This End User License Agreement, together with its Exhibits, (collectively the "Agreement", "EULA", or “EUL Agreement”) is entered into between Epharmix, Inc. d/b/a CareSignal (“CareSignal” or “Site” or “Company”) and every user of the CareSignal website (https://caresignal.health/). By accessing or using any part of our Platform or Site located at https://caresignal.health/, you consent to the Agreement.
WHEREAS, Licensee desires the right to use certain software-as-a-service developed by CareSignal (“Site(s)” or “CareSignal SaaS”), and;
WHEREAS, CareSignal is willing to grant to Licensee a renewable, nonexclusive and nontransferable license to Licensee to use such software in exchange for the license fee.
NOW THEREFORE, in consideration of the premises and the following mutual covenants and agreements, CareSignal and Licensee agree:
- License: Subject to the terms and conditions of this Agreement, CareSignal hereby grants to Licensee a nonexclusive right and license to utilize the CareSignal SaaS. Licensee shall not use or permit the use of the CareSignal SaaS for any other purpose.
(a) License Fee. Upon execution of this Agreement and delivery of the CareSignal SaaS access code and login, Licensee shall pay to CareSignal a fee. The fee will be determined by CareSignal. “Access code” may be a user name, email address, or other means of user identification.
(b) Taxes. Licensee shall, in addition to other amounts payable under this Agreement, pay all local, state, and federal taxes (but excluding taxes imposed on CareSignal's income) levied or imposed by reason of the transactions contemplated in this Agreement. Licensee shall promptly pay to CareSignal an amount equal to any such taxes actually paid or required to be collected or paid by CareSignal.
(c) Failure to pay any fee described in this section 3 constitutes breach of this agreement and shall be the basis for the immediate termination of all licenses granted under this agreement.
- Modifications; Updates. CareSignal reserves the right, but is not obligated, to modify or update the CareSignal SaaS. In the event of such a modification or update, CareSignal shall from time to time during the term of this Agreement provide Licensee with updated versions of the CareSignal SaaS. Upon delivery, such modifications and updates shall be deemed to be CareSignal SaaS and Licensee shall have no rights therein except those granted by this Agreement.
- Title in CareSignal SaaS:
(a) Proprietary Rights. All applicable common law and statutory rights and title in and to the CareSignal SaaS and modifications or updates of the CareSignal SaaS, including, but not limited to, rights in confidential and trade secret material, source code, object code, trademarks, service marks, patents, and copyrights, are and will remain the property of CareSignal. Licensee shall have no right, title, or interest in such proprietary rights.
(b) Restrictions. Licensee is prohibited (i) from distributing, transferring possession of, or otherwise making available copies of the CareSignal SaaS to any person, other than Authorized Users pursuant to the terms of this Agreement, and (ii) from reproducing and installing the CareSignal SaaS for use on any computer, network or workstation not at an Authorized Sites. Licensee shall advise all Authorized Users that they are prohibited from reproducing, distributing, transferring possession of, or otherwise making available copies of the CareSignal SaaS to any person other than an Authorized User. Licensee and Authorized Users are prohibited from making any modifications, adaptations, enhancements, changes or derivative works of the CareSignal SaaS without the prior written consent of CareSignal, and Licensee shall advise all Authorized Users that they are prohibited from making any modifications, adaptations, enhancements, changes, or derivative works of the CareSignal SaaS.
(c) Further Documentation. To protect the CareSignal’s rights in the CareSignal SaaS, Licensee shall, at the reasonable request of CareSignal, promptly execute and assign any and all applications, including, but not limited to, copyright applications, any and all assignments, and any other instruments which CareSignal deems necessary to protect or maintain CareSignal’s rights in the CareSignal SaaS. Licensee hereby irrevocably appoints CareSignal as attorney-in-fact for Licensee with full power and authority to execute and deliver in the name of Licensee any such instrument or instruments.
(a) No Decompilation or Disassembly. CareSignal represents and Licensee hereby acknowledges and agrees that the code(s) constituting the CareSignal SaaS and updates of the CareSignal SaaS contains confidential and trade secret material which is not readily susceptible to reverse compilation or reverse assembly. Licensee and Authorized Users shall not attempt to decompile or disassemble the code(s) of the CareSignal SaaS or updates/modifications. Licensee further agrees that it will advise Authorized Users of the provisions of this subsection and immediately report to CareSignal and halt any reverse compilation or reverse assembly of the CareSignal SaaS or updates by any Authorized User of which Licensee has knowledge.
(b) Other Restrictions. Licensee agrees to maintain in strict confidence the CareSignal SaaS, to protect as a trade secret any portion of the CareSignal SaaS which has not been publicly disclosed and to prevent any unauthorized copying, use, distribution, installation, or transfer of possession of the CareSignal SaaS by itself or Authorized Users.
- Maintenance and Support: CareSignal, subject to the payment by Licensee of the fees set forth above, shall provide Licensee with the maintenance and support described herein and all updates/modifications to the CareSignal SaaS, which CareSignal makes available generally to all of its customers, but exclusive of customer updates for specific users. Unless otherwise mutually agreed by the parties, all such maintenance and support shall be provided remotely to Licensee. All requests for maintenance and support must be made in writing via the Site.
- Branding: Licensee acknowledges that CareSignal SaaS may bear various proprietary markings of CareSignal. Licensee shall not alter or remove any trade name, trademark, legend, "flash screen" or other identification marks, symbols or labels of CareSignal from CareSignal SaaS without the express written consent of CareSignal. Licensee agrees to include or have included CareSignal’s logo, trademark or copyright notices or other branding in any CareSignal SaaS "flash screens," product information and collateral marketing material, which branding shall be of substantially the same size and prominence as the branding of Licensee or other providers of products embedded or "bundled" in such software of products.
- Term and Termination:
(a) Term. This Agreement shall begin as of the date of this Agreement and shall continue for a period of two (2) years unless terminated earlier by either party because of the default of the other party in any obligation under this Agreement. The Licensee may stop using CareSignal or CareSignal SaaS at any time. Thereafter, provided Licensee is not in default of any provision of this Agreement at such time, this Agreement shall be automatically renewed for three (3) consecutive one (1) year terms upon the continued payment of the license fees by Licensee unless either party notifies the other in writing of its intent to terminate at least sixty (60) days prior to the expiration of the then current term. The license fees will be determined by CareSignal.
(b) Termination. If either party is in default of any of its obligations under this Agreement, the other party may give written notice of such default, and if the defaulting party has not cured the default within thirty (30) days of such notice, the other party shall have the right to terminate this Agreement; a default by Licensee under Sections 3(b), 3(d), 5(b), or 6 of this Agreement shall give rise to CareSignal's right to immediately terminate this Agreement without demand, notice or a cure period.
(c) Effect of Termination. Upon termination of this Agreement for whatever reason, the license granted under this Agreement to use the CareSignal SaaS is immediately revoked. TERMINATION SHALL NOT RELIEVE THE LICENSEE AND AUTHORIZED USERS OF THEIR OBLIGATIONS REGARDING THE CONFIDENTIALITY OF THE LICENSED SOFTWARE AND UPDATES.
(d) Payments Not Excused. Notwithstanding any of the foregoing, in the event of termination as a result of the Licensee's failure to comply with any of its obligations under this Agreement, Licensee shall continue to be obligated for any payments due as of the date of termination. If the termination is the result of a breach or default by CareSignal, CareSignal shall refund a pro rata portion of any prepaid fees for periods after the date of termination. Termination of the license shall be in addition to and not in lieu of any equitable and/or legal remedies available to CareSignal.
(e) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
- Business Associate Agreement:This agreement shall include the Business Associate Agreement, as follows.
This Business Associate Agreement ("Agreement") is effective upon agreeing to the End User License Agreement and is entered into by and between you, the user of the Site (“Covered Entity” or “User”) and Epharmix, Inc. d/b/a CareSignal (the “Business Associate”).
10.1. Term. This Agreement shall remain in effect for the duration of the Task Order the Business Associate has with the Covered Entity, and shall apply to all of the Services and/or Supplies delivered by the Business Associate pursuant to this Agreement.
10.2. HIPAA Assurances. In the event Business Associate creates, receives, maintains, or otherwise is exposed to personally identifiable or aggregate patient or other medical information defined as Protected Health Information ("PHI") in the Health Insurance Portability and Accountability Act of 1996 or its relevant regulations ("HIPAA") and otherwise meets the definition of Business Associate as defined in the HIPAA Privacy Standards (45 CFR Parts 160 and 164), Business Associate shall:
- Recognize that HITECH (the Health Information Technology for Economic and Clinical Health Act of 2009) and the regulations thereunder (including 45 C.F.R. Sections 164.308, 164.310, 164.312, and 164.316), apply to a business associate of a covered entity in the same manner that such sections apply to the covered entity;
- Not use or further disclose the PHI, except as permitted by law;
- Not use or further disclose the PHI in a manner that had Business Associate done so, would violate the requirements of HIPAA;
- Use appropriate safeguards (including implementing administrative, physical, and technical safeguards for electronic PHI) to protect the confidentiality, integrity, and availability of and to prevent the use or disclosure of the PHI other than as provided for by this Agreement;
- Comply with all applicable requirements of 45 C.F.R. Part 162 if the Business Associate conducts Standard Transactions for or on behalf of the Covered Entity;
- Report promptly to you, the user, any security incident or other use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware;
- Ensure that any subcontractors or agents who receive or are exposed to PHI (whether in electronic or other format) are explained the Business Associate obligations under this paragraph and agree to the same restrictions and conditions;
- Make available PHI in accordance with the individual’s rights as required under the HIPAA regulations;
- Account for PHI disclosures for up to the past six (6) years as requested by Covered Entity, which shall include:
- (1) Dates of disclosure, (2) names of the entities or persons who received the PHI, (3) a brief description of the PHI disclosed, and (4) a brief statement of the purpose and basis of such disclosure;
- Make its internal practices, books, and records that relate to the use and disclosure of PHI available to the U.S. Secretary of Health and Human Services for purposes of determining Customer’s compliance with HIPAA; and
- Incorporate any amendments or corrections to PHI when notified by Customer or enter into a Business Associate Agreement or other necessary Agreements to comply with HIPAA.
10.3. Termination upon Breach of Provisions. Notwithstanding any other provision of this Agreement, Covered Entity may immediately terminate this Agreement if it determines that Business Associate breaches any term in this Agreement. Alternatively, Covered Entity may give written notice to Business Associate in the event of a breach and give Business Associate five (5) business days to cure such breach. Covered Entity shall also have the option to immediately stop all further disclosures of PHI to Business Associate if Covered Entity reasonably determines that Business Associate has breached its obligations under this Agreement. In the event that termination of this Agreement and the Agreement is not feasible, Business Associate hereby acknowledges that the Covered Entity shall be required to report the breach to the Secretary of the U.S. Department of Health and Human Services, notwithstanding any other provision of this Agreement or Agreement to the contrary.
10.4. Return or Destruction of Protected Health Information upon Termination. Upon the termination of this Agreement, unless otherwise directed by Covered Entity, Business Associate shall either return or destroy all PHI received from the Covered Entity or created or received by Business Associate on behalf of the Covered Entity in which Business Associate maintains in any form. Business Associate shall not retain any copies of such PHI. Notwithstanding the foregoing, in the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible upon termination of this Agreement, Business Associate shall provide to Covered Entity notification of the condition that makes return or destruction infeasible. To the extent that it is not feasible for Business Associate to return or destroy such PHI, the terms and provisions of this Agreement shall survive such termination or expiration and such PHI shall be used or disclosed solely as permitted by law for so long as Business Associate maintains such Protected Health Information.
10.5. No Third Party Beneficiaries. The parties agree that the terms of this Agreement shall apply only to themselves and are not for the benefit of any third party beneficiaries.
10.6. De-Identified Data. Notwithstanding the provisions of this Agreement, Business Associate and its subcontractors may disclose non-personally identifiable information provided that the disclosed information does not include a key or other mechanism that would enable the information to be identified.
10.7. Amendment. Business Associate and Covered Entity agree to amend this Agreement to the extent necessary to allow either party to comply with the Privacy Standards, the Standards for Electronic Transactions, the Security Standards, or other relevant state or federal laws or regulations created or amended to protect the privacy of patient information. All such amendments shall be made in a writing signed by both parties.
10.8. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the then most current version of HIPAA and the HIPAA privacy regulations.
10.9. Definitions. Capitalized terms used in this Agreement shall have the meanings assigned to them as outlined in HIPAA and its related regulations.
10.10. Survival. The obligations imposed by this Agreement shall survive any expiration or termination of this Agreement.