Security of patient and provider information is of the utmost importance to us. To ensure the safety of stakeholder data, we've outlined security best practices for all users of the Valendo Health Inc. Application.
Additional terms & conditions to help guide a successful working relationship between Valendo Health Inc. and our customers
Our roadmap for enabling a seamless technical collaboration between Valendo Health Inc. and your care team
By working with Valendo Health Inc., you agree to the customer terms required by Valendo Health Inc.’s third party partners who help us provide the best possible customer and patient experience.
Overview
Valendo Health Inc. owns and operates the “Valendo Health Inc. Application.” This “Acceptable Use Policy” details the policies that “Authorized Users“ from a “Customer” of Valendo Health Inc. must follow while using the Valendo Health Inc. Application.
General Use Policies
i. The user interface, data model and schema, knowledge base and training materials of the Valendo Health Inc. Application (“Valendo Health Inc. Materials”) are confidential.
ii. Authorized Users shall be responsible for:
iii. Authorized Users shall not:
1. VALENDO HEALTH INC.’s OBLIGATIONS.
1.1 Valendo Health Inc. Services. Subject to the ultimate supervision of Customer’s physician(s), Valendo Health Inc. will provide the Services described in the Agreement. Valendo Health Inc. may subcontract certain Services to a third party. Valendo Health Inc. has the right and authority to hire, train, supervise and terminate its subcontractors.
1.2 Limitation on Marketing. Valendo Health Inc. shall not provide any marketing services for Customer, nor promote Customer’s practice, nor generate patients. Valendo Health Inc. shall not refer any patient to Customer for any medical services. Customer is under no obligation to write any prescription related to the Services.
2. CUSTOMER’S OBLIGATIONS.
2.1 Provision of Customer Personnel. Customer is responsible for all required personnel for the operation of the MID Location(s) other than those provided by Valendo Health Inc..
2.2 EHR Access and Security. Customer will cooperate and use good faith efforts to ensure Valendo Health Inc. can meet its obligations and perform the Services under this Agreement, including providing access to the Customer’s EHR and secure (including remote) network access to the local network via Valendo Health Inc. systems. Customer will abide by the cooperation, technology requirement and security terms posted at www.valendohealth.com/customer-terms.
2.3 COMPLIANCE WITH LAWS
2.3.1. Regulatory Compliance. Customer shall abide by and be solely responsible for its compliance with all applicable federal and state laws, rules, and regulations, including without limitation the Anti-Kickback Statute, the Stark Law, the False Claims Act, HIPAA, payor agreements and any obligations under this Agreement. Any guidance or recommendations provided by Valendo Health Inc. in connection with the Services are informational only and do not constitute legal, regulatory, or compliance advice. Customer is solely responsible for independently evaluating the permissibility of its own practices. Valendo Health Inc. shall have no liability arising from Customer's reliance on any such guidance. The Parties intend to comply with the Anti-Kickback Statute, and the Parties agree that the Program Fees do not reflect the volume or value of any referrals or other business generated between the Parties.
2.3.2. Practice of Medicine. Customer acknowledges and understands that Valendo Health Inc. is not authorized to practice medicine and the Services provided by Valendo Health Inc. do not contain or reflect any medical advice, judgment or opinion about the treatment or diagnosis of any patient or the choice of medications prescribed or recommended by Customer. Customer is solely responsible for (i) the treatment and diagnosis of Customer’s patients, and Customer shall prescribe all medications to its patients as determined in Customer’s professional judgment without any limitation by Valendo Health Inc. and (ii) its relationships with its physicians or other health care professionals. Customer retains ultimate authority, control and direction over all the health care professional services rendered by physicians and other health care professionals engaged by it. Valendo Health Inc. shall neither have nor exercise any control over the manner or methods by which Customer shall provide or supervise patient care services.
3. COMPENSATION. Customer shall pay Valendo Health Inc. the fees set forth in the Agreement (the “Program Fees”). As applicable, in the event the income generated by the Program is less than $1,000 per month, Valendo Health Inc. shall charge Customer a minimum of $1,000 per month (the “Minimum Fee”) per MID Location, which shall be due and payable in accordance with the terms of this Agreement. Valendo Health Inc. shall issue an invoice on a monthly basis. Program Fees shall be payable within 30 days of receipt. Any balance unpaid after 30 days shall accrue interest at the lesser of 2% per month, or the maximum legal rate, until paid in full. If Customer fails to pay any undisputed Program Fees by the applicable due date, and Customer has not cured such failure within 30 days after receiving notice of such failure, Valendo Health Inc. may (i) suspend and/or terminate Customer’s access, in full or in part, to the Services and/or (ii) terminate this Agreement. Any such suspension or termination will not relieve Customer of its obligation to pay any outstanding Program Fees. All amounts payable under this Agreement shall be paid by Customer in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. The total amount indicated on an invoice does not include applicable transaction taxes. Customer is responsible for any sales, use, excise, gross receipts, personal property, privilege, value added tax liabilities and any other duties or other transaction taxes or charges imposed by any governmental entity related to the MID Location(s) activities, excluding only taxes based solely on Valendo Health Inc. income.
4. LICENSE GRANT; OWNERSHIP. Use of Valendo Health Inc. Application(s), Data and Analytics. Customer agrees to the following terms and conditions regarding Customer’s use of Valendo Health Inc. Application, including, but not limited to, any third party terms.
