Terms & Conditions
Version Date: May 1, 2018
The Software licensed under the License Order or License Agreement (“Agreement”) may include the Outcomes Based Electronic Research Database software (“OBERD”), and certain computerized databases collectively referred to herein as the “Specialized Registries” from Universal Research Solutions, LLC, a Delaware limited liability company (“URS”), which provides a common platform for the collection, reporting and analysis of patient-reported outcomes data, patient satisfaction data, and the provision of patient education modules. This document establishes the terms governing provision of these services. URS, Company, and End User (End User shall have the same meaning as “Client” as defined herein) are each a “Party” and, collectively, the “Parties.”
- Grant of License. URS hereby grants to Client, and the Client hereby accepts, a non-exclusive, non-transferrable, non-assignable license (“License”) for each Provider Unit, without the right to sub-license, except as otherwise provided in this Agreement, which will give Client the right to access and use OBERD remotely. URS also agrees to provide additional products and services as selected by Client and which are set forth in the Agreement, and subsequent signed orders, for each Provider Unit as hereinafter defined in subsection II(a)(i).
- Term of Agreement/Renewal. Unless otherwise stated in a signed License Order or Sales Order, the initial term of this Agreement is three (3) years from the Effective Date (“Initial Term”). Thereafter, this Agreement will automatically renew for successive one (1) year terms, unless either party notifies the other in writing of their intent to terminate this Agreement. A notice of termination must be given at least sixty (60) days before the end of the then current term of this Agreement.
- Early Cancellation of License. During the first twelve (12) months of this Agreement, licenses issued to each Provider Unit will be non-cancellable. After the initial twelve (12) months of the Initial Term of this Agreement, Licensee shall have the right to cancel any License for any Provider Unit, upon ninety (90) days’ advance written notice to URS.
II. USE OF OBERD
- Authorized Users. Each License authorizes the Client to permit one Provider Unit and certain Additional Designated Users to use OBERD in machine-readable form via an internet based link.
- “Provider Unit” is defined as a medical doctor, research professional, physician assistant, physical therapist, occupational therapist, nurse practitioner, or any other job classification in which the person sets independent appointments, all of whom are employed by Client.
- “Additional Designated User” is defined as each supporting staff member (medical assistants, nurses, fellows, and other office staff who do not maintain their own appointment schedule) employed by the Client. Client agrees to advise all Designated Users of their confidentiality obligations with respect to this Agreement, and ensure that such persons are bound by terms of confidentiality reasonably comparable to those imposed in this Agreement.
- Right to Use License is Personal. The rights granted to Client herein are rights that may be exercised solely by the Provider Units and the Additional Designated Users. Client shall not allow any other person, firm, or corporation to access or use or view OBERD, without URS’s prior consent.
- Unauthorized Use. The License granted pursuant to this Agreement does not authorize the Client or any Provider Unit or any Additional Designated User to access or use or view OBERD on any computer which is not owned, rented, or leased by the Client or a Provider Unit or an affiliate of Client; or to utilize OBERD for the direct or indirect use or benefit of any person or entity other than Client and the Provider Units.
- Prohibition on Assignment. Neither this Agreement nor OBERD may be assigned, licensed, sublicensed, or otherwise transferred (collectively, “transfer”) by the Client or any Provider Unit, or any Additional Designated User. Client shall not: (a) give, lease, license, sell, make available, or distribute all or any part of OBERD to any third party; (b) use OBERD to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; (c) copy OBERD onto any public or distributed network; (d) change any proprietary rights notices which appear in OBERD; (e) modify OBERD; or (f) reverse engineer OBERD. Client may only use the data it derives from OBERD for use in its business operations.
III. TRAINING AND SUPPORT SERVICES
- Training. URS will provide training to the Client during the implementation period. This training will be provided to each Provider Unit(s), individually or in groups, up to a maximum of two (2) training sessions. Training will be delivered remotely by means of secure interactive web application, unless otherwise agreed between URS and the Client.
- Support. URS will provide telephonic or secure online interactive technical support services during weekdays (defined as Monday through Friday, excluding standard national holidays in the United States) from 8AM to 5PM Central Standard Time, without additional charge. Initial inquiries by Client should be made direct to the Company. Response time will not exceed two (2) business days from the time of the inquiry. Additional after-hours support services will be available to a designated employee of the Client for business-critical issues.
