IMPACT APPLICATIONS, INC.™ SERVICES AGREEMENT Academic Institution/School
Important - Read Carefully. Notice to User:
This License Agreement ("Agreement") is a legal document between you and ImPACT Applications, Inc. ("ImPACT"). It is important that you read this document before using the ImPACT software and updates and upgrades thereto and any accompanying documentation, including, without limitation printed materials, 'online' files, or electronic documentation. The terms and conditions of this Agreement shall govern and control your use of any and all of the ImPACT software.
By clicking the "I accept" and "Next" buttons below, or by installing, or otherwise using the software, you agree to be bound by the terms of this Agreement including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below, whether or not you decide to purchase the software. You agree that this Agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you must click the "Decline" button below and you shall have no right to install, use or otherwise benefit from the software. By entering into this Agreement you hereby represent and warrant to ImPACT and its affiliates that you are a duly authorized representative of your organization and that by clicking "I accept" and "Next" you are acting within your authority and creating a legally binding agreement between your organization and ImPACT.
By clicking the "I accept" and "Next" buttons below you certify that either your organization is a hospital, sports medicine clinic, institution of secondary or post-secondary education, professional sports team or similar organization receiving post injury services from a licensed Medical Doctor, Doctor of Osteopathic Medicine, Neuropsychologist, Psychologist, Nurse Practitioner or Physician's Assistant in good standing. You acknowledge and agree only those organizations and individuals listed above are permitted to license and use the ImPACT post injury testing products and that any license to the ImPACT testing products is expressly conditioned upon my organization maintaining such status throughout the term of the license as further described below.
As used in this Agreement, the following terms shall have the respective meanings assigned to them below:
"Customer Materials" means all materials and content, such as logos and Customer's standard operating procedures, if any, provided to ImPACT by Customer for incorporation into the Product.
"Customer Site" means a web site owned or controlled by Customer through which Customer and End Users access the Product.
"Configurations" means standard set-up and activation services for the Product.
"Documentation" means user documentation for the Product available at ImPACT's web site or sent to the Customer in print, as such documentation may be amended by ImPACT from time to time.
"End User" means people other than Customer who are allowed by Customer to access the Product via the ImPACT Site or a Customer Site.
"ImPACT Site" means one or more web sites owned or controlled by ImPACT or an affiliate of ImPACT through which Customer or End Users may obtain access to the Product.
"Normal Business Hours" means 7:00 a.m. CST to 7:00 p.m., CST, Monday through Friday, but excluding all holidays observed by ImPACT.
"Person" or "person" means any corporation, partnership, limited liability company, joint venture, other entity or natural person.
"Product" means the ImPACT products and services available from time-to-time on or through the ImPACT Site, as such Products are described in greater detail in the Documentation, together with any Updates thereto.
"Product Infrastructure" means the hardware, software and other equipment that ImPACT uses in connection with its hosting of the Product for Customer hereunder.
"Territory" means the United States.
"Update" means any update, upgrade or new release for the Product that ImPACT may make available to Customer from time to time hereunder.
2.PRODUCT ACCESS; RESTRICTIONS; RESALE PROVISIONS; EXTENSION OF AGREEMENT TO SUBSEQUENT PRODUCTS
2.1Limited License. Subject to Customer's compliance with the terms and conditions of this Agreement, ImPACT hereby grants to Customer, during the Term, a non-exclusive, non-transferable (except as expressly permitted hereunder), license: to access the Product, to use the Product in the Territory, and to authorize End Users to access and use the Product, via the ImPACT Site or a Customer Site.
2.3Configurations. ImPACT shall prepare and incorporate Configurations in order to enable access to the Product. ImPACT and its licensors own and shall continue to own all right, title and interest in and to the Product and such Configurations after any Configurations are incorporated therein; provided however that Customer or its licensors shall own and continue to own all right, title and interest in and to the Customer Materials. Customer hereby grants to ImPACT a royalty-free license to prepare the Configurations and to incorporate said Configurations into the Product as permitted hereunder.
2.4Proprietary Notices. Customer shall not remove any trademark, copyright or patent notices, any proprietary or restricted rights notices, or any other proprietary notices or disclaimers that appear in the Product, any of the Documentation..
2.5 Other License Restrictions. Customer shall not make any representations, warranties, conditions or guarantees with regard to the Product that are inconsistent with or in addition to those made by ImPACT to Customer hereunder. In addition, except as expressly authorized herein, Customer shall not authorize End User to: (i) copy or modify the Product for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Product; or (iii) distribute, disclose, market, rent, lease or otherwise transfer the Product or Documentation to any other person, except as set forth in Section 2.1 hereto.
