THIS C4U PLATFORM AGREEMENT (this Agreement) is entered into effective when a representative from the practice log in and accepts this Agreement.
W I T N E S S E T H:
WHEREAS, C4U offers a secure online platform which allows authorized users to gain access to and share Health Data (hereinafter defined) compiled by C4U;WHEREAS, Practice desires to contract with C4U for C4U to provide such platform to Practice (hereinafter defined);
WHEREAS, C4U desires to make such platform available to Practice and its patients; and
WHEREAS, the parties have agreed upon the terms and conditions of their relationship and desire to reduce such terms and conditions to writing.
NOW THEREFORE, in consideration of the mutual covenants, promises and agreements hereinafter set forth, the parties hereto agree as follows:
1. Defined Terms.
(a) Authorized Patient shall refer to a Patient (hereinafter defined) who registers for the C4U Platform (hereinafter defined), accepts the Terms and Conditions, has a direct, contractual relationship with C4U, and is granted a username and password from C4U to access the C4U Platform.
(b) Authorized User shall refer to Representative(s) of Practice (hereinafter defined) (including subcontractors whom the Practice has a Business Associate Agreement) who have been authorized by the Practice to use the Practices username and password to gain access to the C4U Platform.
(c) C4U Platform shall include the features described in Section 2(a) of this Agreement.
(d) Documentation shall include the online user manuals and other documents provided by C4U to Practice for use with the C4U Platform.
(e) Electronic Record System shall include any Third Party electronic medical record (EMR) system or electronic health record (EHR) system used by Practice during the Term of this Agreement.
(f) Health Data shall mean all Protected Health Information (PHI), e-mail messages, correspondence, and all other communication, data, or information exchanged on the C4U Platform or provided to C4U to create the C4U Platform in accordance with the terms of this Agreement, including a Patients personal, demographic, medical, disability, provider, or insurance claim information provided by Practice or Practices business partners (including, without limitation, third party administrators, pharmacy benefit companies and utilization management companies).
(g) Intellectual Property shall include all patentable or unpatentable discoveries, know-how, ideas, concepts, or products, or any works fixed in any medium of expression, including copyright and trademark rights, which are brought to bear to generate the C4U Platform or are inherent in the C4U Platform itself.
(h) Patient(s) shall refer to the patients of Practice.
(i) Person includes, without limitation, any corporation, company, partnership, entity or individual.
(j) Representative(s) of Practice shall include the Practices directors, officers, employees, agents, advisors, and controlling persons of Practice, including Authorized Users.
(k) Term shall mean the term of this Agreement as defined in Section 6(a) hereof.
(l) Third Party shall refer to any Person other than Practice or C4U.
(m) Training shall mean the training described in the Training Schedule (attached hereto as Schedule A).
2. Obligations of C4U.
(a) C4U Platform. The C4U Platform shall be accessible by the Practice and Authorized Patients through the Practices existing website or directly through C4Us online server. During the Term of this Agreement, the C4U Platform shall include the following features unless the Parties agree in writing to expand or delete features:
(i) Appointment scheduling and cancellation
(ii) Appointment reminders (e-mail or text)(iii) Prescription refills
(iv) E-communication
(v) Secure messaging
(vi) Lab results
(vii) Newsletter module
(viii) Questionnaires
(b) Access to C4U Platform. Subject to the terms and conditions of this Agreement, C4U grants to Practice and Authorized Patients a personal, non-transferable and non-exclusive right to access and use the C4U Platform solely within and for the benefit of the Practice and for no other purpose. Except as specifically provided in this Agreement, C4U assumes no responsibility for: (i) providing any improvements to the C4U Platform; (ii) maintaining the C4U Platform; or (iii) providing other services with respect to the C4U Platform.
(c) Training. C4U shall provide Training in accordance with the Training Schedule (attached hereto as Schedule A).
3. Obligations of Practice.
(a) Limitations on Use of the C4U Platform.