4.1(a). A “Valendo Health Inc. Application” is defined as any software or analytics product, including associated interfaces and knowledge bases, provided or made available by Valendo Health Inc. to Customer under this Agreement. During the Term of this Agreement, Valendo Health Inc. grants to Customer a non-exclusive, non-transferable, limited license to access and use the Valendo Health Inc. Applications that may be made available to Customer from time to time for the purpose of medically-integrated dispensing workflow operations, patient engagement & management and related analytics. Valendo Health Inc. may, at its sole discretion, upgrade, modify or discontinue a Valendo Health Inc. Application at any time. Use of a Valendo Health Inc. Application will be subject to an Acceptable Use Policy posted at www.valendohealth.com/customer-terms and which may be modified by Valendo Health Inc. at its sole discretion from time to time.
4.1(b). Valendo Health Inc. grants to Customer a perpetual, irrevocable, non-exclusive, sublicensable, transferable, royalty-free license to use the data and analytics provided by Valendo Health Inc. under this Agreement.
4.2 Ownership. Valendo Health Inc. will retain exclusive ownership and all intellectual property rights, title and interest in the Valendo Health Inc. Proprietary Materials. “Valendo Health Inc. Proprietary Materials” means (i) the Valendo Health Inc. Application(s), (ii) Valendo Health Inc. policies, procedures, clinical protocols, technical documentation, user guides, patient-facing materials or training materials, (iii) data and analytics created or developed by Valendo Health Inc., (iv) any other code, documentation, technology, works, inventions, techniques and know-how relating to the Services (whether or not customized or otherwise developed in connection with this Agreement) and (v) any suggestions and feedback provided by or on behalf of Customer relating to any of the foregoing. To the extent that ownership of any intellectual property or other right, title or interest to the Valendo Health Inc. Proprietary Materials does not automatically vest in Valendo Health Inc., Customer hereby irrevocably assigns (and shall cause its personnel and contractors to assign) to Valendo Health Inc. all right, title and interest with respect thereto, and agrees to execute such further assignments and other documents as Valendo Health Inc. may reasonably request in order to further evidence such assignment and/or to seek intellectual property protections. Valendo Health Inc. reserves all rights not expressly granted to Customer in this Agreement.
4.3 Restrictions on Use. Customer shall not use a Valendo Health Inc. Application for any purposes beyond the scope of the access granted in this Agreement. Customer will not, directly or indirectly: (i) provide, disclose, divulge or make available to or permit access to or use of any of the Valendo Health Inc. Proprietary Materials by any Third Party, (ii) copy or reproduce all or any part of the Valendo Health Inc. Proprietary Materials, (iii) interfere, or attempt to interfere, with the Valendo Health Inc. Proprietary Materials in any way, (iv) distribute, market, sell, lease, transfer, license or sublicense the Valendo Health Inc. Proprietary Materials, (v) make, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Valendo Health Inc. Proprietary Materials, or discover or attempt to discover the source code of all or any portion of the Valendo Health Inc. Proprietary Materials in any way for any reason, (vi) engage in any fraudulent, illegal or unauthorized use of the Valendo Health Inc. Proprietary Materials, (vii) introduce into or transmit through a Valendo Health Inc. Application any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design, (viii) attempt to provide or create a link to the Valendo Health Inc. Proprietary Materials, except as authorized by Valendo Health Inc., (ix) create any frames at any other web sites pertaining to or using any of the information provided by a Valendo Health Inc. Application, (x) bypass or breach any security protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own valid Login (xi) engage in or allow any action involving the Valendo Health Inc. Proprietary Materials that is inconsistent with the terms and conditions of this Agreement or (xii) install any software or third party tool on the infrastructure that Valendo Health Inc. provides without Valendo Health Inc.’s prior approval.
4.4 Third Party Terms. As applicable in connection with the Services, Valendo Health Inc. hereby grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable, non-licensable right to access and use the Third Party Items through the Valendo Health Inc. Application during the term of this Agreement. Valendo Health Inc. may modify the Third Party Terms in the event Valendo Health Inc. adds or replaces Third Party Items or as required in connection with changes to the applicable third party agreements for the Third Party Items. Valendo Health Inc. agrees to use commercially reasonable efforts to post the current Third Party Terms. The Third Party Items will not be deemed part of Valendo Health Inc. Proprietary Materials. All rights granted in this Section are solely for Customer and its Authorized Users’ use in connection with the Services and will terminate on the earlier of expiration or termination of (i) this Agreement, or (ii) the applicable agreement between Valendo Health Inc. and the licensor of the Third Party Items. Third Party Terms are posted at www.valendohealth.com/customer-terms.
4.5 AI Disclosure. Valendo Health Inc. may utilize HIPAA-compliant artificial intelligence ("AI") solutions in the performance of its services and related workflows. All AI-driven processes shall comply with applicable privacy and security regulations, including, without limitation, the Health Insurance Portability and Accountability Act ("HIPAA"), to ensure the protection and confidentiality of patient data. While Valendo Health Inc. shall take commercially reasonable measures to ensure the accuracy and security of AI-driven processes, the Parties acknowledge and agree that, as with any technology, AI systems may have inherent limitations. Accordingly, the outcomes, recommendations, or decisions generated by AI systems may not always be error-free, and Valendo Health Inc. makes no representations, warranties, or guarantees regarding the accuracy, completeness, or reliability of such AI-generated results.
5. CONFIDENTIALITY. Each Party may have access to information, oral or written, relating to the other Party’s business and operations, including pricing and discount lists, policies, procedures and general know-how, contractual arrangements (including the terms of this Agreement), current and future products and services, proprietary technology or trade secrets (“Confidential Information”). The receiving Party (“Recipient”) shall not disclose the disclosing Party’s (“Discloser”) Confidential Information to any third party without Discloser’s consent, except to Recipient’s employees, officers, directors, legal counsel, accountants, financial or professional advisors who: (i) have a legitimate need to know such information in connection with this Agreement, and (ii) are bound by confidentiality obligations at least as protective as those herein. Information is not considered confidential if it: (i) is already known, without restriction; (ii) is or becomes publicly known through no wrongful act or inaction of Recipient; (iii) has been rightfully received by Recipient from a third party authorized to make such communication without restriction; or (iv) has been independently developed by Recipient without use of the Confidential Information. If Recipient is required by law to disclose any Confidential Information of Discloser, it will, if legally permissible, provide prompt written notice to enable Discloser to seek a protective order and/or take other steps to protect the information.
