Practice EHR Trial & Subscription Agreement

 

THIS IS A LEGALLY BINDING AGREEMENT between Practice EHR LLC, a Texas limited liability company (“PE”), on the hand, and you and your medical practice (collectively, the “Practice”), on the other hand.  BY CLICKING “I AGREE” OR BY OTHERWISE SIGNING-UP FOR A PRACTICE EHR ACCOUNT, OR BY ACCESSING OR USING THE Services (AS DEFINED BELOW), THE Practice is ENTERING INTO THIS PRACTICE EHR SUBSCRIPTION AGREEMENT (this “Agreement”) AND THE Practice AGREESTO BE BOUND BY ITS TERMS AND CONDITIONS. 

PLEASE READ THIS Agreement CAREFULLY, AND DO NOT SIGN-UP FOR AN ACCOUNT OR USE THE Services IF THE Practice IS UNWILLING OR UNABLE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS Agreement.  PE and the Practice are collectively referred to as the “Parties.” 

RECITALS


WHEREAS, the Practice is a medical practice licensed to practice medicine;

WHEREAS, PE has developed and implemented a web-based software application for practice management and electronic health records, which software application is being licensed by PE pursuant to and in accordance with the terms and conditions of this Agreement as a service to the Practice (the “Services”); and

WHEREAS, the Practice desires to license use of the Services from PE, and PE desires to license use of the Services to the Practice, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

TRIAL TERMS AND CONDITIONS


As an inducement to PE to provide the Practice with a free trial of the Services (“Free Trial”), the Practice hereby agrees to the following terms and conditions:

  1. Subject to PE’s rights to modify or terminate the Trial Period (as defined below) hereunder, the trial period shall commence on the day the Practice initiates the Free Trial by registering on http://practiceehr.com/free-trial/ (or any successor site established by PE) for a trial user account and ends thirty (30) days thereafter (such period is hereinafter referred to as the “Trial Period”). Such Trial Period may not be extended except in a writing signed by PE.  PE may immediately suspend or terminate the Free Trial at any time (whether before, during, or after the Trial Period), without notice to the Practice, and without any liability whatsoever.  PE reserves the right to modify, changes, or supplement these Trial Terms and Conditions at any time by posting new Trial Terms and Conditions on PE’s applicable website.  Such new Trial Terms and Conditions are effective upon posting by PE on PE’s applicable website.  Therefore, the Practice hereby agrees to be responsible for regularly and periodically accessing and reviewing such Trial Terms and Conditions for any modifications, changes, or supplements thereto.
  2. Trial License Grant. PE hereby grants the Practice, upon the terms and conditions contained in these Trial Terms and Conditions, a limited, non-transferable, non-sublicensable, non-exclusive license for all licensed professionals associated with the Practice, including, without limitation, all physicians, nurses and physician assistants (collectively, “Licensed Users”) to use the Services, during the Trial Period in accordance with PE’s then current documentation and only: (i) in the ordinary course of the Practice’s normal and ordinary internal business, and (ii) in accordance with applicable federal, state, and local laws, rules, and regulations (“Intended Purpose”).  The Practice covenants and agrees that the Services shall not be used by any person or entity other than the Licensed Users for the Intended Purpose and shall prevent any subcontractor or agent of the Practice or any other third party from using the Services.  The Practice acknowledges that the Services will encompass information about items, devices, products and/or services not owned by PE, but instead provided by a third party or third parties, inclusive of, but not limited to, third-party vendors and manufacturers (“Third Party Services”).
  3. Trial License Restrictions. In furtherance of Section B of the Trial Terms and Conditions, the Practice shall not, and shall not permit any third party (including, but not limited to, affiliates, employees or agents of any third party) to: (i) duplicate, modify, decompile or reverse engineer any of the Services for any reason; or (ii) resell the Services to any unrelated third party. This is a license, not a sale. The Practice shall not, and shall not allow anyone to: (1) circumvent any security feature of the Services; (2) use the Services to provide services (including processing, commercial timesharing, rental, sharing, application service provider, “service office,” or “service bureau” arrangements) to any third party; (3) permit any third party to view, use, access, or copy the Services; or (4) disclose, publish, broadcast, sell, or otherwise redistribute the Services. The Practice shall maintain the confidentiality and security of any password, account, and other identification information provided with respect to the Services and not to provide it to any other person or entity (including, but not limited to affiliates, employees or agents of any third party). The Practice shall be responsible for all use of, and activities that occur under, its password(s), account, and other identification information and for any actions that take place through its access to the Services (whether conducted by the Practice or another). The Practice agrees to use the Services only for the Intended Purpose.
  4. THE SERVICES, SUPPORT, DOCUMENTATION, AND ANY OTHER SERVICES, DATA, AND CONTENT (INCLUSIVE OF THIRD PARTY SERVICES AND ANY AND ALL THIRD PARTY ITEMS, PRODUCTS, DEVICES AND/OR MATERIALS) PROVIDED BY PE UNDER THESE TRIAL TERMS AND CONDITIONS OR AS PART OF THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. PE DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT.  THE PRACTICE ACKNOWLEDGES AND AGREES THAT (I) PE SHALL HAVE NO LIABILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF PE’S SUBCONTRACTORS IN CONNECTION WITH THE PROVISION OF SERVICES HEREUNDER; AND (II) THE PRACTICE’S SOLE REMEDY WITH RESPECT TO THE ACTS OR OMISSIONS OF THE SUBCONTRACTORS SHALL BE DIRECT RECOURSE AND/OR ACTION BY THE PRACTICE AGAINST THE APPLICABLE SUBCONTRACTOR.  THE PRACTICE EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF AND RECEIPT OF THE SERVICES ARE AT THE PRACTICE’S SOLE RISK, INCLUDING ERRORS IN INFORMATION, CONTENT, PRICING, AND OTHER OUTPUT FROM THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PE OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTIES, PRODUCT ENDORSEMENTS OR MEDICAL ADVICE, OR IN ANY WAY INCREASE THE SCOPE OF PE’S OBLIGATIONS UNDER THIS AGREEMENT.  PE DOES NOT ENDORSE ANY THIRD PARTY SERVICE CONTAINED WITHIN THE CONTENT OF THE LICENSED SERVICES. THE LISTING OF THIRD PARTY PRODUCT WITHIN THE SERVICES IN NO WAY CONSTITUTES AN ENDORSEMENT OF SUCH BY PE, NOR ANY REPRESENTATION OR WARRANTY AS TO THE SAFETY, EFFICACY OR APPROPRIATENESS OF ANY THIRD PARTY PRODUCT. PE PROVIDES NO PROFESSIONAL OR MEDICAL ADVICE AS TO ANY PRODUCT, EQUIPMENT, SERVICE OR THIRD PARTY ITEM OR USE OF ANY PRODUCT, EQUIPMENT OR THIRD PARTY SERVICE.  PE SHALL HAVE NO LIABILITY OF ANY KIND TO THE PRACTICE IN CONNECTION WITH THE PRACTICE’S PROCUREMENT OR USE OF ANY EQUIPMENT, PRODUCTS OR THIRD PARTY ITEM.  PURCHASE AND/OR USE OF ANY THIRD PARTY PRODUCT CITED WITHIN THE SERVICES IS AT THE PRACTICE’S SOLE RISK.
  5. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET AND TO LINK TO THIRD PARTY WEB SITES. THE PRACTICE ACKNOWLEDGES AND AGREES PE DOES NOT OPERATE OR CONTROL THE INTERNET OR THE THIRD PARTY WEB SITES AND: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE PRACTICE’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. PE SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. PE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM PE’S NETWORK AND OTHER PORTIONS OF THE INTERNET, OR THE AVAILABILITY OF OR ACCESS TO THIRD PARTY WEB SITES. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.  THE ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT THE PRACTICE’S CONNECTIONS TO THE INTERNET, ACCESS TO THIRD PARTY WEB SITES OR PORTIONS THE INTERNET OR WEB SITES, AND THE TRANSMISSION OF DATA. ALTHOUGH PE WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, PE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR.  ACCORDINGLY, PE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATING TO SUCH EVENTS.