(i) Practice may permit its Authorized Users to access and use the C4U Platform only for the benefit of the Practice and Authorized Patients, but not for the use or benefit of any other Third Party.
(ii) Practice will limit access to the C4U Platform to those of its Authorized Users that have a reasonable need for such access and will inform the Authorized Users who are allowed such access of the restrictions contained in this Agreement on the use of the C4U Platform.
(iii) Practice will be responsible for the acts and omissions of its Authorized Users with respect to the provisions of this Agreement and use of the C4U Platform.
(iv) The right to use the C4U Platform will not extend to any Third Party other than an Authorized User or Authorized Patients, or any business or operation of a Third Party, unless and until: (i) C4U is notified in writing of the desire for such extension; and (ii) C4U and Practice agree in writing as to appropriate increases, if any, in the payments required under this Agreement.
(v) Practice will not modify, add to, transfer, copy, adapt, translate, create derivative works of, reverse engineer, de-compile or disassemble the C4U Platform ("Adaptations"). Practice will not contract with any Third Party to create Adaptations, nor use Adaptations created by any Third Party independently.
(vi) Practice represents and warrants to C4U that it will have obtained, prior to the commencement of the use of the C4U Platform, appropriate agreements with its Authorized Users who may access and use the C4U Platform sufficient to enable Practice and its Authorized Users to comply with the terms of this Agreement. In the event Practice learns or has determined that an Authorized User is in breach of a term of this
Agreement, Practice will notify C4U within five (5) days of such breach. In that event, or if C4U otherwise learns or has determined that an Authorized User is in breach, C4U shall have the right to terminate such Authorized User's access to the C4U Platform forthwith.
(vii) The parties agree to abide by the restrictions set forth in the Business Associate Agreement (attached hereto as Exhibit A) related to the use of protected health information.
(b) Electronic Record System Integration. The Practice hereby acknowledges and agrees that the C4U Platform is not a traditional Electronic Medical Records system. The Practice is not required to utilize an Electronic Record System as a condition of this Agreement; however, if the Practice does utilize an Electronic Record System at any time during the term of the Agreement, the Practice hereby acknowledges and agrees that: (i) C4U shall have no obligation to identify and/or remedy any errors or mistakes in the Electronic Record System; and (ii) C4U shall have no liability or responsibility to the Practice, any Patient, or any Third Party related to the Electronic Record System, such as integrating with an Electronic Record System.
(c) C4Us Ownership of Intellectual Property.
(i) As between the parties, C4U and its licensors are the owners of all right, title and interest, including all Intellectual Property rights, in and to the C4U Platform. Except as expressly provided herein, C4U and its licensors reserve all rights with respect to the C4U Platform and Practice shall not have or exercise any such rights not expressly granted. Practice grants C4U the right to use, copy, and incorporate Health Data into an Electronic Record System in accordance with the terms of this Agreement. Without limiting the foregoing:
(1) No right is granted to Practice: (i) for the use of the Documentation except as part of the C4U Platform; (ii) for the use of the C4U Platform for or by any Third Party; (iii) to sell, transfer, export, license, sublicense or provide any services utilizing the C4U Platform to Third Parties; (iv) to transmit the C4U Platform to any Third Party; (v) to use the C4U Platform for any purpose other than as expressly permitted under this Agreement; and
(2) No right is granted to Practice to: (i) use the C4U Platform in any public electronic bulletin board, public computer based information system, or the equivalent; (ii) publish, translate or transfer possession of the C4U Platform or copy any portion thereof; or (iii) without prior written permission from C4U, frame or deep-link into any page of the C4U Platform, or otherwise mask the appearance of C4U-identifying information on such page.