6. TERMINATION.
6.1 Termination for Breach. Upon written notice by the non-breaching party to the other Party, if the other Party is in any material respect in breach, default or violation of any provision of this Agreement (a “Default”), and the Default is capable of being cured within 30 days of receipt of such notice from the non-breaching party, the breaching party will be entitled to cure such Default within such 30 day period before the non-breaching party can terminate this Agreement. If the breaching party has been notified of a Default and the Default is not capable of being cured, the breaching party will not be entitled to any cure period and the non-breaching Party may immediately terminate this Agreement. Any action or inaction by Customer that materially undermines the Program or Valendo Health Inc.'s ability to deliver the Services shall be considered a material breach of this Agreement. For the avoidance of doubt, a deliberate effort by Customer to direct prescriptions for medications on the Program formulary to a dispensary or pharmacy not supported by Valendo Health Inc., other than as required by patient choice or the independent clinical judgment of Customer's prescribing physicians, shall be considered a material breach of this Agreement.
6.2 Early Termination Fee. If Customer terminates this Agreement for any reason other than Valendo Health Inc.’s uncured material breach, Customer shall pay an early termination fee (the “Early Termination Fee”). In the event no invoicing by Valendo Health Inc. has occurred during the Term, the Early Termination Fee shall be $25,000; otherwise the Early Termination Fee shall equal 80% of the Applicable Monthly Fee multiplied by the number of months remaining in the then-current Term. The “Applicable Monthly Fee” is defined as: (i) the average of the last 3 months’ invoices; or (ii) if fewer than 3 months have been invoiced, the last month’s invoice. The Parties agree that Valendo Health Inc.’s actual damages would be difficult to ascertain and that the Early Termination Fee represents a fair and reasonable estimate of such damages and is not intended as a penalty.
6.3 Termination for Insolvency or Change in Business. Either Party may terminate this Agreement upon the liquidation or dissolution of the other Party or if there is a filing by or against the other Party of any petition under any state or federal bankruptcy law (including a petition for reorganization, arrangement or extension of debts) or under any other similar laws providing for the relief of debtors, which petition is not set aside, stayed or terminated within 60 days after the filing thereof. For clarity, a Party does not have such right of termination in the event of its own liquidation, dissolution, or bankruptcy filings.
6.4 Effect of Termination. Upon the termination or expiration of the Agreement, (i) Customer’s applicable license to access and use the Services will terminate as of the termination or expiration effective date, (ii) except as provided under the license granted to Customer herein, Customer shall return or destroy the Valendo Health Inc. Proprietary Materials and any and all equipment, software, documentation or other deliverables under this Agreement, (iii) Customer shall pay all sums due and owing as of the effective date of expiration or termination, as well as any non-cancellable expenses that Valendo Health Inc. committed to incur in anticipation of performing the Services, and (iv) Valendo Health Inc., at its sole expense, shall provide Customer a one-time data transfer of Customer data which is in the possession of Valendo Health Inc. as of the effective date of termination. With respect to Confidential Information, upon written request following termination of this Agreement for any reason, the Receiving Party shall promptly deliver to the Disclosing Party all tangible materials containing Confidential Information, along with any copies and summaries. To the extent the information cannot be returned to the Disclosing Party, the Receiving Party must use reasonable efforts to destroy it. Confidential Information that has been incorporated into analyses or other documents prepared by the Receiving Party shall be held by the Receiving Party and kept confidential or destroyed as provided in this Section and shall not be used for any reason that would be a violation of this Agreement. Notwithstanding the foregoing, (a) any Confidential Information integrated into patient charts, billing systems, or other systems of a Party hereunder, and which can reasonably be kept confidential by such Party, shall not be subject to this Section and (b) Valendo Health Inc. may retain a copy of Customer’s Confidential Information for purposes of responding to Customer inquiries, audits, or other reviews of services as provided to Customer by Valendo Health Inc., subject always to the confidentiality obligations under this Agreement.
6.5 Survival. The Parties’ obligations under this Agreement, which by their nature are intended to continue beyond the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement, including Sections 3-5 of this Agreement and Sections 3, 4.2, 5, 6.4, 6.5, 7-10 of this Exhibit. Customer shall continue to make payments to Valendo Health Inc. pursuant to Sections 3 of this Agreement and this Exhibit through the effective date of termination of this Agreement.
7. NOTICES. All notices, demands, requests, and other communications under this Agreement must be delivered by a method providing proof of delivery and will be deemed given on the date of delivery. Notices to Customer shall be sent to the email or address associated with Customer's account, or such other address as Customer may designate in writing. Notices to Valendo Health Inc. shall be sent to Valendo Health Inc.., 85 5th Ave, New York, NY 10003 with a copy to legal@valendohealth.com. A Party may update its notice information by providing written notice to the other Party.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or organization; (b) the representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (c) 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; and (d) it shall engage counsel to review this Agreement and shall comply with, and be responsible for, all applicable laws, rules, and regulations related to this Agreement. Customer further represents and warrants that its dispensing and billing practices shall comply in all material respects with applicable federal and state law and Customer's agreements with third-party payors.