PRACTICE EHR SUBSCRIPTION TERMS


If the Practice has purchased a license to or has otherwise subscribed to the Services as indicated in PE’s applicable records or if the Practice otherwise continues to access or use the Services after the expiration of any applicable trial period, the Practice hereby agrees to the following terms and conditions (which terms and conditions when effective supersede and replace the Trial Terms and Conditions above):

  1. LICENSE AND USE.
    1. License Grant. PE hereby grants the Practice, upon the terms and conditions contained herein, a limited, non-transferable, non-sublicensable, non-exclusive license for all licensed professionals associated with the Practice, including, without limitation, all physicians, nurses and physician assistants (collectively, “Licensed Users”) to use the Services, during the Term (as defined in Section 10 below) in accordance with PE’s then current documentation and only: (i) in the ordinary course of the Practice’s normal and ordinary internal business, and (ii) in accordance with applicable federal, state, and local laws, rules, and regulations (“Intended Purpose”).  The Practice covenants and agrees that the Services shall not be used by any person or entity other than the Licensed Users for the Intended Purpose and shall prevent any subcontractor or agent of the Practice or any other third party from using the Services.  The Practice acknowledges that the Services will encompass information about items, devices, products and/or services not owned by PE, but instead provided by a third party or third parties, inclusive of, but not limited to, third-party vendors and manufacturers (“Third Party Services”).
    2. License Restrictions. In furtherance of Section 1(a) hereof, the Practice shall not, and shall not permit any third party (including, but not limited to, affiliates, employees or agents of any third party) to: (i) duplicate, modify, decompile or reverse engineer any of the Services for any reason; or (ii) resell the Services to any unrelated third party. This is a license, not a sale. The Practice shall not, and shall not allow anyone to: (1) circumvent any security feature of the Services; (2) use the Services to provide services (including processing, commercial timesharing, rental, sharing, application service provider, “service office,” or “service bureau” arrangements) to any third party; (3) permit any third party to view, use, access, or copy the Services; or (4) disclose, publish, broadcast, sell, or otherwise redistribute the Services. The Practice shall maintain the confidentiality and security of any password, account, and other identification information provided with respect to the Services and not to provide it to any other person or entity (including, but not limited to affiliates, employees or agents of any third party). The Practice shall be responsible for all use of, and activities that occur under, its password(s), account, and other identification information and for any actions that take place through its access to the Services (whether conducted by the Practice or another). The Practice agrees to use the Services only for the Intended Purpose.
    3. Modification. PE reserves the right to modify the Services and their respective features and functionality at any time, without notice or warning and without liability.  PE shall have the right to add, drop, modify, or replace, all or any part of the Third Party Services at any time.
    4. Reservation of Rights. PE reserves the right to display the PE brand, trademarks, logo, and any image, name, brand or label which PE has rights to, on any and all of the Services. PE reserves all rights not expressly granted to the Practice in this Agreement.
    5. Suspension of Access. PE may, in its sole discretion, suspend the Practice’s access to the Services for any of the following reasons (i) to prevent damages to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) if the Practice breaches any provision set forth in this Agreement; (iv) to otherwise protect PE from potential legal liability; and/or (v) in the event the License Fee (as such term is defined in Section 2(a) hereof) remains unpaid for more than fifteen (15) or more days from the date such fee is due to PE from the Practice.   PE may, as an accommodation to the Practice, provide the Practice with notice prior to or promptly following any suspension of the Services, but is under no legal obligation to do so.  PE will restore access to the Services as soon as the event giving rise to suspension has been resolved.
    6. User Compliance. The Practice represents, warrants and covenants that it will cause any and all of its Licensed Users to comply with the terms of this Agreement and shall be primarily responsible for all use of the Services by its Licensed Users and such Licensed Users failure to comply with the terms and conditions of this Agreement.