2.6Reservation of Rights. Except for the licenses and rights expressly granted under this Agreement, no licenses or rights are granted by either party to the other party hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto ImPACT or Customer, as applicable.
2.7Product Representations. Customer shall make no, and shall indemnify ImPACT for and against any and all claims arising out of, representations or warranties concerning quality, performance or other characteristics of the Products other than those which are consistent in all respects with, and do not expand the scope of, the representations and warranties made by ImPACT for such Products. Customer may not write or otherwise create any additional Product Documentation or authorize the creation thereof without ImPACT's express prior written consent. The only Product Documentation that Customer is authorized to sell or distribute is official ImPACT Product Documentation that shall have been produced by ImPACT. Customer agrees that its obligation to indemnify ImPACT for and against any and all claims arising out of any warranty that is inconsistent with or additional to the warranties contained in this Agreement shall not be affected, reduced or impaired by the fact that Customer is required by local mandatory law to provide such inconsistent or additional warranty.
2.8Ownership of Customer Data. The ImPACT system will aggregate and generate data relating to End Users that will relate to medical information such as age, height, weight, prior injuries and test results from using the Product and such other information as ImPACT may determine from time-to-time would be useful in improving the performance of the Product (the "Customer Data"). Customer is the sole exclusive owner of the Customer Data. ImPACT shall be permitted to use aggregated, de-identified Customer Data, for internal and external evaluation purposes provided that such information does not identify an individual and there is no reasonable basis to believe that the information can be used to identify an individual. Any use of Customer Data by ImPACT shall comply with all applicable U.S. rules, laws and regulations regarding data protection and privacy.
2.9Government Approvals. Customer shall, at its expense, obtain all registrations, licenses and permits required to perform its obligations, pay all taxes and fees due in connection therewith, and provide ImPACT with such documentation as ImPACT may request to confirm Customer's compliance with this Section 2.13 and agrees that it shall not engage in any course of conduct that, in ImPACT's reasonable belief, would cause ImPACT to be in violation of the laws of any jurisdiction.
2.10Material Breach. Any breach of any of the provisions of this Section 2 by Customer shall be deemed a material breach of this Agreement.
2.11Applicability of Agreement to All ImPACT Products and Pricing Changes. Customer acknowledges ImPACT may offer additional Products during the term of this Agreement (each a "Subsequent Product" and collectively, the "Subsequent Products"). Customer and ImPACT acknowledge and agree Subsequent Products may be licensed by Customer, subject to all terms and conditions of this Agreement, without a formal written modification of this Agreement or the execution of a separate contract on the condition that Subsequent Products and pricing terms are described in a writing by ImPACT and acknowledged by Customer. Such a writing and acknowledgement may include email exchanges, an online ordering system or portal, or any other means that is mutually acceptable by the parties without any need to reference this Agreement or any amendment thereto. Performance subsequent to any acknowledgement or writing as stated herein shall constitute acceptance. ImPACT may also amend Schedule A consistent with the terms of this Agreement without a written modification of this Agreement, provided that any modifications to Exhibit A are provided to Customer in a manner consistent with this section. Upon communication to customer of revisions to Exhibit A, said revisions shall merge into and fully become part of this Agreement without need for a separate acceptance or novation.
3.1Obligations of ImPACT. Subject to Customer's compliance with the terms and conditions of this Agreement, ImPACT shall be responsible for providing and maintaining the Product Infrastructure. The Product Infrastructure is subject to modification by ImPACT from time to time for purposes such as adding new functionality, maximizing operating efficiency and upgrading hardware and software. Customer understands and acknowledges such modifications may require changes to Customer's Internet access and telecommunications infrastructure to maintain Customer's desired level of performance. Impact will provide industry standard web hosting and connectivity and use reasonable efforts to provide Customer 99.99% up time operation; provided, however, Customer acknowledges and agrees that downtime may occur for systems maintenance, including without limitation diagnostics, upgrades, and operations reconfiguration and that unscheduled downtime may occur as a result of forces beyond the immediate control of ImPACT including, but not limited to, hardware failures, electrical outages or failures or outages caused by Customer's network or internet service provider.