8.2 DISCLAIMER. VALENDO HEALTH INC. HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICES PROVIDED BY VALENDO HEALTH INC. HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY REPRESENTATIONS AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
9. INDEMNIFICATION.
9.1 Indemnification. Each Party will indemnify, defend and hold harmless the other and its and their officers, directors, shareholders, employees, representatives and contractors (collectively, “Indemnitees”) from and against any claim, liability, damage, loss or expense (including reasonable attorney’s fees and expenses) (“Claim”) incurred by or imposed upon any of the Indemnitees to the extent arising from: (a) material breach of, or material inaccuracy in, any representation, warranty or covenant hereunder, (b) negligence or willful misconduct of a Party or any person acting at its direction or on its behalf, (c) deviation from any applicable legal requirement or, in the case of Customer, standard of care, (d) any investigation or final adjudication by any governmental agency or licensing board involving a Party or its personnel or providers; or (e) in the case of Customer, any actual or alleged violation by Customer of any federal or state law or regulation or payor contract, arising from or in connection with Customer's dispensing activities or billing practices. Any Indemnitee seeking indemnification under this Section shall give notice promptly after learning of any Claim.
9.2 LIMITATION ON LIABILITY. IN NO EVENT SHALL VALENDO HEALTH INC. BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES FOR (i) LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO CUSTOMER INFORMATION, DATA, PHI OR TRANSMISSIONS, (ii) LOSS OF OR DAMAGE TO SOFTWARE OR HARDWARE, (iii) ACCESS DELAYS OR ACCESS INTERRUPTIONS, (iv) COMPUTER VIRUSES, (v) CUSTOMER’S CLINICAL JUDGMENT OR PRACTICES; OR (vi) ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL VALENDO HEALTH INC.’S AGGREGATE LIABILITY EXCEED THE FEES PAID TO VALENDO HEALTH INC. HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION RESULTING IN LIABILITY, REGARDLESS OF THE FORM OF ACTION, OR $200,000, WHICHEVER IS GREATER. VALENDO HEALTH INC.’S TOTAL CUMULATIVE LIABILITY UNDER THE BUSINESS ASSOCIATE AGREEMENT BETWEEN THE PARTIES (“BAA”) SHALL NOT EXCEED $1,000,000.
9.3 Acknowledgement and Savings Clause. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION 9 ARE REASONABLE, ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN VALENDO HEALTH INC. AND CUSTOMER AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO CUSTOMER IN THIS AGREEMENT ARE EXCLUSIVE. If any of the exclusions or limitations of liability set forth herein are determined to be not enforceable, such exclusions and limitations of liability shall be enforced to the fullest extent permitted by law.
10. MISCELLANEOUS.
10.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that Valendo Health Inc. may assign this Agreement without consent to an affiliate or to a successor-in-interest in connection with the sale of all or substantially all of its assets or a change of ownership or control. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Notwithstanding any change of control, merger, acquisition, or assignment of Customer, all provisions of this Agreement shall remain in full force and effect and shall be enforceable by and against any entity or individual that assumes control or ownership of Customer. Any successor or assignee of Customer shall be deemed to have notice of, and shall be obligated to perform in accordance with, this Agreement, thereby preserving the contractual relationship despite any corporate restructuring, sale, or other transfer of control of Customer. If Customer seeks to terminate this Agreement in connection with or as a result of a change of control, merger, acquisition, or assignment of Customer, such termination shall be deemed a termination without cause and Customer shall pay the Early Termination Fee. Any attempt to alter, modify, or amend the terms and conditions of this Agreement without the consent of Valendo Health Inc. shall be null and void and of no force or effect.
10.2 Publicity. Customer grants Valendo Health Inc. the right to use Customer’s name, logo, trademarks and/or trade names in forums and materials indicating that it is a customer of Valendo Health Inc..
10.3 Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its choice of law provisions.
10.4 Dispute Resolution. In the event of any controversy, claim or dispute between the Parties related to this Agreement (each, a “Dispute”), the Parties must first attempt to resolve such Dispute by appointing and authorizing a senior executive to resolve the Dispute (“Senior Executive”). The Senior Executives will meet for negotiations within 15 days after receipt of written notice of the Dispute (the “Initial Negotiation Period”). If the Dispute has not been resolved within 15 days after the end of the Initial Negotiation Period, then the aggrieved Party may proceed to seek relief through confidential arbitration. Such arbitration will be administered by the American Health Law Association Dispute Resolution Service and conducted pursuant to the AHLA Rules of Procedure for Arbitration at a site agreed to by the parties. Judgment on the award may be entered and enforced in any court having jurisdiction. Notwithstanding the foregoing, either Party may immediately seek injunctive relief for Disputes regarding a breach of confidentiality or violation of intellectual property rights. No claim or other action under this Agreement may be brought more than one (1) year after the date on which the claiming Party first knew or reasonably should have known of the facts giving rise to such claim. Each Party expressly waives any statute of limitations to the contrary to the fullest extent permitted by applicable law.
10.5 Force Majeure. Either Party will be excused for failures and delays in performance of its respective obligations under this Agreement due to any cause beyond its control and without the fault, including without limitation, any act of God, war, terrorism, riot or insurrection, law or regulation, strike, flood, fire, explosion, pandemic, or inability due to any of the aforementioned causes to obtain necessary labor, materials or facilities, for so long as such event continues, and for a reasonable period of time thereafter. The Parties will nonetheless in good faith exercise all reasonable efforts to perform.