(d) No Rights by Implication. No direct or indirect ownership interest or license rights are granted or created by implication in this Agreement.4. Trademarks, Servicemarks, and Use of Other Party's Name. The parties hereby agree that neither party has a right to use, in any manner, the name, trade name or any trademark or servicemark of the other party except that, each party, with the documented consent of the other, is allowed to use in advertising, publicity, promotion, marketing, or other similar activity, any name, trade name, trademark, or other designation including any abbreviation, contraction or simulation of the other party.
5. Billing and Payment.
(a) Billing. Payment for the C4U Platform and any Training shall be made in accordance with the Payment Schedule and the Automatic Withdrawal Authorization, which has been signed separately. This is not relevant for ACCA practices.
(b) Overdue Payments. Overdue payments are subject to a late payment charge, compounded monthly, and calculated at an annual rate of six percent (6%). If the late payment rate exceeds the maximum permitted by law, the charge will be reduced to that maximum allowable rate.
(c) Taxes. Practice shall be responsible for, either through direct payment or the reimbursement of any amounts incurred by C4U, all sales taxes imposed by any authority, government or government agency (other than those levied on C4Us net income or property) in connection with this Agreement with respect to which Practice is not exempt from taxation. If C4U is required to collect a sales tax to be paid by Practice, Practice will pay this tax or provide evidence of exemption on demand. If Practice fails to pay the sales taxes, Practice will pay all reasonable expenses incurred by C4U, including reasonable attorneys fees, to collect such taxes, duties or levies.
(d) Collection for Non-Payment. If Practice fails to pay any undisputed fee, expense, tax or any other sum due under this Agreement, Practice will pay all reasonable expenses incurred by C4U in collecting those sums, including reasonable attorneys fees.
6. Term.
(a) Initial Term. The Effective Date shall be the date of acceptance of this Agreement. The term shall be for one (1) year, commencing on the Effective Date (the Initial Term).
(b) Renewal Term. Upon conclusion of the Initial Term, or any subsequent Renewal Term, this Agreement shall automatically renew for an additional term of one (1) year (each a Renewal Term) (the applicable Initial Term and any Renewal Term(s) may be referred to herein as the Term).
7. Termination.
(a) Termination Without Cause. Either party may terminate this Agreement without cause by giving the other party at least ninety (90) days prior written notice. This is also true during the first year.
(b) Termination For Cause. Except as otherwise provided herein, if either party materially breaches any term of this Agreement, the non-breaching party may terminate this Agreement by giving the breaching party thirty (30) days prior written notice.
(c) Immediate Termination by C4U. C4U may terminate this Agreement immediately by written notice to Practice upon the occurrence of certain events, including:
(i) The failure of Practice to maintain the insurance required pursuant to this Agreement;
(ii) Practice and/or a Representative(s) of Practice commits an act of fraud or unethical practice;
(iii) Practice and/or a Representative(s) of Practice materially breaches any provision of this Agreement; or
(iv) The closure of Practice or cessation of health care operations.
(d) Immediate Termination by Practice. Practice may terminate this Agreement immediately by written notice to C4U upon the occurrence of certain events, including:
(i) C4U and/or any agent or employee of C4U, commits an act of fraud or unethical practice; or
(ii) C4U and/or any agent or employee of C4U materially breaches any provision of this Agreement.
(e) No Limitation of Other Rights. The exercise of the termination rights granted to either party hereunder shall not limit or affect any other rights or remedies of such party at equity or at law.
(f) Payment Upon Termination. If the engagement of C4U is terminated pursuant to the provisions of this Section 7, Practice shall pay to C4U any payment(s) earned but not paid to C4U prior to such termination in accordance with the Payment Schedule (attached hereto as Schedule B). Such payment shall be in full and complete discharge of any and all liabilities or obligations of Practice to C4U hereunder, and C4U shall be entitled to no further benefits under this Agreement.