    7. Advertising and Promotions on Services. PE will have the sole and exclusive right to offer and sell advertising, promotion, merchandising or marketing services (including, but not limited to banners, links, marketing services, promotions, product tie-ins, and product or service merchandising) to third parties on or through the Services.
    8. Business Associate. In maintaining, using and affording access to the Practice’s Health Information (as defined in Section 11(c)(iii)) in accordance with this Agreement, PE will, in accordance with the requirements of The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as such requirements are informed by the guidance given by the United Stated Department of Health and Human Services (or any office, department or agency operating thereunder, “HHS”):
      1. Not use or disclose such information except as permitted or required by this Agreement or as required by law (as such term is defined in 45 CFR §164.103);
      2. Use appropriate safeguards consistent with the requirements of the Security Rule with respect to the Practice’s Health Information to prevent the use or disclosure of such information in a manner inconsistent with the provisions of this Agreement;
      3. Report to the Practice any use or disclosure of the Practice’s Health Information not provided for by this Agreement of which PE becomes aware, including breaches of the Practice’s Health Information that meets the definition of “unsecured protected health information” under HIPAA, in each case as required by §164.410 of HIPAA, and any security incident (as defined by HIPAA) involving the Practice’s Health Information of which we become aware;
      4. In accordance with §§164.502(e)(1)(ii) and 164.308(b)(2) of HIPAA, as applicable, ensure that any subcontractors that create, receive, maintain or transmit the Practice’s Health Information on PE’s behalf agrees to the same restrictions, conditions, and requirements that apply to PE with respect to such information (as such requirement is interpreted or applicable in connection with or under HIPAA); and PE obtains satisfactory assurances (as such term is interpreted or applicable in connection with or under HIPAA) that such subcontractors will appropriately safeguard such information (it being understood, for the avoidance of doubt, that other users of the Services are not our subcontractors);
      5. Make available to the Practice, the Practice’s Health Information in furtherance of the Practice’s obligations under §164.524 of the Privacy Rule;
      6. Make available to the Practice, the Practice’s Health Information in furtherance of the Practice’s obligations to amend and incorporate any amendments to such information in accordance with §164.526 of the Privacy Rule;
      7. Maintain and make available the Practice’s Health Information to provide an accounting of disclosures in accordance with §164.528 of the Privacy Rule;
      8. Make our internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by PE on the Practice’s behalf, available to the Secretary of HHS for purposes of determining the Practice’s compliance with the Privacy Rule; and
      9. At termination of this Agreement and provided that all fees payable by the Practice to PE have been fully paid, PE will provide the Practice with a copy of the Practice’s Health Information in an electronic form that is accessible through commercially available hardware and software. The Practice may have to purchase such hardware and software from third parties in order to access the Practice’s data, and the Practice may have to configure its systems in order to use the Practice’s data in its practice. Upon termination and provided that all fees payable by the Practice to PE have been fully paid, PE will, if feasible, return or destroy all Protected Health Information received from, or created or received by PE on the Practice’s behalf that PE still maintains in any form, and retain no copies of such information; or, if such return or destruction is not feasible (whether for technical, legal, regulatory or operational reasons), extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible.
  2. LICENSE FEE. 
    1. Fee. During the Term, the Practice shall timely pay PE the provider monthly fee(s) set forth under the Setup Tab of the Practice EHR Home Screen (“License Fee”) for the Services.  The License Fee is due and payable on the 1st of every month during the Term and shall be charged to the Practice’s: (i) credit card on file with PE; or (ii) bank account on file with PE through ACH transfer from such bank account. The Practice hereby authorizes PE to charge its credit card and/or bank account on file with PE on a monthly basis (which period is subject to change at any time at PE’s option).