10.6 Miscellaneous. The Parties are independent contractors and neither Party has any right, power or authority to act or create any obligation on behalf of the other Party. 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. This Agreement may be executed in counterparts (including .pdf copies), which will together constitute one agreement. Should any part of this Agreement be invalid or unenforceable, it will not affect the validity and enforceability of the remaining portions. A court of competent jurisdiction may modify such invalid or unenforceable provision. This Agreement may not be modified or amended except in writing executed by the Parties. This Agreement constitutes the entire agreement and supersedes all prior written or oral agreements and representations with respect to the subject matter hereof. A waiver by either Party of a breach or violation of any provision of this Agreement will only be valid if it is in writing and signed by the Party providing the waiver and will not operate or be construed to be a waiver of any subsequent breach thereof unless such waiver explicitly provides otherwise.
Technical Requirements
Third Party Terms Addendum
The following Third Party Terms apply to all sublicenses of Third Party Items (as defined in Valendo Health Inc. Standard Terms and Conditions) pursuant to agreements that Valendo Health Inc. has made with its third party licensors (“Third Party Licensors”):
I. FIRST DATABANK, INC.
FIRST DATABANK, INC., a wholly owned subsidiary of The Hearst Corporation, a Delaware corporation with offices at 500 East 96th Street, Suite 500, Indianapolis, IN 46240 (“First DataBank”), has licensed certain copyrighted databases of medical, pharmaceutical and nutritional information, and periodic updates thereto (“FDB Databases”), related access software products and user manuals (“Manuals”, and collectively with the FDB Databases and FDB Toolkits, the “FDB Knowledge Bases”) to Valendo Health Inc. for sublicense to its Customers (“End Users”). The following additional terms and conditions apply to all Valendo Health Inc. sublicenses of the FDB Knowledge Bases to Customer:
By accessing the Licensed Solutions, you (the “End User”) agree as follows:
1. DISCLAIMER OF WARRANTY. END USER AGREES THAT THE FDB LICENSED SOLUTIONS ARE PROVIDED ON AN "AS IS" BASIS, FDB MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF THE DATA FROM WHICH THE LICENSED SOLUTIONS ARE COMPILED, NOR THE COMPATIBILITY OF THE LICENSED SOLUTIONS WITH LICENSEE'S HARDWARE AND SYSTEMS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
2. Assumption of Risk. Without limitation of the disclaimer of warranties set forth above, End User acknowledges and agrees that: FDB represents and warrants that it has utilized reasonable care in collecting and reporting the information contained in the Licensed Solutions and has obtained such information from sources believed to be reliable. FDB, however, does not warrant the accuracy of codes, prices or other data contained in the Licensed Solutions. Information reflecting prices is not a quotation or offer to sell or purchase. The clinical information contained in the Licensed Solutions is intended as a supplement to, and not a substitute for, the knowledge, expertise, skill, and judgment of physicians, pharmacists, or other healthcare professionals in patient care. The absence of a warning for a given drug or drug combination should not be construed to indicate that the drug or drug combination is safe, appropriate or effective in any given patient. The professional duty to the patient in providing healthcare services lies solely with the healthcare professional providing patient care services. FDB does not assume any responsibility for actions of End User or any personnel which may result in any liability or damages due to malpractice, failure to warn, negligence or any other basis. End User and the other health care providers responsible for patient care shall retain full responsibility for all decisions relating to patient care, and the FDB Licensed Solutions shall not be used as a substitute or replacement for diagnosis or treatment recommendations or other clinical decisions or judgment. The foregoing allocation of liability fairly reflects the economic circumstances and risks that End User and FDB are willing to undertake in view of the amounts paid and/or payable by End User for the license of the FDB Licensed Solutions.
3. LIMITATION OF LIABILITY: INDEMNITY. IN NO EVENT WILL FDB BE LIABLE TO END USER FOR ANY LOST REVENUES, PROFITS, DATA OR OTHER INFORMATION, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOLUTIONS OR ARISING OUT OF OR IN ANY OTHER WAY CONNECTED WITH THE LICENSE GRANTED TO END USER HEREIN, EVEN IF FDB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FDB'S TOTAL LIABILITIES, WHETHER ARISING UNDER CONTRACT OR OTHERWISE, ARE LIMITED TO THE FEES RECEIVED BY FDB HEREUNDER SPECIFICALLY RELATING TO THE FDB PRODUCT. End User hereby covenants and agrees to indemnify and hold FDB harmless from and against any liability, loss, injury or expense (including reasonable attorneys' fees and court costs) imposed upon, incurred or suffered by FDB relating to or arising out of any allegation or claim by any third party that the use of the Licensed Solutions, or any information contained therein, caused or contributed to the personal injury or death of an individual.
4. Third Party Beneficiary. End User acknowledges and agrees that FDB is a third party beneficiary of these terms and conditions.