3.2Obligations of Customer; Internet Access and Telecommunications Services. Except for the Product Infrastructure, which will be provided by ImPACT, Customer shall be responsible for obtaining and maintaining all hardware, software, equipment and other items required in connection with Customer's access to and use of the Product as contemplated hereunder, including, without limitation, all hardware, software, equipment and other items required to develop and maintain the Customer Site functionality necessary to facilitate access to the Product. Customer at its expense shall be responsible for obtaining Internet access and/or telecommunications services, or upgrading Customer's existing Internet access or telecommunications services, to allow access to the Product by Customer and End Users. ImPACT shall not be responsible for interruptions in Customer's use of the Product caused by such providers or interruptions in the service provided by such providers.
4.TEST ACCESSIBILITY; SERVICE; REPORTS; USER'S GUIDE; UPDATES
4.1Test Accessibility; Service. A description of how to access the Products, ImPACT technical support and report generation is set forth on Schedule A.
4.2Updates. ImPACT shall provide all Updates to Customer as they are released generally by ImPACT to all of its customers. Any and all Updates offered by ImPACT to its customers during the term shall be provided to Customer free of charge.
5.FEES AND PAYMENTS; TAXES; LATE PAYMENTS
5.1Product Fees - License. In consideration of the license rights provided by ImPACT hereunder, Customer shall pay to ImPACT, within thirty (30) calendar days of the Effective Date or the first day of any Renewal Term, the amounts set forth on the Order Form. Customer shall be responsible for collecting Product Fees from its sublicensees and shall remit the same to ImPACT according to the terms set forth in this Section 5. ImPACT shall electronically invoice Customer for all Product Fees due hereunder and it is Customer's sole responsibility to update ImPACT regarding any changes in Customer's electronic contact information. All Product Fees due to ImPACT shall be paid by Customer in full without right of set-off or deduction. In the event all amounts due to ImPACT are not paid when due, ImPACT shall have the right, in its sole and absolute discretion, to suspend Customer's access to the Product until payment is remitted, subject to ImPACT's compliance with all applicable U.S. federal, state and local rules, laws and regulations regarding data protection, data retention and data privacy, of Customer Data, including but not limited to HIPAA. Failure to pay Product Fees as set forth above shall constitute a material breach of this Agreement and shall subject Customer to termination of this Agreement in accordance with Section 8 herein.
5.2Product Fees. The Product Fees shall apply only to Products and not to any other goods or services ImPACT may offer, including without limitation separate modules, professional services or third party products offered by ImPACT from time to time, all of which ImPACT may, in its sole discretion, separately offer and price. ImPACT may offer special promotions or discounts on Products from time to time and as a result, may amend pricing of the Products upon thirty (30) days prior written notice to Customer.
5.3Fee Increases. Following the Initial Term, ImPACT may, upon sixty (60) days prior written notice to Customer, increase the Product Fees charged to Customer hereunder to account for increases in the fees and other amounts charged by third parties to ImPACT in respect of the Product or any services provided to Customer hereunder.
5.4Taxes. To the extent applicable, Customer shall be responsible for paying all sales, use, value-added and other similar taxes in connection with the Product and services provided hereunder, except for taxes assessed, levied or imposed based upon ImPACT's property or income. ImPACT may elect to include said taxes, duties and charges as separately itemized charges in its invoices to Customer hereunder.
5.5Late Payments. In the event any amounts due to ImPACT hereunder are not paid when due, ImPACT shall have the right, in its sole and absolute discretion, to: (i) immediately terminate this Agreement by delivering written notice thereof to Customer; (ii) immediately suspend Customer's access to the Product; and (iii) charge Customer interest on such late payment, which shall accrue interest from the first day following the due date until paid in full at the lesser of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law.
6.WARRANTIES AND LIMITATIONS OF LIABILITY
6.1Warranty. ImPACT warrants that Product will operate in substantial conformance with the Documentation. Customer must notify ImPACT in writing, within ten (10) days following the date on which Customer is first given access to the Product, of any failure of Product to operate in substantial conformance with the Documentation. Customer must also notify ImPACT in writing, within ten (10) days following the date of performance of any services by ImPACT hereunder, of any failure by ImPACT to perform said services in a professional manner and in accordance with the terms and conditions of this Agreement. ImPACT's sole obligation and Customer's sole remedy with respect to any failure of the Product to substantially conform to the specifications therefor, or of any failure of ImPACT to perform services hereunder in a professional manner and in accordance with the terms and conditions of this Agreement, is for ImPACT to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for Customer to terminate this Agreement upon written notice to ImPACT. ImPACT represents and warrants that it is not a Sanctioned Person or Entity. For purposes of this Agreement, the term "Sanctioned Person or Entity" means a person or entity that has been excluded by the Office of the Inspector General of the Department of Health and Human Services from participation in Medicare, Medicaid or any state health care program (defined at 42 C.F.R. § 1001.2) pursuant to 42 C.F. R. Part 1001. ImPACT shall notify Customer within ten (10) days after it receives notice that it is a Sanctioned Person or Entity.