8. Mutual Indemnification. To the extent permitted by law, each party (the Indemnitor) shall indemnify the other party (the Indemnitee) for any and all damages, liabilities, costs, and expenses (including, but not limited to, attorneys fees) reasonably incurred by or awarded against Indemnitee which relate to a claim or proceeding against Indemnitee based solely on the negligent or wrongful conduct of Indemnitor (each, a Claim). This indemnification is effective only if: (i) Indemnitee promptly notifies Indemnitor in writing of any known Claim, whether threatened or actual (or Indemnitor is not materially prejudiced by failure to receive prompt written notice of such Claim); (ii) Indemnitee fully cooperates with Indemnitor (at Indemnitors expense) in the defense of any such Claim; (iii) Indemnitor controls the defense against any such Claim, unless the interests of the parties materially differ or Indemnitors counsel is not reasonably acceptable to Indemnitee; and (iv) Indemnitees damages, liabilities, costs, and expenses are not paid by insurance or otherwise covered by a third party. This provision shall survive the termination of this Agreement.
9. Administration of the Agreement.
(a) Relationship of the parties. The parties to this Agreement are independent contractors serving in a professional capacity. Nothing contained in this Agreement shall be interpreted as authorizing either party to control the means, manner and method by which the other party exercises professional judgment, skill and practice. In the performance of C4Us work and the duties and obligations placed upon C4U under this Agreement, it is mutually understood and agreed that C4U and its agents and employees are at all times acting and performing as independent contractors and have no employment or agency relationship with Practice.
(b) Professional and Regulatory Standards. Practice and Representatives of Practice, C4U and its agents and employees, shall operate at all times in compliance with all federal, state, and local laws, rules and regulations.
10. Confidential Information.
(a) Confidential Information means the terms and conditions of this Agreement (including, but not limited to, the financial terms herein), the C4U Platform, and any information disclosed by a party (the Disclosing Party) to the other party (the Receiving Party) and marked as confidential or proprietary. No information of the Disclosing Party will be considered Confidential Information to the extent that an exception is provided for it in Section 10(c) herein.
(b) Use and Disclosure of Confidential Information. The Receiving Party acknowledges that it will have access to the Disclosing Partys Confidential Information. The Receiving Party agrees that it will not: (i) use any such Confidential Information in any way, for its own account or the account of any Third Party, except for the exercise of its rights and performance of its obligations under this Agreement; or (ii) disclose any such Confidential Information to any Third Party, other than furnishing such Confidential Information to its employees who are required to have access to the Confidential Information in connection with the exercise of its rights and performance of its obligations under this Agreement. The Receiving Party agrees that it will not allow any unauthorized Person access to the Disclosing Partys Confidential Information, and that the Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential
Information. In the event that the Receiving Party is required by applicable law to make any disclosure of any of the Disclosing Partys Confidential Information, by subpoena, judicial or administrative order, or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection. In addition, neither party will disclose the terms of this Agreement to any Third Party without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to its (a) attorneys for all purposes and (b) accountants, advisors, investors, acquirers and/or potential investors or acquirers and their advisors (collectively, Investment Representatives) of such party, which Investment Representatives have a need-to-know solely for the purpose of evaluating, negotiating or documenting a contemplated investment or acquisition; provided, however, that each such Investment Representative is bound by a written agreement (or in the case of attorneys or other professional advisors, formal ethical duties) requiring such Investment Representative to treat, hold and maintain the terms of this Agreement as Confidential Information in accordance with the terms and conditions of this Section 10.
(c) Exceptions. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to 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 this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party. Each party has the right to refuse to accept any trade secret, Confidential Information or similar proprietary information prior to full disclosure.
11. Patient Access to C4U Platform. Practice hereby acknowledges and agrees that:
(a) each Authorized Patient shall have the appropriately authorized access to the C4U Platform and his/her Health Data;
(b) Practice shall have no right or authority to control, terminate, or otherwise influence C4Us contractual relationship with any Authorized Patient; and
(c) the termination of this Agreement by either party shall have no effect on C4Us contractual relationship with any Authorized Patient.
