survival. The provisions of Sections 1 (Definitions; Interpretation) (to the extent used in other surviving provisions, 3 (Fees; Payment Terms), 4.1 (Use Restrictions), 7 (Intellectual Property), 8 (Confidentiality), 9.3 (Disclaimer of Warranties), 10 (Indemnification), 11 (Limitations of Liability), 12 (Term; Termination), and 13 (Miscellaneous) will survive any expiration or earlier termination of this Agreement. Any payment obligations incurred prior to the expiration or earlier termination of this Agreement or any SOW will survive such expiration or termination.
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14.1 Use of Name. Neither Party will use the other Party’s name or logo without such other Party’s prior written consent. Notwithstanding the foregoing: (a) OneCarePCM may, without such consent, use Customer’s name and logo for the sole purpose of identifying Customer as a customer of OneCarePCM in OneCarePCM’s marketing and promotional materials; and (b) either Party may use the other Party’s name, without such consent, to the extent necessary for such Party’s compliance with Applicable Law, any listing requirements of a securities exchange applicable to such Party, or for such Party’s bona fide regulatory purposes.
14.2 Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to create a joint venture or partnership between the Parties or to give either Party the power to act as agent for the other or to enter into any agreement on behalf of the other Party. OneCarePCM may from time to time, in its discretion, engage Third Parties to perform Services (each, a “Subcontractor”).
14.3 Force Majeure. Each Party will be excused from any delay or failure in the performance of its obligations under this Agreement (other than payment obligations) if such delay or failure results from any event beyond such Party’s reasonable control, including, acts of God, internet or telecommunications breakdowns, utility or transmission failures, power failures, denial of service attacks, acts of Governmental Authorities, acts of the public enemy, insurrections, riots, embargoes, pandemics or epidemics, labor disputes (including strikes, lockouts, job actions or boycotts), fires, floods, or other natural disasters (each, a “Force Majeure Event”).
14.4 Assignment; Successors. Neither Party may assign this Agreement or its rights or obligations hereunder without the other Party’s prior written consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, change in control or similar transaction. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of the Parties. Any attempted assignment of this Agreement or any rights or obligations hereunder in contravention of this Section 13.4 will be null and void ab initio.
14.5 Notices.
(a) Addresses. All notices related to this Agreement must be in writing, and addressed: (i) if to OneCarePCM, as set forth below in this Section 13.5(a); (ii) if to Customer, to the address set forth on the signature page to this Agreement; or (iii) to such other address as either Party may instead reasonably designate by written notice to the other Party.
Address for notices to OneCarePCM: J&J Companies, LLC (d/b/a OneCarePCM) Attn: Legal
2012 S. Main Street, Suite 510
Wake Forest, NC 27587
info@ams-software.com
(b) Delivery. All notices related to this Agreement must be delivered: (i) in person; (ii) by nationally recognized overnight courier (e.g., FedEx); or (iii) by registered or certified mail, postage prepaid, return receipt requested. All notices will be accompanied by a courtesy copy emailed to the applicable Party (which email will not constitute notice).
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(c) Receipt. Notices given in accordance with this Section 13.5 will be deemed to have been properly given: (i) if delivered in person, when actually delivered; (ii) if delivered by nationally recognized overnight courier, one (1) business day after the date sent; or (iii) if delivered by registered or certified mail, postage prepaid, return receipt requested, three (3) business days after the date postmarked.
14.6 Entire Agreement. This Agreement constitutes the entire agreement and understanding between OneCarePCM and Customer, and supersedes all prior and contemporaneous agreements, documents, and proposals, oral or written, between OneCarePCM and Customer.
14.7 No Waiver; Remedies. A Party’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. Except as expressly stated herein, the remedies described in this Agreement are cumulative, and are in addition to any other remedies that either Party may have at law or in equity.
14.8 Amendment. This Agreement (including, for the avoidance of doubt, any SOW) may not be amended or modified except by the written consent of both Parties.
14.9 Dispute Resolution; Governing Law; Forum Selection. This Agreement and any action related thereto will be governed by, construed, and interpreted in accordance with the laws of the State of North Carolina, USA, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Raleigh, North Carolina, which will be the sole forum regarding any actions, suits, or other legal proceedings relating to this Agreement (except as set forth in Section 8.6). EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT.
14.10 Construction; Interpretation. All Exhibits hereto and all SOWs hereunder are hereby incorporated into this Agreement by reference, and the term “Agreement” will be deemed to include all such Exhibits and SOWs. This Agreement will be interpreted in accordance with its terms, without any strict construction against or in favor of the drafting Party. The descriptive headings of this Agreement are for convenience only, and will be of no effect in construing or interpreting any provision. As used in this Agreement, the term “including” (or “includes”) will be deemed to mean “including without limitation” (or “includes without limitations”), and the word “or” will be deemed to be disjunctive but not necessarily exclusive.
14.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then: (a) such invalidity or unenforceability will not affect the other provisions of this Agreement; and (b) such invalid or unenforceable provision will be reformed as necessary to make it valid and enforceable, in a manner that most closely approximates the original intent of such provision.
14.12 Signatures; Counterparts. Any documents to be signed by the Parties in connection with this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via email in “PDF” form with any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign), or via other transmission method.
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Exhibit A
BUSINESS ASSOCIATE AGREEMENT
This BUSINESS ASSOCIATE AGREEMENT (this “BAA”) is made and entered into in connection with the Agreement by and between OneCarePCM (“Business Associate”), and Customer (“Covered Entity”), and is hereby incorporated therein by reference. Capitalized terms used but not defined in this BAA will have the meanings assigned in the Agreement.
WHEREAS, under the Agreement, Business Associate may perform functions or activities regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) for or on behalf of Covered Entity the performance of which may require Business Associate to create, receive, transmit, or maintain Protected Health Information in a capacity other than part of Covered Entity’s Workforce as a “business associate” (as defined at 45 C.F.R. § 160.103); and
WHEREAS, to the extent the Services require Business Associate to act as a business associate to Covered Entity, the Parties agree that this BAA sets forth the Parties intentions to comply with HIPAA and will apply to the Services; and
THEREFORE, in consideration of the Parties’ continuing obligations under the Agreement, compliance with HIPAA, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree to the provisions of this BAA.
Except as otherwise defined herein, any and all capitalized terms in this BAA shall have the meanings ascribed to those terms in the HIPAA Rules or in the Agreement, as applicable.
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Business Associate shall, following the discovery of a Breach of Unsecured Protected Health Information (“Breach”), notify Covered Entity of such Breach pursuant to 45 C.F.R. § 164.410. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Breach, Security Incident, or any use or disclosure of Protected Health Information by Business Associate or its agents or subcontractors in violation of the requirements of this BAA.
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