IV. UPDATES AND MODIFICATIONS OF OBERD
URS will provide access to new versions, updates or upgrades (collectively, “upgrades”) of OBERD to Client without additional charge, promptly after commercial release. Upon delivery of OBERD, upgrades will become part of OBERD and will be subject to the provisions of this Agreement. Company will invoice Client for major modifications of OBERD that are made at Client’s request if those modifications extend beyond the planned evolution of OBERD’s current features. Major modifications requested by Client will be invoiced and paid in accordance with the fees set forth in the Agreement or subsequent signed orders, or as otherwise agreed.
V. INTELLECTUAL PROPERTY
- Ownership of OBERD. URS is the sole owner of all intellectual property, technology, designs, engineering specifications, copyrights, trademarks, service marks, patents, patent applications, software components or modules, enhancements or derivative works, source code, or the like, created by URS. URS is and shall be deemed the sole owner of all intellectual property rights to its Specialized Registries. In the event that Client develops any ideas, modifications, or enhancements to OBERD which URS incorporates in any fashion to OBERD and related, URS shall be the sole and exclusive owner of such ideas, modifications, and enhancements, except that Client is given an exclusive perpetual royalty-free license to use such ideas, modifications, and enhancements in their relevant medical field including, without limitation, the rights to reproduce, modify, perform publicly, display publicly, and transmit electronically or by any other means such ideas, modifications, and enhancements. Subject to the foregoing grant of the exclusive perpetual royalty-free license to Client, Client hereby irrevocably assigns to URS any of the foregoing created by Client, and agrees to assist URS, upon URS’s reasonable request, to secure or perfect any or all rights, at the sole cost and expense of URS. Nothing in this Section V shall provide Client with OBERD access beyond the scope and terms of this Agreement.
- Permission required to market OBERD. Any advertising or other materials prepared by Client which reference OBERD, any portion of OBERD, or any of the trademarks, service marks, patents, patent applications, intellectual property, source code, or any other rights of URS must be approved in writing by URS prior to such use.
- Obligation to notify of breach. Client agrees promptly to inform URS of any infringement, alleged infringement, misuse, misappropriation, theft, or breach of confidence that may come to Client’s attention regarding URS’s intellectual property rights.
VI. Ownership and Permissible Uses of Data
- Client is the owner of all Protected Health Information (“PHI”) submitted to, or added to, systems and databases owned by URS and licensed to Client.
- URS may aggregate the PHI with such information of other Clients of URS which URS has received or created in its capacity as a Business Associate of such other Clients in their capacity as Covered Entities, provided that the purpose of the aggregation is to provide Client or other Clients with data analyses relating to the health care operations of Client or other Clients; and
- URS may de-identify the PHI provided that URS satisfies the applicable provisions for de-identification under the Privacy Rule [including Section 164.514(a), (b) and (c)] and provides Client with written documentation as required by said provisions and as may be reasonably specified by Client. Any such de-identified information shall not constitute PHI and shall not be subject to the terms and conditions of the Business Associate Agreement. The parties agree that URS may aggregate and use de-identified PHI in order to facilitate or conduct beneficial studies that combine large, complex data sets from multiple sources and which will encourage comparative effectiveness studies, policy assessment, life sciences research and other endeavors. This may include making aggregated and de-identified PHI data sets available in reports accessible by third parties at URS’s sole discretion. The parties agree that URS may share the aggregated de-identified data with other clients of URS, the Company and other clients of the Company.
- Client will have the opportunity to access reports issued by URS or Company that may or may not involve benchmarking. In order to access these reports, Client must agree to these OBERD Terms.
- The Client agrees to participate in a collaboration with other Clients in which URS or Company will disclose Client’s participation and will benchmark Client’s de-identified PHI against the de-identified PHI of other Clients, either individually or in the aggregate.