    2. Taxes. The Practice shall be responsible for and shall pay PE for any sales, use, import, excise, value added or other taxes or levies associated with this Agreement and the Services, excluding any taxes based on the net income of PE, unless customer is tax exempt and provides PE with sufficient documentation evidencing such tax exempt status.
  3. INTELLECTUAL PROPERTY.
    1. IP Ownership. PE shall own all rights, title, interest and intellectual property rights in (i) the Services (inclusive of the items, materials and data contained therein), (ii) all materials and technologies used in and/or in connection with the Services, and (iii) any and all materials and technologies provided by PE, and/or developed by PE, alone or jointly with others.  The Practice shall not use any information or data disclosed by PE to the Practice in connection with this Agreement to contest the validity of any PE intellectual property.  Any such use of PE’s information and data shall constitute a material breach of this Agreement.
  4. SUPPORT AND UPDATES.
    1. Support. In connection with the license granted hereunder, during its then current support hours, PE shall provide reasonable off-site technical and other support for the Practice and the Licensed Users.
    2. Updates. PE may, from time to time, in its sole discretion, provide Updates to the Practice, such updates may be provided across the platform in the cloud. For purposes of this Agreement, “Updates” means corrections, changes and improvements to the Services that (i) relate to the operating performance of the Services, but do not change the basic function of the Services; (ii) are intended for general commercial use in connection with the Services; and (iii) are provided generally to PE’s other customers without additional charge. Updates do not necessarily include new releases or versions of the Services for which PE, in its sole and exclusive discretion, imposes an additional charge. PE may, however, in its sole and exclusive discretion, provide Updates to the Practice that include new functionality. Any and all Updates.  Any and all Updates are deemed part of the Services and shall be protected and governed by the terms and conditions of this Agreement and subject to the license granted in Section 1.
  5. CONFIDENTIALITY
    1. Confidential Information. The Practice acknowledges and agrees that the Services constitute valuable and confidential proprietary information and intellectual property of PE, that are protected under civil and criminal law and under the laws of patent, copyright and trade secret, and, except as expressly provided herein, shall not be disclosed in any form by the Practice to any unauthorized third party. Each Party agrees that all information supplied by one Party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation, (i) source code, trade secrets, databases, designs and techniques, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials; and (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”).  The Services shall be deemed Confidential Information of PE.
    2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or nondisclosure agreement, obligation or duty; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.  It will be presumed that any Confidential Information in a Receiving Party’s possession is not within exceptions (b), (c) or (d) above, and the burden will be upon the Receiving Party to prove otherwise by records and documentation.
    3. Treatment of Confidential Information. Each Party recognizes the importance of the other’s Confidential Information.  In particular, each Party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 65 and elsewhere in this Agreement.  Accordingly, each Party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; and (c) the Receiving Party currently has, and for so long as it possesses Confidential Information of the Disclosing Party, it will maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Confidential Information other than in accordance with this Agreement, including without limitation written instruction to and agreements with employees and agents who are bound by an obligation of confidentiality no less restrictive than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information. The Receiving Party will instruct and require its employees and agents not to disclose Confidential Information to third parties, including without limitation customers, subcontractors or consultants, without the Disclosing Party’s prior written consent; and will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect all proprietary rights in and ownership of its Confidential Information.