II. RELAY HEALTH
Relay Health has licensed certain services to Valendo Health Inc. (“Reseller”) for sublicense to its Customers (“Customers” or “End Users”). The following additional terms and conditions apply to all Valendo Health Inc. sublicenses to End Users:
General. Surescripts requires each entity that utilizes the Surescripts Network provided by Surescripts LLC and resold by RelayHealth to agree to the provisions Third Party Flow Down Provisions (“Flow Down Terms”). Reseller will comply with the Flow Down Terms as a Reseller of the RelayEligibility™ - Commercial E1 Service from RelayHealth (the “Commercial E1 Service). Reseller is solely responsible to require its Customers (as defined below) and/or End Users (as defined in the Agreement) to adhere to the Flow Down Terms to the extent applicable. If Reseller has knowledge that a Customer is not in compliance with these Flow Down terms, Reseller shall promptly notify such Customer and shall promptly notify the RelayHealth of such non-compliance and suspend such Customer’s access to the Surescripts Services if Customer fails to cure such non-compliance within thirty (30) days of receiving notice
A. For purposes of these Flow Down Terms, the following words and terms will have the meanings set forth below. Any capitalized terms not defined herein will have the meaning ascribed to them in the RelayEligibility™ - Commercial E1 Service Exhibit or the Agreement. “Applicable Law” means any and all federal, state and local laws and regulations that apply to Reseller, Customers or End Users. “Customer” means a customer of Reseller that has entered into a written agreement pursuant to which Reseller provides or makes available to the customer the Commercial E1 Service. “End User” means an individual that is employed by, an active member of the medical staff of, workforce of (as defined in 45 C.F.R. § 160.103) or otherwise performing healthcare services as an authorized representative of a Customer “Governmental” means any United States local, state or federal governmental authority. “Pharmacy Benefit Manager Data Source” means a pharmacy benefit manager (“PBM”), health benefit payor or administrator, or other similar entity which has entered into a written agreement with Surescripts to allow access through the Surescripts Network to information for the Commercial E1 Service. “Private Information” means (i) Nonpublic Personal Information as defined by the Gramm-Leach-Bliley Act; or (ii) any data or information that: (1) relates to an individual, and (2) identifies or can reasonably be believed to form the basis for identifying an individual (including, but not limited to, an individual’s name, postal address, e-mail address, telephone number, date of birth, Social Security number, driver’s license number, financial account number, or any other unique identifier) to the extent received, transmitted, maintained or created by a Party under these Flow Down Terms. Private Information does not include PHI. “Proprietary Information” means any and all information, materials, processes, ideas, and techniques, in each case whether or not reduced to writing: (i) which are disclosed or made available by RelayHealth regarding the Surescripts Network or Surescripts Services; (ii) which afford possessors of the information a commercial advantage over others who do not have such information; (iii) which are considered trade secrets under Applicable Laws; and/ or (iv) which, if utilized or disclosed by a receiving party such information, would place RelayHealth or Surescripts at a competitive or business disadvantage. Proprietary Information includes, by way of illustration, but without limitation, any and all information relating to: Surescripts Services accessed by Reseller through RelayHealth; processes therefore; employee and customer information; accounting data; statistical data; existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto; information relating to development and marketing plans; strategies; forecasts; any and all information and documentation deemed confidential or a trade secret under any federal, state, or local statute or regulation; and the like, whether or not tangibly embodied in a document, model, specimen, computer storage device, or other physical object. “Protected Health Information” or “PHI” will have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, as applied solely to the information created, received, maintained or transmitted by Surescripts as RelayHealth’s subcontractor. “Reseller End User” means an individual that is employed by, an active member of the medical staff of, workforce of (as defined in 45 C.F.R. § 160.103) or otherwise performing healthcare services as an authorized representative of Reseller. “Surescripts Data” means any data or information provided to Reseller and , its Customer’s and End Users by or through RelayHealth by Surescripts as part of the Commercial E1 Service, including statistics collected by Surescripts regarding transactions processed by the Surescripts Network, test data, test cases, configuration information, and problem description and resolution information; provided, however, that is does not include any data sent by Reseller, its Customers or End Users to Surescripts through RelayHealth. “Surescripts Services” means the service that facilitates the transmission of eligibility status information to end users (i.e., a licensed pharmacy that is duly licensed or registered with the appropriate government authority to fill prescription orders that has entered into a written agreement with RelayHealth to receive eligibility services) using the Surescripts network in connection with the treatment of a specific patient.
B. SURESCRIPTS HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE.
C. Reseller shall hold Proprietary Information in confidence and shall not, except in the performance of the duties under these Flow Down Terms disclose or permit access to any such information to any person, firm or corporation other than persons, firms or corporations authorized by that party, and shall cause their officers, employees, agents and representatives to take such action as shall be necessary or advisable to preserve and protect the confidentiality of such information. Any documentation provided by RelayHealth under these Flow Down Terms related to the Surescripts Services or Surescripts Network is Proprietary Information of RelayHealth or its vendor Surescripts and may not be copied or used in any way other than as specifically authorized in these Flow Down Terms. Proprietary Information does not include PHI, which will be governed by the applicable Business Associate Agreement. Proprietary Information does not include Private Information.
D. Reseller shall establish and maintain safeguards against the destruction, loss, or alteration of PHI, Private Information (as defined below) or Proprietary Information that are no less rigorous than those maintained by Reseller for its own information of a similar nature, but no less than reasonable safeguards.
E. Reseller shall reasonably safeguard PHI or Private Information from any intentional or unintentional use or disclosure that is in violation of Applicable Law, and limit incidental uses or disclosures made pursuant to otherwise permitted or required disclosures.
F. Reseller shall and shall require its Customers comply with Applicable Law, including with respect to any obligations to be licensed, registered, or otherwise authorized by a Governmental authority to perform the applicable healthcare services. Reseller and its Customers shall ensure (a) that each Reseller customer and end user of customer authorized to use the Commercial E1 Service meets the definition of Customer and End User set forth above; and (b) that each End User is identity proofed in accordance with industry standards to Surescripts’ reasonable satisfaction, pursuant to standards that Surescripts may issue from time to time. Reseller and its Customers shall further ensure that each End User is authenticated in accordance with procedures compliant with a national industry standard recognized by Surescripts in its reasonable discretion.
G. Reseller and Customers shall not use the Surescripts Data provided by Pharmacy Benefit Manager Data Sources to promote or encourage Reseller or its Customers maintaining pharmacy benefit manager services or to augment Reseller’s or its Customers own eligibility or medication history records. In the event that Reseller has pharmacy benefit manager operations, Reseller shall maintain all Surescripts Data provided by Pharmacy Benefit Manager Data Sources on a separate or “walled off” from the data from its other pharmacy benefit manager operations, if any.