VII. PROTECTION AND SECURITY OF CONFIDENTIAL INFORMATION
- Client’s Obligation of Confidentiality. The Client hereby warrants, covenants, and agrees to keep confidential and secret and not provide access, or otherwise make available, OBERD or “Other Information” related to OBERD, to any person, corporation, or entity, other than to each Provider Unit and each Additional Designated User, without URS’s prior consent. “Other Information” related to OBERD includes, but is not limited to, user manuals, flow charts, logic diagrams, screenshots of OBERD, and graphical user interfaces from OBERD. The terms of this Agreement shall also be considered confidential and Client shall hold the terms of this Agreement, including any pricing and terms of payment, in strict confidence. The obligation of confidentiality is perpetual and will survive the termination of this Agreement.
- Use of OBERD. OBERD is intended for use only by the Client for its business operations. Client hereby assumes full responsibility for assuring the appropriateness of using and relying upon OBERD. Client has determined that OBERD meets any software audit requirements that Client may have, and that the data center auditing standards referenced below likewise meet all Client current auditing requirements. Client agrees to establish protective measures that may be appropriate to safeguard the privacy of data collected by means of OBERD, to meet security requirements for the protection of passwords and networks used by Client, and to follow all ethical and Institutional Review Board requirements relevant to the collection of data. Client agrees that the data security measures employed by URS, described below, are reasonable and proper. Client is responsible for measures to protect data from loss from Client’s systems. URS will have no responsibility or liability for loss of data or any consequential or incidental damages arising from Client’s loss of data from its systems. The Client is responsible for determining the accuracy and adequacy of OBERD for use by Client.
- Client’s Ownership of its Proprietary Information. Client will, in the course of the relationship established by this Agreement, disclose to URS in confidence non-public information concerning patient treatment, finances, volume of business, methods, system, practices, plans, and other confidential or commercially valuable proprietary information (collectively, “Confidential Information”). URS acknowledges that Client shall at all times be and remain the owner of all Confidential Information disclosed by Client and that URS may use such Confidential Information only in furtherance of purposes and obligations of this Agreement. URS shall, consistent with the manner in which it protects its own Confidential Information, preserve the confidentiality of any such Confidential Information, including the existence and terms of this Agreement. URS shall not use for its own benefit, rely upon, or disclose in any form or format to third parties any Confidential Information of Client without Client’s prior written consent. URS shall ensure that any of its agents and representatives, including, but not limited to, subcontractors, that require Client’s Confidential Information to perform respective services for URS under this Agreement agree to the same restrictions and conditions that apply to URS with respect to such Confidential Information. The obligation of confidentiality is perpetual and will survive the termination of this Agreement.
- Publicity. URS is given the limited right to use Client’s name, symbols, trademarks, or service marks in advertising or promotional materials, solely for purposes of identifying Client as a customer of URS and/or a participant in a Specialized Registry.
VIII. DATA SECURITY
- Security measures. URS hosts its software and data in a secure environment managed by a third party, and guided by the ISO27002 standard for physical security (certified by a SOC 70 Type II audit). Data is incrementally backed up daily and fully backed up weekly, at minimum, with a four week retention period of backups. All Personally Identifiable Information stored by URS will be encrypted by AES256 or stronger. Client assumes responsibility for any additional backups which it desires to maintain at its own site. URS may alter these systems with comparable systems that permit URS’s compliance with its obligations under this Agreement without prior written notice to Client or Client’s prior approval.
- URS’s Obligation of Confidentiality. URS agrees not to use or further disclose any data acquired from, or provided by, Client other than as permitted by this Agreement in order to provide the services to Client, or as required by law, or as specified in the Business Associate Agreement (“BAA”) between Company and Client, or the BAA between Company and URS. Further, following expiration or termination of this Agreement, URS shall return to Client all data in its possession belonging to, or provided on behalf of, Client in a commercially reasonable format, and then URS shall destroy all tangible data remaining in its possession belonging to, or provided on behalf of, Client, and promptly certify to Client in writing of said destruction. In the event destruction of the data is not feasible, such infeasible destruction shall be communicated to Client and the obligations of non-disclosure imposed upon URS pursuant to this Agreement shall be extended indefinitely.
- HIPAA. URS will comply in all material respects with all federal and state mandated regulations, rules or orders applicable to privacy, security, and electronic transactions, including, without limitation, regulations promulgated under Title II Subtitle F of the Health Insurance Portability and Accountability Act (Public Law 104-191) (“HIPAA”) and any amendment thereto. URS will abide by the terms and conditions of the Business Associate Agreement attached hereto and incorporated herein as Exhibit B.
- URS Representations. URS represents that neither it, nor any individual or entity that owns or controls it, nor any officer or employee (i) is currently excluded, debarred, or otherwise ineligible to participate in the Federal Healthcare Programs; (ii) has been convicted of a criminal offense related to the provision of healthcare items or services; and (iii) is under investigation or otherwise aware of any circumstances which may result in such party being excluded from participation in the Federal Healthcare Programs. URS hereby agrees to immediately notify Client of any threatened, proposed, or actual exclusion from any federally funded healthcare program during the term of this Agreement.
URS warrants the following:
- Conforms to specifications. OBERD reasonably conforms to the specifications as described in any materials made available or delivered to Client. OBERD is free from any viruses at the time of delivery to the Client. URS shall perform daily virus scanning of its hosted hardware and software environment using commercially available virus protection software with the latest releases. Any malfunctions in OBERD of which URS is made aware will be immediately reported to Client and corrective actions will be immediately taken.
- Governmental compliance. URS will comply with all governmental laws, rules, regulations, orders, decrees, rulings, and other restrictions of any government, governmental agency, or court to which it is subject to in its performance of its obligations hereunder.
- Absence of litigation. There are no actions, suits, or proceedings, pending or threatened, which will have a material adverse effect on URS’s ability to fulfill its obligations under this Agreement;
- Notice of adverse action. URS will immediately notify Client if, during the term of this Agreement, URS becomes aware of any action, suit, or proceeding, pending or threatened, which is likely to have a material adverse effect on Client’s ability to use OBERD.
- Ownership. URS warrants that it is either (1) the owner of OBERD and of each and every component thereof, or (2) the recipient of a valid license thereto and that it has and will maintain the full power and authority to grant the intellectual property and other rights granted in this Agreement without the further consent of any third party. To URS’s present knowledge OBERD does not infringe upon any third-party patent, copyright, trademark, trade secret or other intellectual property right as of the Effective Date, and no third-party claim has been alleged against URS that OBERD infringes upon such third party’s intellectual property rights; however, certain third party copyrighted forms within OBERD may be subject to use limitations to which URS shall comply. Client acknowledges that third party copyright owners may have the right to consent to or otherwise restrict Client’s use of the owner’s intellectual property.
- System Downtime Event. Although the parties recognize that OBERD might experience system downtime events, URS will take all steps reasonably necessary to prevent them. A “System Downtime Event” shall mean any period of time during which OBERD is unavailable to be used in its normal manner by Client, or any Provider Unit. A System Downtime Event does not include a failure caused by a malfunction of Client’s equipment or Force Majeure. A System Downtime Event shall not include any failure of OBERD to be operational during any routine or scheduled maintenance period, provided however, any routine or scheduled maintenance period must be approved in advance by Client and it must occur between the hours of 11:00 p.m. and 6:00 a.m. Central Standard Time. Should System Downtime Events occur during any three (3) consecutive months during the term of this Agreement, Client shall have the right to terminate this Agreement upon the giving of sixty (60) days prior written notice to URS.
- EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE MATERIALS, GOODS OR SERVICES FURNISHED BY URS HEREUNDER OR IN CONNECTION HEREWITH, AND URS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
XI. INDEMNIFICATION BY URS
- URS shall indemnify, defend, and hold harmless Client from all damage, cost and expense with respect to any claim or suit brought against Client for any alleged infringement (such indemnity shall not apply to any claims or suits related solely to Client’s actions, omissions, or related to Client content).
- If a third party copyright owner of forms within OBERD restricts the usage of its intellectual property after the Effective Date hereof, URS shall use commercially reasonable efforts to secure necessary permissions. If those permissions cannot be obtained, then URS will attempt to modify OBERD so that it is non-infringing. If that is not possible, then URS will attempt to provide a reasonably comparable substitute (including installation and training) to ensure that Client suffers no cessation of access to OBERD or to a reasonably comparable substitute.
- If none of the steps detailed in subsection (b) are commercially reasonable, either party may terminate this Agreement without further liability, provided that URS shall refund to Client a pro-rated portion of all amounts paid for the period of time during which Client is unable to use the OBERD due to the alleged or actual infringement.
- URS’s indemnity obligation does not extend to any claim, loss, damage, suit, fee, judgment, cost, or expense arising out of, or relating to any claim that OBERD — when used in combination with and only when used in combination with any Client and/or third-party software or services — infringes or violates any patent, copyright, or trademark, of any third party, or constitutes a misappropriation of any third party’s trade secret.
- General Liability. URS shall maintain, at no cost to Client and from carriers reasonably acceptable to Client: (i) broad form comprehensive general liability (including coverage for completed operations, contractual liability and errors and omissions) with minimum limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate; (ii) workers’ compensation insurance with coverages no less than required by applicable state law; and (iii) employers’ liability insurance, with minimum limits of One Million Dollars ($1,000,000) per accident or covered illness or disease. Upon request, Client (and any Affiliates designated by Client) shall be added as an additional named insured under the general liability policy, on a primary, non-contributory basis. Upon written request, URS shall provide Client with a certificate of insurance prior to execution of this Agreement, and upon request thereafter. Such insurance may only be cancelled, non-renewed or materially modified upon a minimum of thirty (30) days prior written notice to URS. URS shall notify Client immediately if any of its insurance coverage is cancelled, non-renewed or modified substantially in any way, and in such event, Client may terminate this Agreement without penalty. If any coverage is provided on a claims-made basis, then URS shall purchase “tail coverage” or continuously maintain for a minimum of five (5) years such claims-made insurance coverage for any events occurring during the term of this Agreement which may give rise to subsequent claims.
- Cyber Liability. If URS will maintain or transfer any Client or Affiliate data, URS shall carry cyber liability coverage with minimum limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate, including coverage for data reconstruction, financial damages resulting from the unauthorized disclosure of or general corruption or loss of personal data, identity theft monitoring services for individuals whose data was compromised, costs of incident response, investigation and follow-up, coverage for actions of rogue employees and the costs of defending or responding to (including damages and fines) any investigations or informational requests from any regulatory agency or other governmental or quasigovernmental agency responsible for the control and use of personal health information or other confidential information. If URS shall provide any hardware, software, or other products to Client or any Affiliate, URS’s general liability policy must include coverage for products liability. If URS shall in any manner supervise any Client or Affiliate employees, URS shall maintain employment practices liability insurance with minimum limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate.
XIII. LIMITATION OF LIABILITY
Except as expressly stated in this Agreement, URS shall not be liable to Client for any damages arising from delays, loss of use, corruption or loss of data, or other indirect, consequential, or special damages of any kind whatsoever, including, but not limited to, loss of anticipated profits or other economic loss in connection with, or arising directly or indirectly out of the existence, furnishing, functioning, or use of OBERD.
All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made, and received only when personally delivered or upon actual receipt of registered or certified mail, or reputable overnight courier service, postage or delivery charges prepaid, return receipt requested, addressed as set forth as follows:
If to Client:
As provided by Client
If to URS:
Universal Research Solutions, LLC
414 E Broadway
Columbia, MO 65201
Attn: Ali Hussam, Ph.D., CEO
with a copy, given in the manner prescribed above, to:
Walther, Antel & Stamper, P.C.
700 Cherry Street
Columbia, MO 65201
In addition, notice by mail shall be by airmail if posted outside of the continental United States. Any party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this section for the giving of notice.
Notwithstanding the foregoing, any request by a third party through legal process seeking Confidential Information shall be forwarded to Client or URS, as applicable, within three (3) business days of receipt. Such transmittal of the legal process request shall be by reputable overnight courier service only to the addresses provided in this Section XV.
XVI. FORCE MAJEURE
To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement. The term “Force Majeure” as used herein shall mean, without limitation, strikes, labor disturbances, widespread material shortages, acts of God, terrorism, natural disaster, or any cause reasonably beyond the control of a party. The obligations of the party not affected by force majeure shall similarly be suspended during any period of time that the other party is not able to perform as a result of force majeure.
In the event that any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
XIX. NO WAIVER
If either party should waive any breach by the other party of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach by the other party of the same or any other provision hereof.