    4. Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies and may seek and obtain injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss or posting of a bond or other security, in addition to whatever remedies either of them might have at law or equity.  Any breach of this Section 5 will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
  6. NO WARRANTIES; THIRD PARTY DISCLAIMER
    1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, SUPPORT, DOCUMENTATION, AND ANY OTHER SERVICES, DATA, AND CONTENT (INCLUSIVE OF THIRD PARTY SERVICES AND ANY AND ALL THIRD PARTY ITEMS, PRODUCTS, DEVICES AND/OR MATERIALS) PROVIDED BY PE UNDER THIS AGREEMENT OR AS PART OF THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. PE DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT.  THE PRACTICE ACKNOWLEDGES AND AGREES THAT (I) PE SHALL HAVE NO LIABILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF PE’S SUBCONTRACTORS (AS SUCH TERM IS DEFINED IN SECTION 11(d) HEREOF) IN CONNECTION WITH THE PROVISION OF SERVICES HEREUNDER; AND (II) THE PRACTICE’S SOLE REMEDY WITH RESPECT TO THE ACTS OR OMISSIONS OF THE SUBCONTRACTORS SHALL BE DIRECT RECOURSE AND/OR ACTION BY THE PRACTICE AGAINST THE APPLICABLE SUBCONTRACTOR.  THE PRACTICE EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF AND RECEIPT OF THE SERVICES ARE AT THE PRACTICE’S SOLE RISK, INCLUDING ERRORS IN INFORMATION, CONTENT, PRICING, AND OTHER OUTPUT FROM THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PE OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTIES, PRODUCT ENDORSEMENTS OR MEDICAL ADVICE, OR IN ANY WAY INCREASE THE SCOPE OF PE’S OBLIGATIONS UNDER THIS AGREEMENT.  PE DOES NOT ENDORSE ANY THIRD PARTY SERVICE CONTAINED WITHIN THE CONTENT OF THE LICENSED SERVICES. THE LISTING OF THIRD PARTY PRODUCT WITHIN THE SERVICES IN NO WAY CONSTITUTES AN ENDORSEMENT OF SUCH BY PE, NOR ANY REPRESENTATION OR WARRANTY AS TO THE SAFETY, EFFICACY OR APPROPRIATENESS OF ANY THIRD PARTY PRODUCT. PE PROVIDES NO PROFESSIONAL OR MEDICAL ADVICE AS TO ANY PRODUCT, EQUIPMENT, SERVICE OR THIRD PARTY ITEM OR USE OF ANY PRODUCT, EQUIPMENT OR THIRD PARTY SERVICE.  PE SHALL HAVE NO LIABILITY OF ANY KIND TO THE PRACTICE IN CONNECTION WITH THE PRACTICE’S PROCUREMENT OR USE OF ANY EQUIPMENT, PRODUCTS OR THIRD PARTY ITEM.  PURCHASE AND/OR USE OF ANY THIRD PARTY PRODUCT CITED WITHIN THE SERVICES IS AT THE PRACTICE’S SOLE RISK.
    2. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET AND TO LINK TO THIRD PARTY WEB SITES. THE PRACTICE ACKNOWLEDGES AND AGREES PE DOES NOT OPERATE OR CONTROL THE INTERNET OR THE THIRD PARTY WEB SITES AND: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE PRACTICE’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. PE SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. PE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM PE’S NETWORK AND OTHER PORTIONS OF THE INTERNET, OR THE AVAILABILITY OF OR ACCESS TO THIRD PARTY WEB SITES. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.  THE ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT THE PRACTICE’S CONNECTIONS TO THE INTERNET, ACCESS TO THIRD PARTY WEB SITES OR PORTIONS THE INTERNET OR WEB SITES, AND THE TRANSMISSION OF DATA. ALTHOUGH PE WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, PE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR.  ACCORDINGLY, PE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATING TO SUCH EVENTS.
  7. PRACTICE INDEMNIFICATION.
    1. The Practice shall indemnify, defend and hold PE and its shareholders, officers, directors, employees, agents and representatives harmless from and against any and all Losses incurred by any of them arising out of, resulting from or related to any or all of the following: (a) the Practice’s use of the Services in excess of the rights granted in this Agreement; (b) the Practice’s material breach of this Agreement; (c) the Practice’s purchase, selection, recommendation or use of any Third Party Service, or use of Third Party Services resulting from use of PE’s Services; and/or (d) the Practice’s use or reliance upon any information, data and/or materials encompassed within the Services generated or produced from or by PE’s subscribers.
  8. LIMITATION OF LIABILITY
    1. THE PRACTICE AGREES THAT NEITHER PE, NOR ANY OF ITS OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES OR AGENTS SHALL IN ANY EVENT BE LIABLE (i) FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES REGARDLESS OF KIND OR TYPE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, DATA, OR GOODWILL, REGARDLESS OF WHETHER PE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) FOR ANY DAMAGES WHATSOEVER IN CONNECTION WITH, OR IN ANY WAY RELATED TO, THE SERVICES AND/OR ANY THIRD PARTY SERVICE. THE PRACTICE WAIVES ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT IT MAY HAVE AGAINST PE ARISING OUT OF THIS AGREEMENT AND THE SERVICES.
    2. IN ANY EVENT, PE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) RELATING IN ANY WAY TO THIS AGREEMENT SHALL NOT EXCEED ONE TIMES THE AMOUNT OF THE LICENSE FEES PAID DURING THE PRECEDING THREE (3) MONTHS BY THE PRACTICE TO PE.
    3. THE PRACTICE ACKNOWLEDGES AND AGREES THAT IT SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ITS RELIANCE ON AND USE OF ANY THIRD PARTY DATA AND FOR ANY LIABILITY OR DAMAGES ARISING THEREFROM. FOR THE PURPOSES OF THIS SECTION 8(c), THIRD PARTY DATA SHALL INCLUDE ALL DATA, INFORMATION AND MATERIALS SUBMITTED TO PE BY THE PRACTICE, PE’S CUSTOMERS AND SUBSCRIBERS. THE PRACTICE FURTHER AGREES THAT IT WILL HOLD HARMLESS AND FOREVER RELEASE AND DISCHARGE PE FROM AND AGAINST ANY LIABILITY OR DAMAGES ARISING OUT OF THE PRACTICE’S USE OR RELIANCE ON ANY THIRD PARTY DATA.
    4. THE LIMITATION OF LIABILITY AND TYPES OF DAMAGES STATED IN THIS AGREEMENT ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF LAWSUIT OR CLAIM A PARTY MAY BRING, WHETHER IN TORT, CONTRACT OR OTHERWISE. THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES PROVIDED IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IF ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
  9. INJUNCTIVE RELIEF.
    1. The Practice acknowledges that the provisions set forth in Sections 1, 3, 5, 6, 7, 8, 9 and 11 are necessary to protect the business, goodwill, and other proprietary interests of PE.  In the event of any breach or threatened breach of the above cited provisions, the Practice acknowledges PE shall incur irreparable damage for which there will be no adequate remedy at law.  Accordingly, if the Practice or any of its agents or representatives breaches or threatens to breach any of the foregoing provisions, PE shall be entitled, in addition to and without prejudice to all other rights and remedies available to it, an injunction (without any bond or other security being required therefor) restraining any breach of the foregoing provisions by the Practice or its agents or representatives.
  10. TERM AND TERMINATION
    1. Term. This Agreement shall commence on the Effective Date and continue until terminated in accordance with Section 10(b) hereof (the “Term”).
    2. Termination. Either Party may terminate this Agreement on written notice to the other Party if the other Party is in material breach of its obligations hereunder and fails to cure the breach within thirty (30) days of such written notice.  In addition, either Party may, in its sole discretion, elect to terminate this Agreement on written notice to the other Party upon the bankruptcy or insolvency of the other Party or upon the commencing voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other Party.  Notwithstanding the foregoing or any other provision of this Agreement, at any time the Practice may terminate this Agreement for convenience, without cause or liability for such termination, on thirty (30) days prior written notice to PE.
    3. Effect of Termination. The Practice shall be liable for all fees and charges incurred prior to the date of termination and shall not be entitled to a refund of any License Fees paid by the Practice prior to the date of termination.  All such fees are non-refundable. Upon termination, the Practice shall immediately return to PE, at PE’s expense, the original and all copies of Confidential Information furnished by PE to the Practice hereunder.
    4. Survival. In addition to any provisions of this Agreement which continue by its terms, the provisions of Sections 3, 5, 6, 7, 8, 9 and 11 survive termination of this Agreement for any reason.
  11. MISCELLANEOUS
    1. Independent Contractors. Each Party hereto is an independent contractor and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between PE and the Practice, nor shall either Party be authorized to bind the other in any way.
    2. Remedies Not Exclusive; No Waiver; Amendments. Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement must be in writing and signed by the party against whom enforcement is sought.
    3. De-Identified Information. In consideration of the provision of the Services by PE, the Practice hereby transfers and assigns to PE all right, title and interest in and to all De-Identified Information (as defined below) that we make from the Practice’s Information pursuant to Section 11(c)(i). The Practice agrees that PE may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that the Practice has no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof.  The Practice acknowledges that the rights conferred by this Section are a principal component of the consideration for the provision of the Services, without which PE would not enter into this Agreement.