H. Reseller represents and warrants, on behalf od itself and its Customers, that all patient consents and/or authorizations required by applicable law have been obtained prior to requesting Surescripts Data for such patient through the Surescripts Network. Reseller shall and shall cause its Customer’s andEnd Users comply with any privacy and patient consent policies of Surescripts related to the delivery of Private Information and/or PHI as may be published by Surescripts from time to time and are provided to RelayHealth. Reseller acknowledges on behalf of itself and its Customers and End Users that Pharmacy Benefit Manager Data Sources may impose additional privacy and patient consent policies on the delivery of Private Information and/or PHI through the Surescripts Network. Reseller shall and shall require its Customers and End Users to use commercially reasonable efforts to implement any such policies within ninety (90) days following Reseller’s receipt of such policies from RelayHealth. In the event that Reseller or its Customers does not implement such policies within ninety (90) days of its receipt of such policies from RelayHealth (which shall be no more than thirty (30) days after RelayHealth’s receipt of such policies from Surescripts), then Surescripts shall immediately suspend the Commercial E1 Service responses for such applicable Pharmacy Benefit Manager Data Source.
I. Reseller shall not and shall cause its Customers and End Users to not attempt to capture, open, examine, modify, add commercial or other messages to, repackage, distribute, license, sell or make any commercial use of any data or information provided by any Pharmacy Benefit Manager Data Source by or through the Surescripts Network other than as specifically permitted under the Commercial E1 Exhibit. Reseller and Reseller End Users shall engage in no act or omission which would alter the content of, interfere with, modify, or delay (i) the transmission of any data or information provided by the Pharmacy Benefit Manager Data Sources which is communicated through the Surescripts Network, or (ii) the incoming or outgoing transmission or receipt of any message sent through the Surescripts Network. Surescripts may share Reseller’s data with other Pharmacy Benefit Manager Data Sources to the extent necessary to fulfill the terms and conditions of the Commercial E1 Exhibit. Nothing in these Additional Flow Down Terms or the Commercial E1 Exhibit is intended to restrict use of data or information provided by Pharmacy Benefit Manager Data Sources and obtained or sent through the Surescripts Network once such data or information has become a part of a patient's permanent record.
J. Surescripts uses available technology to match patient identities in order to provide the Commercial E1 Service. Because patient information is maintained in multiple places, not all of which are accessible to Surescripts, and because not all patient information is kept in a standard fashion or is regularly updated, it is possible that false matches may occur or that there may be errors or omissions in the information provided by Surescripts from Pharmacy Benefit Manager Data Sources. Surescripts is not a health plan, health care provider, or prescriber. Surescripts does not and cannot independently verify or review the information transmitted through the Surescripts Network for accuracy or completeness. Neither Surescripts nor any Pharmacy Benefit Manager Data Source provides any representations or warranties with respect to the accuracy or completeness of such
III. COVERMYMEDS
CoverMyMeds has licensed certain services to Valendo Health Inc. for sublicense to its Customers (“Users”). The following additional terms and conditions apply to all Valendo Health Inc. sublicenses to Users:
User Terms of Service
User’s use of the Services described in any SOW and this Exhibit A, including any related and ancillary services provided by CoverMyMeds, and any updates, new features and enhancements to the Services (collectively, the “Services”), is subject to these User Terms of Service. These User Terms of Service shall be attached to the Agreement and shall apply to all Users utilizing the Services.
1. Description of CoverMyMeds’ Services
CoverMyMeds offers various Services, including, but not limited to, the patient journey, prior authorizations (“PA”), PA assistance, including follow up communications, benefit verification and investigation, patient financial assistance, prescription management and follow up communications to patients regarding patient enrollments, and hub services.
CoverMyMeds may establish business relationships with certain economic sponsors, such as pharmaceutical manufacturers and payors, to facilitate the Services and may share protected health information pursuant to a valid HIPAA Authorization that complies with 45 CFR 164 to support certain program drugs prescribed to the patient.
2. Privacy Obligations of CoverMyMeds
CoverMyMeds may use subcontractors to assist in performing some of its Services. When these subcontractors have access to PHI, they will enter into business associate agreements, consistent with the terms of HIPAA, with CoverMyMeds to the extent required by applicable law, and CoverMyMeds will be responsible for such subcontractors acting on the behalf of CoverMyMeds to perform some of the Services. The Services are provided to User at no cost, dependent upon CoverMyMeds’ ability to share data created or obtained by CoverMyMeds in the course of providing its Services as specified in the Terms of Service and as permitted by law.
Data is used for continuous improvement of current services, such as to improve the end user experience, and streamline the prior authorization process, as well as the development of future products, and services. User acknowledges that CoverMyMeds, or its subcontractors, or both, may be authorized to de-identify PHI in accordance with 45 C.F.R. § 164.514(a)-(c) to use such de-identified data as permitted by applicable law, including, without limitation, for CoverMyMeds’ internal business use. User also acknowledges that CoverMyMeds may act as a business associate to covered entities in connection with the transmission of PHI, and no agreements between User and CoverMyMeds restricts or limits any rights or authorizations granted to CoverMyMeds by such covered entities.
User authorizes CoverMyMeds to use and disclose User’s information provided in connection with the Services, including without limitation, User’s National Provider Identifier number (“NPI number”), unless prohibited by applicable law.
User acknowledges and authorizes that CoverMyMeds may perform data analytics in connection with prescribing practices and outcomes of PAs submitted and use and disclose such analytics for CoverMyMeds’ internal business use and third-party reporting.