12. Ownership of Health Data.
(a) Authorized Patient Health Data. The parties agree that Practice and each Authorized Patient shall be co-owners of the Authorized Patients Health Data as it relates to C4Us Platform.
(b) Patient Health Data. For Patients who do not register with C4U as an Authorized Patient at any time during the term of this Agreement, the parties agree that Practice shall retain ownership of the Health Data created for such Patients on the C4U Platform.
(c) Copy to Practice. Upon termination of this Agreement by either party for any reason, Practice may request a comma-separated values (CSV) file with the Health Data. Such request must be made in writing and delivered to C4U at the address listed in Section 16(f) of this Agreement within thirty (30) days from the date this Agreement is terminated. C4U will deliver this file free of charge within the 30 day period. Except as otherwise provided in the Terms and Conditions, upon the expiration of this thirty (30) day notice period, C4U shall delete and forever destroy all Health Data created pursuant to this Agreement.
13. HIPAA Business Associate . C4U agrees to comply with the terms and conditions of the Business Associate Agreement incorporated herein and attached hereto as Exhibit A.
14. Warranty and Disclaimer.
(a) C4U warrants that the C4U Platform will be created using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel. C4U does not warrant or guaranty the C4U Platform will be error free, or that any access to the C4U Platform will always be uninterrupted. Practices sole and exclusive remedy for breach by C4U of the foregoing warranty will be for: (i) C4U to re-create the nonconforming whole or part of the C4U Platform; and (ii) if within fourteen (14) business days of receiving notice from Practice, C4U fails to provide a specific conforming C4U Platform, C4U will provide to Practice a proportional refund of the fees paid by Practice for the nonconforming portion of the C4U Platform.
(b) DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 14, C4U: (A) MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR WARRANTIES ALLEGED TO ARISE AS A RESULT OF CUSTOM AND USAGE; AND (B) NEITHER ASSUMES NOR ACCEPTS ANY LIABILITY TO PRACTICE WITH RESPECT TO WHETHER THE C4U PLATFORM MEETS PRACTICES BUSINESS NEEDS.
15. Limitation of Liability.
(a) Limited Liability. Even if advised of the possibility of loss, liability, damage or expense, C4U is not liable for any indirect damages, including any lost profits, data, business, goodwill, anticipated savings, opportunity or use or other incidental or consequential damages, which Practice or any Third Party may suffer as a result of or in connection with the furnishing of the C4U Platform, including without limitation the use or inability to use the C4U Platform.
(b) Exclusion from Liability. C4U will not be liable for any damages, expenses or loss due to impairments to the C4U Platform caused by acts of Representatives of Practice, Practices subcontractors or suppliers, or Authorized Patients.
(c) Exclusion from Liability Transaction Loss. Even if C4U is advised of the possibility of loss, liability, damage or expense, C4U will not be liable for any damages, expenses or loss due to: (a) misuse of any data or the C4U Platform by Practice; (b) any error or omission in data results or information provided by the C4U Platform and not caused by C4U; (c) any inability to use the C4U Platform;
(d) any error or omission in data provided to C4U; and/or (e) any failure, delay, corruption, error, inaccuracy, discrepancy, incompletion or omission in or made through the C4U Platform and not caused by C4U.
(d) Liability Not to Exceed Amounts Paid. Notwithstanding anything to the contrary, or any failure of essential purpose of any limited remedy or invalidity of this Section 15, C4Us aggregate liability, if any, to Practice or to any Third Party for claimed loss or damage arising under this Agreement during any specific period will not exceed the total amount actually paid by Practice to C4U since the Effective Date pursuant to this Agreement only.
(e) Reasonableness. Practice hereby expressly acknowledges and agrees that in view of the amount of the fees paid or to be paid hereunder, the limitations of liability in this Section 15 and the indemnities given in Section 8 above are in all respects fair and reasonable and reflect a duly considered allocation of risk between the Parties.