6.2Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, IMPACT DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE PRODUCT, THE PRODUCT INFRASTRUCTURE OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMPACT DOES NOT WARRANT THAT THE PRODUCT OR THE PRODUCT INFRASTRUCTURE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE PRODUCT TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. THE PRODUCT AND THE PRODUCT INFRASTRUCTURE ARE WARRANTED ONLY TO CUSTOMER, AND CUSTOMER SHALL NOT EXTEND ANY WARRANTIES OR MAKE ANY REPRESENTATIONS FOR OR ON BEHALF OF IMPACT OR IMPACT'S LICENSORS TO ANY OTHER PERSONS.
6.3Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, CLAIMS RELATED TO DIAGNOSTIC ACCURACY AND/OR MEDICAL MALPRACTICE), REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. EXCEPTING INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND THE SPECIFIC OBLIGATIONS OF IMPACT UNDER SECTION 6.1, THE AGGREGATE LIABILITY OF IMPACT FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER SHALL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY SUCH CLAIM FIRST ARISES.
6.4Consumer Protection Laws. THE PRODUCT IS A BUSINESS PRODUCT, THE APPLICATION OF WHICH IS COMMERCIAL, RATHER THAN CONSUMER-ORIENTED, IN NATURE, REGARDLESS OF THE NATURE OF ANY SUBLICENSES OR USE BY ANY PERSON OR ENTITY. IN EXECUTING THIS AGREEMENT, THE PARTIES RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THAT CONSUMER PROTECTION LAWS IN ANY APPLICABLE TERRITORY SHALL NOT APPLY.
7.1Indemnification by ImPACT. ImPACT hereby agrees to indemnify and hold harmless Customer from and against all damages, settlement amounts, costs and expenses (including reasonable attorney's fees) that Customer may be required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to claims that the Product infringes or misappropriates a U.S. patent, copyright, trademark, trade secret or other intellectual property rights of a third party, except such claims due to: (i) a breach by Customer of any provision of this Agreement; (ii) any Customer Materials; or (iii) use of the Product in combination with any software, hardware or other equipment not provided by ImPACT where the infringement or misappropriation would not have occurred but for such combination. Notwithstanding anything stated herein to the contrary, in no event shall ImPACT be required to indemnify Customer in an amount or amounts, in the aggregate, in excess of the fees and payments ImPACT has received hereunder.
7.2Additional Obligation of ImPACT. In the event Customer is enjoined or otherwise prohibited, or in ImPACT's opinion is reasonably likely to be enjoined or otherwise prohibited, from using the Product as a result of any claim for which ImPACT is required to indemnify Customer under Section 7.1 above, ImPACT, at its own expense and option, shall, in addition to fulfilling its obligations described in Section 7.1, promptly: (i) procure for Customer the right to continue using the Product; (ii) modify the Product so that it becomes non-infringing without materially altering its capacity or performance; (iii) replace the Product with a product that is reasonably equivalent in capacity and performance but is non-infringing; or, if none of the foregoing remedies is available to ImPACT on commercially reasonable terms; (iv) require Customer to cease using the Product and repay to Customer any prepaid fees and other amounts paid by Customer to ImPACT hereunder.
7.3Exclusive Remedy. Sections 7.1 and 7.2 state the entire obligation of ImPACT and the exclusive remedy of Customer with respect to any actual or threatened claim that the Product, or use thereof by Customer or any End User, infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property rights of any person.
8.TERM AND TERMINATION
8.1Term. The initial term of this Agreement (the "Initial Term") shall be one year from the Effective Date. This Agreement, and any amendments to Schedule A as set forth in Section 2.15, shall automatically renew for additional identical terms (each a "Renewal Term") under the then-current fee schedule for the Products and services, a copy of which will be provided to Customer upon request, unless Customer, at least thirty (30) business days prior to the end of the applicable term, provides ImPACT with notice that this Agreement will expire at the end of the applicable term. As of the Effective Date any and all prior agreements related to the licensing of the Products between Customer and ImPACT shall be terminated.