User acknowledge and agree that CoverMyMeds or its affiliate may also engage directly with patients, and
CoverMyMeds or its affiliate may use and disclose PHI pursuant to an authorization that complies with 45 CFR 164. Additionally User acknowledge that patients may provide information to CoverMyMeds or its affiliate, not as part of the Services, that is the same or substantially similar to information obtained by CoverMyMeds in the course of performing its Services, and that CoverMyMeds’ or affiliate’s use and disclosure of such information is subject exclusively to the agreement or agreements between the patient and CoverMyMeds or its affiliate.
Use of the CoverMyMeds Services may include the collection, use and disclosure of certain general information regarding usage of the CoverMyMeds Services, including how a User navigates or uses or interacts with the CoverMyMeds Services, such as information collected through Google analytics or otherwise require allowing "cookies" to improve user experience. Specific information about these activities are described in the CoverMyMeds Privacy Policy.
3. User Obligations
User represents and warrants that User will not engage in any conduct or submit to the CoverMyMeds Services any content or other material that is illegal, inaccurate, misleading, misappropriated, dilutive, defamatory, obscene, offensive, or otherwise objectionable, or submit any promotional (for advertising or marketing purposes) content or material.
User represents and warrants that User will not undertake any activity which may adversely affect the use of the CoverMyMeds Services by any person or damage, corrupt, tamper with or infect the CoverMyMeds Services or any information or telecommunication system of CoverMyMeds with a virus or other malicious computer program.
User represents and warrants that User will not reverse engineer, disassemble, or decompile any software code or proprietary elements of the CoverMyMeds’ Services.
As applicable, User shall provide current, complete, and accurate information when Users create an account to use the CoverMyMeds Services ("Account"). If CoverMyMeds believes that any information provided by User is not current, complete, or accurate, CoverMyMeds has the right to refuse access to the CoverMyMeds Services, and to terminate or suspend such User’s Account. CoverMyMeds shall not be responsible for verifying the accuracy of any data or information that provided by User to CoverMyMeds when creating an Account and hereby disclaims any and all liability resulting from or related to any inaccuracy of data or information provided by User. User is solely responsible for maintaining the confidentiality of User’s password and Account, as well as for any and all activities that occur as a result of the use of User’s Account. Client must require the User to promptly notify Client of any unauthorized use of User’s Account or any other breach of security related to User’s Account and in turn Client agrees to promptly notify CoverMyMeds of such unauthorized use or other breach of security.
User agrees that: (i) in no event will CoverMyMeds be liable for any loss that User incurs as a result of any other person using User’s password or Account with or without User’s knowledge or consent, and (ii) User shall be liable for any and all losses incurred by CoverMyMeds or any third party as a result of any other person’s use of User’s password or Account. User further agrees that it shall not use the account of any other person at any time.
Users acknowledges and agrees that an individual User’s Account is specific to that User, and therefore, if an individual User’s employment with User’s organization ends or is terminated for any reason, such User shall no longer be permitted to access the CoverMyMeds Services through that Account. Client must require the User to promptly notify Client of any such end or termination of employment and in turn Client must promptly notify CoverMyMeds at privacy@covermymeds.com in order to allow CoverMyMeds to disable that Account. IN THE EVENT OF ANY SUSPENSION OR TERMINATION OF THE COVERMYMEDS SERVICES, USER ACKNOWLEDGES
THAT SUCH SUSPENSION OR TERMINATION MAY DELETE CLIENT’S INFORMATION, FILES, AND OTHER PREVIOUSLY AVAILABLE CONTENT, AND COVERMYMEDS SHALL HAVE NO RESPONSIBILITY TO BACKUP OR PRESERVE ANY SUCH
MATERIALS OR DATA.
IV. Moov
Moov has licensed certain services to Valendo Health Inc. for sublicense to its Customers (“Users”). The terms are available at https://moov.io/legal/platform-agreement. The following additional terms and conditions apply to all Valendo Health Inc. sublicenses to Users:
This Moov Platform Agreement (this “Platform Agreement”) is by and between Moov Financial, Inc., a Delaware corporation (“Moov”), and you or the Person on whose behalf you are accepting this Platform Agreement (“User”), and is effective as of the date on which this Platform Agreement is fully executed by Moov and User, as of the date of User’s acceptance of this Platform Agreement electronically, or as of the date of User’s initial access to or use of the Moov Services (the “Effective Date”). One or more financial institution partners of Moov (each, an “FI Partner”) will be a party to this Platform Agreement for the purposes described in the Consumer User Terms and the Commercial User Terms, as applicable, which means such FI Partners will have the right to exercise or enforce any applicable rights under this Platform Agreement and will have the right, but not the obligation, to perform any applicable responsibilities under this Platform Agreement.
This Platform Agreement consists of the Consumer User Terms and the Services Terms applicable to Consumer Users and the Commercial User Terms and the Services Terms applicable to Commercial Users.
The Consumer User Terms set forth the terms and conditions applicable to any Person who is an individual and who establishes a Moov Account to access and use the Moov Services for personal, family, or household purposes (“Consumer User”). If User is a Consumer User, then User’s access to and use of the Moov Services will be subject to the Consumer User Terms and any applicable Services Terms identified in the Consumer User Terms. For Consumer Users, references to “Platform Agreement” in this Platform Agreement will mean the Consumer User Terms and the applicable Services Terms.
The Commercial User Terms set forth terms and conditions applicable to any Person that establishes a Moov Account to access and use the Moov Services for commercial or business purposes (“Commercial User”). If User is a Commercial User, then User’s access to and use of the Moov Services will be subject to the Commercial User Terms and any applicable Services Terms identified in the Commercial User Terms. For Commercial Users, references to “Platform Agreement” in this Platform Agreement will mean the Commercial User Terms and the applicable Services Terms.
Capitalized terms will have the meanings ascribed to them in the Consumer User Terms, the Commercial User Terms, or the applicable Services Terms:
