These Facility Terms & Conditions (this “Agreement” or "Facility Terms") govern the use of the Authentic Services (as defined herein) by healthcare facilities, imaging centers, health system release of information offices, and other clients Authentic may serve (each a “Facility” and pluralized as “Facilities”) and comprise the entire agreement between the Facility and AUTHENTIC, INC., a Delaware corporation (the “Authentic”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement shall prevail over any orders, proposals, general terms and conditions of purchase and any other Facility document regardless whether or when Facility has submitted such terms. Authentic and Facility may be sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
By (a) clicking a box indicating acceptance of these Terms; (b) executing an order form or other instrument that references these Terms; or (c) accessing or using any Authentic Services (as defined herein), Facility agrees to be bound by these Terms, which constitute a legally enforceable agreement between Authentic and Facility.
1. AUTHENTIC SERVICES.
1.1. Definition of Authentic Services. Authentic provides Facilities with an automated technology platform for query, retrieval and transmission of medial radiology images and accompanying radiological reports (“Authentic Services”).
1.2. License. Subject to the terms and conditions in this Agreement, Facility shall have a non-exclusive, non-sublicensable, and non-transferable license during the Term (as hereinafter defined) to use the Authentic Services to streamline Facility’s management and fulfillment of radiology imaging and accompanying radiological report requests. Facility will use (and cause to be used) the Authentic Services in accordance with any documentation and instructions provided by Authentic from time to time.
1.3. License Restrictions. Except as otherwise provided in Section 3 of this Agreement, neither Facility nor any of its respective agents, parent, affiliates, subsidiaries, members, managers, directors, officers, shareholders, subcontractors or clients shall reproduce, modify, sublicense, or distribute the Authentic Services, or any other proprietary data, information, access codes or software programs provided by Authentic. Facility shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the software or the documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Authentic Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Authentic Services, in whole or in part; (iv) remove any proprietary notices from the Authentic Services or any documentation provided in connection therewith; or (v) use the Authentic Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
1.4. Use of Authentic Services. Facility acknowledges and agrees that: (a) Facility is solely responsible for uploading or otherwise providing any information or documents (including, without limitation, patient information, images, communications, reports, and other documentation) into the Authentic Services (collectively, the “Uploaded Documentation”); (b) Authentic is not obligated to review or otherwise verify any Uploaded Documentation; (c) Facility is solely responsible for the transmission of such Uploaded Documentation to any recipient through the Authentic Services; (d) Facility is solely responsible for any errors in connection with the Uploaded Documentation being provided to the recipient; and (e) Facility is solely responsible for setting fees and adhering to jurisdictional laws in each state for fees charged to legal requestors and patients for release of medical information through Authentic Services.
2. BUSINESS ASSOCIATE AGREEMENT. Facility and Authentic shall enter into a Business Associate Agreement (the "Business Associate Agreement" or "BAA"). Facility represents that it has ensured that a legally sufficient BAA is in effect between Facility and Authentic prior to transmitting any protected health information to Authentic in connection with this Agreement.
3.1. Confidential Information. Each Party (the “Disclosing Party”) has previously disclosed and will continue to disclose Confidential Information (as hereinafter defined) to the other Party (the “Receiving Party”). As used in this Agreement, regardless of whether disclosed to the Receiving Party before, during or after the execution of this Agreement, the term “Confidential Information” shall mean any and all trade secrets, negotiations, and other confidential information of a Party, including, without limitation, (a) all product specifications, data, know-how, formulae, compositions, processes, design, sketches, reports, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, current and planned research and development, client lists, current and anticipated Facility requirements, price lists, market studies, marketing tools, business plans, business methods, business practices, business concepts, computer software and programs (including object code and source code), computer software and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, and methods), and any other information, however documented, that is proprietary to such Party, (b) all trade secret and other information concerning the business and affairs of such Party (including historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel training and techniques and materials, and pricing), however documented, and (c) all notes, analysis, compilations, studies, summaries, and other material prepared by or for such Party containing or based, in whole or in part, on any information included in the foregoing, whether or not expressly marked as proprietary or confidential.
3.2. Exclusions. The term “Confidential Information” shall not include any information that (w) at the time of disclosure or thereafter is in the public domain through no fault of the Receiving Party; (x) was available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source was not bound by an obligation of confidentiality with respect to such information; or (y) was independently developed by the Receiving Party without any use of or reference to the Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required (aa) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Receiving Party shall first have given written notice to the Disclosing Party, if permitted by law, and made a reasonable effort, at the Disclosing Party’s expense, to obtain a protective order; or (bb) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. The Parties shall treat the terms of this Agreement and all communications and negotiations related to this Agreement and potential relationship as confidential using no less than a reasonable degree of care. The Receiving Party shall keep secret and treat as confidential each item of the Disclosing Party’s Confidential Information and shall not disclose, or permit the disclosure of, any of the Disclosing Party’s Confidential Information to any person or entity without the prior written consent of the Disclosing Party. To the extent that the Confidential Information rises to the level of a trade secret under applicable law, then the Receiving Party shall, for as long as such Confidential Information remains a trade secret (or for the maximum period of time otherwise allowed under applicable law), protect and maintain the confidentiality of such trade secrets and refrain from disclosing, copying, or using any such trade secrets without the Disclosing Party’s prior written consent.
3.3. Limitations on Use. The Receiving Party shall not use, or permit the use of, any Confidential Information for any purpose other than in connection with the proper performance of this Agreement and the exercise of its licenses granted hereunder. The originals and all copies of Confidential Information, regardless of the medium in which they are stored, shall be promptly returned to the Disclosing Party in good order at any time upon the request of the Disclosing Party or immediately destroyed upon termination or expiration of this Agreement.
4. RESERVATION OF RIGHTS. Authentic shall be the sole and exclusive owner of all right, title, and interest in and to the Authentic Services, including, without limitation, all intellectual property and other rights related thereto. Facility acknowledges that the Authentic Services, any related software, and any data and information provided by Authentic beyond the specific scenario data necessary for the integration with Authentic Services, and all of Authentic’s copyrights, names, trademarks, trade names, service marks, other intellectual property (registered or unregistered), or any other identifying characteristics are proprietary intellectual property of significant value and goodwill to Authentic. Facility acknowledges and agrees that Authentic shall be the sole owner of any enhancements, alterations, updates, corrections, revisions or new versions of the Authentic Services. Authentic reserves all rights not expressly granted to Facility in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Facility or any third party any intellectual property rights or other right, title, or interest in or to the Authentic Services.
5. TERM AND TERMINATION.
5.1. Go-Live Date. As used herein “Go-Live Date” shall mean the date upon which the Authentic Services are successfully installed on the Facility system.
5.2. Term. The term of this Agreement shall commence at the earlier of: (a) the Go-Live Date (if applicable); or (b) the beginning of Facility’s use of the Authentic Services and continue until either party gives the other party sixty (60) days’ written notice of its intention to terminate the Agreement (the “Term”). In addition to any remedies that may be provided in this Agreement or at law or in equity, Authentic may terminate this Agreement with immediate effect and without notice if: (a) Facility has not otherwise performed or complied with any of the terms of this Agreement; or (b) Facility becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or (c) by Authentic at any time and without notice.
5.3. Termination. Upon expiration or earlier termination of this Agreement, Facility’s license will also terminate, and Facility shall cease using and shall delete, destroy, and return all copies of the Authentic Services (and any Authentic copyrights, names, trademarks, trade names, service marks, and any other Authentic intellectual property) and any accompanying documents and information. No expiration or termination will affect Facility’s obligation to pay all fees and expenses that became due and payable before such expiration or termination or entitle Facility to any refund.
6. FEES, PAYMENTS, AND TAXES.
6.1. Fees. Facility shall pay Authentic fees for the use of the Authentic Services (the “Fees”). Fees may include: (a) Subscription Fees, (b) Per-Use Fees, and (c) Payment Processing Fees. As used in this Agreement, the term “Subscription Fees” shall mean the annual or monthly license fees for any Authentic Services licensed under this Agreement. “Per-Use Fees” shall mean the variable fees Facility may incur based on its ongoing usage of the Authentic Services. “Payment Processing Fees” shall mean the fees Facility may incur based on collecting payments from requestors via a third-party payment processor integrated into the Authentic Services. All Fees incorporate both software licensing and services fees.