8.2Termination. Subject to Section 5 of this Agreement, either party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party if the other party fails to perform or comply with any material term or condition of this Agreement and does not cure such failure within thirty (30) days following its receipt of written notice thereof from the other party. Additionally, Customer may terminate this Agreement at any time with or without cause upon providing ImPACT at least ninety (90) days prior written notice pursuant to Section 9.9. If, as a result of a change in law or regulation or a judicial or administrative interpretation, the performance by either party hereto of any provision of this Agreement should jeopardize the licensure of Customer, its participation in Medicare, Medicaid, Blue Cross or other reimbursement or payment programs, its exemption from taxation under Internal Revenue Code Section 501(c)(3) or its full accreditation by the Joint Commission, or if it should constitute a violation of any statute, regulation or ordinance, Customer may request that this Agreement be renegotiated to eliminate the jeopardy and, if agreement is not then reached, terminate this Agreement.
8.3Effect of Termination. Upon the earlier of the expiration or termination of this Agreement, or due to Customer's insolvency or bankruptcy: (i) all license rights of Customer under this Agreement shall automatically and immediately cease; (ii) Customer shall immediately cease all uses of the Product; and (iii) Customer shall immediately delete all computer programs and files of ImPACT from its computer systems and return to ImPACT or destroy all Documentation, Training Materials and/or Promotional Materials in its possession or control and shall certify in writing within ten (10) days from the date of such termination or expiration that such deletions, returns, or destructions have taken place and shall certify same in writing. Customer shall no longer have any right or ability to market or license any of the Products, or to provide support related to the Products or offer training related to the Products. Customer agrees upon the effective date of such termination to pay all sums due to ImPACT, return all proprietary information to ImPACT, and provide ImPACT with all outstanding reports, including lists of prospects, copies and/or originals of sublicensee acknowledgments Agreements and details of any agreements or arrangements under which support has been subscribed for by licensees of Product for a period beyond the effective date of termination, and agrees to assign such agreements or arrangements to ImPACT or to a third party company designated by ImPACT. The following shall survive the expiration or sooner termination of this Agreement: the provisions of Sections 6, 7, 8 and 9; any payment obligations of the parties hereunder accruing prior to the date of such expiration or termination; and any other provisions herein expressly surviving such expiration or termination or necessary to interpret the respective rights and obligations of the parties hereunder.
9.1Independent Contractors. In making and performing this Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer, franchisee or partner of the other party for any purpose.
9.2Force Majeure. In the event either party is unable to perform its obligations under the terms of this Agreement (other than the obligation to pay amounts due and owing hereunder) because of acts of God, strikes, equipment or transmission failure or other causes reasonably beyond its control, such party shall not be liable to the other party for any damages resulting from such failure to perform or otherwise from such causes.
9.3Governing Law. This Agreement and its subject matter shall be governed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflict of laws principles contained therein. All controversies arising hereunder shall be brought in the state and federal courts located in Allegheny County, Pennsylvania. The parties hereby consent to the exclusive jurisdiction of the State and Federal Courts located in Allegheny County, Pennsylvania and hereby agree to waive any claim or defense of inconvenient forum or governmental immunity. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. In any suit or proceeding between the parties relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
9.4Public Statements. Either party may disclose the existence of this Agreement, but shall not represent to any third party any positions, statements, intentions, terms of this Agreement or other actions on behalf of the other. Neither party shall use the other party's name, trademarks or service marks or issue any press release or similar public statement without the other party's prior written consent which shall not be unreasonably withheld or delayed.
9.5Confidentiality. The parties (each, a "Recipient") agree to use all information concerning the other party (each, a "Discloser") and the Discloser's respective subsidiaries and affiliates furnished by or on behalf of the Discloser hereunder (collectively, the "Confidential Information") solely for the purpose of the transactions contemplated hereby. The Confidential Information will be kept confidential by the Recipient and its agents unless such Confidential Information: (i) is required to be disclosed by law; (ii) is disclosed pursuant to the Discloser's prior written consent; or (iii) otherwise becomes non-confidential as described below. Upon termination of this Agreement, the Recipient will return all Confidential Information as may be requested by the Discloser. The term "Confidential Information" shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available; (ii) is known by the Recipient at the time of receiving such information as evidenced by its records created prior to the date of this Agreement; (iii) is hereafter furnished to the Recipient by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the Recipient without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by the Discloser.