16. General Provisions.
(a) Governmental Agency Access. Until the expiration of four (4) years after the furnishing of the C4U Platform under this Agreement, upon written request by the Secretary of the United States Department of Health and Human Services, the United States Comptroller General, or any of their duly authorized representatives, each party will make available the contracts, books, documents, and records necessary to verify the nature and extent of the costs of providing those services. If either party carries out any of the duties of this Agreement through a subcontract with a value of Ten Thousand Dollars ($10,000.00) or more over a twelve-month (12-month) period with a related individual or organization, such contracting party agrees to include in any such subcontract a clause permitting access by the Secretary, the Comptroller General, and their representatives to the related subcontractors books and records. This Section 16(a) is included pursuant to and is governed by the requirements of 42 USC 1395x(v)(1)(I) and the regulations 42 CFR 420.300-420.304. No attorney-client, accountant-client or other legal privilege will be deemed to have been waived by virtue of this Agreement. In the event of a request for access, each party agrees to notify the other party immediately, to inform the other party as to what response will be made to the request, and to provide the other party access to such books and records. Notwithstanding any provision in this Agreement to the contrary, both parties shall comply with lawful requests for access to records by federal, state or local government agencies, unless otherwise ordered by a court or administrative agency of competent jurisdiction.
(b) Severability. Each and every provision, section, subsection, paragraph, and clause herein shall be separable from each and every other part hereof so that the invalidity of any part hereof shall not affect the validity of the remainder.
(c) No Waiver. No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting with regard to any breach of any provision of this Agreement shall be construed to be a waiver of such breach. Every right and remedy of each of the parties shall be cumulative and either party, in its sole discretion, may exercise any and all rights or remedies stated in this Agreement or otherwise available at law or in equity.
(d) Judicial Interpretation. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same, it being agreed that the agents of both parties have participated in the preparation hereof.
(e) Variations of Pronouns. All pronouns and all variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons or entity may require.
(f) Attorneys Fees and Costs. In any disputes arising out of, or in connection with, this Agreement, the each party will be responsible for their own attorney and court costs.
(g) Assignments. The rights and obligations provided under this Agreement are assignable by C4U without the prior written consent of the non-assigning party.
(h) Governing Law; Venue; Jurisdiction. This Agreement shall be governed by and controlled by the laws of the State of Florida. The parties agree that exclusive venue shall be in the courts of Manatee County, Florida for all disputes arising out of this Agreement. The parties each hereby consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
(i) Amendments. Amendments may be made to this Agreement only upon the mutual consent and approval in writing by both parties.
(j) Entire Agreement. This Agreement, together with any schedules, exhibits, appendices, and other attachments hereto, all of which are hereby incorporated by reference and made a part of this Agreement, constitutes the entire agreement between the parties, and supersedes all proposals, oral and written, and all other communications between the parties in relation to the subject matter of this Agreement. The parties hereto agree that no warranties, inducements or representations exist except as stated herein.
(k) Counterparts. This Agreement may be executed in any number of counterparts, including facsimile or an e-mail of a PDF file containing a copy of the signature of the person executing this document, each of which shall be an original, but all of which together shall constitute one in the same instrument.
(l) Headings. Headings contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
(m) Third-Party Beneficiary. This Agreement is solely for the benefit of the parties and their respective successors and permitted assigns, and no other person has any right, benefit, priority or interest under or because of the existence of this Agreement.
(n) Successors and Assigns. All provisions of this Agreement are binding upon, inure to the benefit of and are enforceable by or against the parties and their respective heirs, executors, administrators or other legal representatives and permitted successors and assigns.
(o) No Joint Venture or Partnership. The parties agree that nothing contained herein is to be construed as making the parties joint venturers or partners.
(p) Authority. Each party represents that the party has the requisite authority to execute this Agreement.
(q) Recitals. The recitals to this Agreement are true and correct in every regard and are hereby incorporated herein by this reference.