      In that regard, the Practice hereby grants to PE a non-exclusive, royalty-free, fully paid-up, perpetual, irrevocable, worldwide and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, exploit, sell, commercialize, and display any information, material or work product (other than the Practice’s Information that has not been De-Identified) the Practice provides or uploads to PE’s website or the Services. The Practice agrees that PE may use, disclose, market, license, and sell such information and works, including derivative products, without restriction.  This includes, for example, custom templates that the Practice creates using the Services, and information (other than the Practice’s Information that has not been De-Identified) that the Practice contributes to forums, discussion groups and the like. The Practice may provide content or material to this site by participating in forums, discussion groups and the like, or by using the site to create custom templates and the like.  Furthermore, the Practice agrees that PE may use, disclose, market, license and sell such material or content, and that the Practice has no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof.  The Practice warrants and agrees that any material the Practice provides will not infringe or otherwise violate the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law.
      1. PE may De-Identify (as defined below) the Practice’s Information, and use, exploit, license, commercialize, and disclose De-Identified Information for any purpose whatsoever, including as provided by Section 11(c) and Section 11(c)(iii).
      2. Without limiting the provisions of Section 11(c), the Practice agrees that PE may provide De-Identified Health Information and other information (including The Practice’s Personal Information and information concerning the Practice) to any medical group, independent practice association of physicians, health plan or other organization with which the Practice has a contract to provide medical services, or to whose members or enrollees the Practice provides medical services. Such information may identify the Practice or its members, owners or employees, but will not identify any individual to whom the Practice provides services.  Such information may include, without limitation, aggregated data concerning the Practice’s patients, diagnoses, procedures, orders and the like.
      3. For purposes of this Agreement, the following terms shall have the following meanings:
        1. The term “De-Identified Health Information” means health information that has been de-identified in accordance with the provisions of the Privacy Rule;
        2. The term, “De-Identified Information” means De-Identified Health Information and De-Identified Personal Information.
        3. The term “De-Identified Personal Information” means Personal Information from which all identifiers that could reasonably be anticipated to identify an individual by an anticipated recipient – such an individual’s name, contact information, or government identifiers – have been removed.
        4. The term “De-Identify,” means (i) with respect to Personal Information, to make such information into De-Identified Personal Information, and (ii) with respect to health information, means to make such health information into De-Identified Health Information.
        5. The term “Personal Information” means information that includes an individual’s name, contact information, government identifiers, or includes identifiers that could reasonably be anticipated to identify an individual personally by an anticipated recipient.
        6. The term “Practice’s Health Information” means Protected Health Information that the Practice or its Workforce inputs or uploads onto the Services, or that PE receives on behalf of the Practice from its patients, authorized service providers, or PE’s third party partners pursuant to this Agreement.
        7. The term “Practice’s Information” means information that the Practice or its Workforce enters or uploads onto the Services, including the Practice’s Personal Information and the Practice’s Health Information.
        8. The term “Practice’s Personal Information” means Personal Information that the Practice or its Workforce enters or uploads onto the Services.
        9. The term “Workforce” means the Practice’s owners, employees, personnel, volunteers, trainees, subcontractors, vendors, and other persons whose conduct, in the performance of work for the Practice, is under the direct control of the Practice, whether or not they are paid by the Practice.
    4. Assignment and Sublicense. Neither Party shall assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided; however, that PE shall have the ability, without the Practice’s consent, to subcontract or delegate all or part of the Services to subcontractors (collectively, the “Subcontractors”). Furthermore, the Practice acknowledges and agrees that the Services may not be sublicensed or otherwise transferred voluntarily or by operation of law to any third party. Any attempted assignment, license, sublicense or transfer by the Practice, whether voluntary or involuntary, shall be void and shall be grounds for immediate termination of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties hereto.
    5. Governing Law and Venue. This Agreement and the rights of the parties hereto shall be governed by the laws of the State of Texas without regard to principles of conflict of laws.  In the event of any litigation arising out of, or relating to, this Agreement or the breach thereof, the venue for any such action shall be in the State or Federal courts located in Collin or Denton County, Texas.
    6. Severability; Captions. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto.  The captions of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.
    7. Force Majeure. Neither Party shall be liable for damage due to any cause beyond its control, including, without limitation, acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, fire, sabotage, war, embargo or acts or omissions of the other Party caused by any of such events.
    8. Compliance with Laws. The Practice shall comply with all applicable laws and regulations, including, but not limited to, those laws and regulations governing its use of the Services. PE shall use reasonable efforts to comply with applicable laws and regulations in its performance of this Agreement and the provision of the Services.
    9. Notices. No notice or other communication shall be deemed given unless sent in any of the manners, and to the persons, as specified in this paragraph.  All notices and other communications hereunder shall be in writing and shall be deemed given: (a) upon receipt if delivered personally (unless subject to clause (b) or if mailed by registered or certified mail receipt requested, postage prepaid; (c) at noon on the business day after dispatch if sent by a nationally recognized overnight courier, to the address below:
        1. If to PE:
          Practice EHR LLC
          6136 Frisco Square Blvd
          Suite 400
          Frisco, Texas 75034
          Attention: Mr. Khurshid Mughal

          If to the Practice:
          To the address provided by the Practice during its initial trial user account registration process, and if no such initial trial user account registration occurred, then the Practice’s address as reflected in PE’s books and records.
    10. Publicity. The Practice acknowledges and agrees PE may identify the Practice as a client in its client listings, web sites, and other promotional materials.  In addition, PE may issue press releases regarding the parties’ relationship under this Agreement.  At PE’s request, the Practice agrees to provide PE with a jpeg file containing its corporate name and logo. the Practice hereby gives permission and grants PE the license and right to use the logo for the purposes set forth in this Agreement and in its communications with third parties.
    11. Entire Agreement. This Agreement constitutes the entire agreement between PE and the Practice pertaining to the subject matter hereof and supersedes all proposals or prior and contemporaneous agreements or understandings of the parties regarding such matter.
    12. Authority. The person signing below represents and warrants that he or she has authority to enter into this Agreement on behalf of his or her organization and bind such organization to the terms of this Agreement.