9.6Privacy Adherence. In addition to the requirements of Section 2.2, the parties are committed to complying with the Standards for Privacy of Individually Identifiable Health Information (the "Privacy Standard") promulgated in accordance with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). ImPACT understands that Customer is a "covered entity" as defined by HIPAA. In the course of carrying out its obligations in accordance with this Agreement ImPACT will have access to individually identifiable health information of Customer patients, thereby creating a Business Associate relationship between Customer and ImPACT. In compliance with HIPAA, Customer has requested ImPACT, and ImPACT has agreed, to abide by the terms and conditions of this Section 9.6 governing the use of Protected Health Information ("PHI"). Unless otherwise defined in the Section 9.6, capitalized terms shall have the meaning established by 45 CFR §§ 160.103 and 164.501. ImPACT may use or disclose PHI in accordance with this Section 9.6 provided such use or disclosure by Customer would not violate the Privacy Standard. ImPACT shall comply with the requirements of the Privacy Standard related to PHI. Specifically, ImPACT shall:
i. Not use or further disclose PHI other than as permitted or required by this Section 9.6 or as required by law (as such term is defined by the Privacy Standard);
ii. Use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Section 9.6;
iii. Report to Customer any use or disclosure of the PHI not provided for by this Section 9.6 of which ImPACT becomes aware;
iv. Mitigate, to the extent practicable, any harmful effect that is known to ImPACT of a use or disclosure of PHI not permitted by this Section 9.6;
v. Make PHI available in accordance with 45 CFR § 164.524;
vi. Make available for amendment and incorporate any amendments to PHI in accordance with 45 CFR § 164.526;
vii. Make available the information required to provide an accounting of disclosures in accordance with 45 CFR §164.528;
viii. Make ImPACT's internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received on behalf of, Customer available to the Secretary of the United States Health and Human Services for purposes of determining Customer's compliance with the Privacy Rule.
Upon expiration of this Agreement ImPACT shall either return to Customer (at Customer's sole expense) or destroy all PHI received from, or created or received on behalf of Customer (including all copies thereof) in ImPACT's possession or under ImPACT's control; or if return or destruction is not feasible, provide Customer with a written notice in which ImPACT describes why return or destruction is not feasible and expressly agrees in writing to extend protections of this Section 9.6 to the PHI and limit further uses and disclosures to those purposes that make return or destruction infeasible.
9.7Third Party Beneficiaries. End Users are not and will not be deemed to be third party beneficiaries of this Agreement, or to have any contractual relationship with ImPACT by reason of this Agreement. Customer hereby agrees to indemnify and hold harmless ImPACT from any and all damages, costs and expenses (including, without limitation, reasonable attorneys' fees) suffered or incurred by ImPACT or its affiliates in connection with any claims brought by End Users against ImPACT or its affiliates that arise from or in connection with the Product or any other matter covered by this Agreement.
9.8Insurance. ImPACT shall maintain for the term of this Agreement general liability insurance with a combined single limit of at least One Million Dollars (US$1,000,000.00) for any claim arising out of a single occurrence.
9.9Miscellaneous. Customer may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder, in whole or in part, by operational of law or otherwise, to any third party without the prior written consent of ImPACT. Customer's merger or consolidation with another entity or health care system shall not be considered an assignment requiring the prior written consent of ImPACT provided that the surviving entity assumes all of Customer's obligations hereunder without qualification or condition. This Agreement shall be freely assignable by ImPACT upon thirty (30) days prior written notice to Customer. Any attempted assignment or delegation of this Agreement or any duties or obligations hereunder in violation of the foregoing limitations shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. All notices required to be in writing shall be delivered by hand, sent by recognized overnight courier (such as Federal Express or UPS), electronic mail, or mailed by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties set forth above. This Agreement, including all schedules attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement. This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, shall bear the original or facsimile signature of each of the parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon, but all of which together shall constitute but one in the same instrument.
By clicking the "I accept" and "Next" buttons below, or by installing, or otherwise using the Product, you agree to be bound by the terms of this Agreement including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below, whether or not you decide to purchase the Product. You agree that this Agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you must click the "Decline" button below and you shall have no right to install, use or otherwise benefit from the Product. By entering into this Agreement you hereby represent and warrant to ImPACT and its affiliates that you are a duly authorized representative of your organization and that by clicking "I accept" and "Next" you are acting within your authority and creating a legally binding agreement between your organization and ImPACT.