6.2. Fees Schedule. Authentic shall set forth a schedule of fees in a pricing sheet (the “Fee Schedule” or “Pricing Sheet”), a copy of which Facility may request from time to time, and which Authentic may change from time to time in its sole discretion. Authentic will make commercially reasonable efforts to provide at least thirty (30) days written notice to Facility (email is sufficient) prior to any changes to the Fee Schedule.
6.3. Invoicing and Payments. Facility shall pay Authentic net fifteen (15) days following the date of an Authentic invoice. Facility shall pay interest on all late payments calculated daily and compounded monthly at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law. Facility shall reimburse Authentic for all costs incurred by Authentic in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees. In addition to all other remedies available under this Agreement or at law (which Authentic does not waive by the exercise of any rights under this Agreement), if Facility fails to pay any amounts when due under this Agreement, Authentic may: (i) suspend its performance under this Agreement, including, without limitation, termination of the Authentic Services to Facility and any of its sublicensees; and/or (ii) terminate this Agreement for breach. All fees and other amounts payable by Facility under this Agreement are exclusive of taxes and similar assessments.
6.4. Taxes. Facility is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Facility hereunder.
6.5 Clearpath Partners. To the extent that Facility purchases any Authentic Services from an authorized reseller or similar non-Authentic entity (a “Clearpath Partner”), invoices for some Authentic Services may be issued to Facility by the Clearpath Partner, and in that case, in the event of any conflict between this Section 6 and Clearpath Partner’s billing terms, the Clearpath Partner’s terms shall prevail.
7. WARRANTY DISCLAIMER. THE AUTHENTIC SERVICES, SOFTWARE, AND DOCUMENTATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND AUTHENTIC HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AUTHENTIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AUTHENTIC MAKES NO WARRANTY OF ANY KIND THAT THE AUTHENTIC SERVICES, SOFTWARE, AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET FACILITY’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL AUTHENTIC BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER AUTHENTIC WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AUTHENTIC'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO AUTHENTIC UNDER THIS AGREEMENT IN THE SIX ( 6 ) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. INDEMNIFICATION. Facility shall indemnify, defend and hold harmless Authentic and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to, arising out of or resulting from any claim of a third party or Authentic arising out of or occurring in connection with the Facility’s use or offering of the Authentic Services or Facility’s negligence, willful misconduct or breach of this Agreement. Facility shall not enter into any settlement without Authentic’s or Indemnified Party's prior written consent.
10. GENERAL PROVISIONS.
10.1. Relationship of the Parties. Notwithstanding anything to the contrary in this Agreement, for all purposes of this Agreement each party shall be and act as an independent contractor and not as employee/employer, partner, joint venturer or agent of the other and shall not bind nor attempt to bind the other to any contract.
10.2. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
10.3. Surviving Provisions. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) the Sections titled “Use of Authentic Services,” “Confidentiality,” “Reservation of Rights,” “Fees, Payments, and Taxes,” and “General Provisions” of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
10.4. Assignment. Facility and its sublicensees shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Authentic. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
10.5. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the introductory paragraph (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
10.6. Cumulative Remedies. Except as otherwise set forth in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
10.7. Attorney’s Fees. In the event of any litigation or proceeding arising as a result of the breach of this Agreement or the failure to perform hereunder, or failure or untruthfulness of any representation or warranty herein, the Party or Parties prevailing in such litigation or proceeding shall be entitled to collect the costs and expenses of bringing or defending such litigation or proceeding, including reasonable attorneys' fees, from the Party or Parties not prevailing.
10.8. Force Majeure. Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
10.9. Waiver and Amendment. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.10. Severability. If any paragraph, subparagraph, term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid and unenforceable, the remainder of this Agreement or the application of such paragraph, subparagraph, term or provision to persons or circumstances, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each paragraph, subparagraph, term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
10.11. Jurisdiction; Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Michigan, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than U.S. District Court for the Eastern District of Michigan or the courts of the State of Michigan sitting in Oakland County, Michigan and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court for the Eastern District of Michigan or the courts of the State of Michigan sitting in Oakland County, Michigan. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
10.12. Headings. Headings or titles used in this Agreement are for convenience only and shall not be deemed to affect the meaning or construction of any of the terms, provisions, covenants, or conditions of this Agreement.
10.13. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, will be an original, but such counterparts will together constitute one and the same instrument. Electronic signatures will be accepted as original signatures for all purposes.