1.1 Ikonnect Responsibilities.
Subject to the terms and conditions of this Agreement and during the Term hereof:
1.1.1 Ikonnect will provide Customer with the Solution as more fully described on the Ikonnect website and customer portal).
1.1.2 Ikonnect will provide assistance with the installation of the Solution as appropriate for the number of Users specified in Customer Portal.
1.1.3 Ikonnect will provide training and support regarding the use and operation of the Solution, to Customer and Customer’s Users, as necessary.
1.1.4 Upon the reasonable written request of Customer, Ikonnect shall report on the current status of the Customer’s utilization of the Solution with utilization metrics to be agreed to by the parties.
1.1.5 Ikonnect covenants that Customer shall be provided with access to the Solution at least 95% of the 24 hours per day, seven days a week, excluding scheduled maintenance time (“Uptime Commitment”). Scheduled maintenance shall be performed with reasonable advance notice.
1.2 Customer Responsibilities. In order to ensure the proper implementation and operation of the Hosted Services, Customer shall:
1.2.1 Promptly report to Ikonnect problems with Solution which cannot be resolved by Customer personnel.
1.2.2 Test all functionality of the Solution as part of the implementation process and periodically thereafter, to verify proper functioning; and
1.2.3 Designate qualified personnel sufficient to manage Customer’s receipt and responses to patient data, and to be the primary point of contact for Ikonnect.
1.2.4 Integrate the Solution with Customer’s information technology systems.
1.3 Ikonnect, its directors, officers, principals, employees, contractors and agents do not provide medical services, clinical assessment or care management services, or recommend or endorse any specific tests, physicians, products, procedures, opinions, or other medical or medical related information or content that may be contained in, linked to, or communicated through the Solution.
ARTICLE 2. DOCUMENTATION
Ikonnect shall provide Customer with such Documentation relating to the Solution as shall be reasonably necessary to enable Customer and Users to access and utilize the Solution.
ARTICLE 3. TERM AND TERMINATION
This Agreement shall remain in force for a period of one (1) year (the “Term”) from the Effective Date, and shall automatically renew for twelve (12) month periods (“Renewal Terms”) thereafter unless otherwise terminated as provided herein.
3.1 Termination without Cause. After the Initial Term, either party will have the right to terminate this Agreement without cause upon sixty (60) days’ prior written notice, provided that no termination by Customer shall limit Customer’s payment obligations hereunder.
3.2 Termination for Breach. If either party materially defaults in the performance of any provision of this Agreement, including failure or unreasonable delay in performance hereunder, or Customer materially breaches Ikonnect’s Privacy Policy, then the non-defaulting party may give written notice to the defaulting party that if the default is not cured within thirty (30) days the Agreement will be terminated. Either party may also terminate this Agreement immediately for breach of Confidentiality or privacy and security requirements under Applicable Law or hereunder.
3.3 Termination for Bankruptcy and Related Events. Either party may immediately terminate this Agreement upon written notice to the other party: (i) upon the institution by or against such other party of receivership or bankruptcy proceedings or any other proceedings for the settlement of such party’s debts, (ii) upon such other party’s making an assignment for the benefit of creditors, or (iii) upon such other party’s dissolution or ceasing to do business.
3.4 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party in the event of: (i) Suspension or termination of Customer’s required license(s) to provide its services in any State; (ii) Willful violation of Ikonnect’s Documentation; (iii) Customer is indicted, charged, convicted or pleads guilty or nolo contendere for any crime involving fraud, falsehood, dishonesty or moral turpitude, or to a felony; (iv) Customer is suspended or terminated or otherwise sanctioned by any Medicare, Medicaid or government health program; (v) Customer is disbarred or excluded by any state or federal agency; (vi) Customer attempts or perpetrates a material fraud upon Ikonnect or engages in conduct which, in the discretion of Ikonnect, is materially harmful to Ikonnect’s business and operations; or (vii) Customer has a conflict of interest which may be adverse to Ikonnect and which cannot be resolved to Ikonnect’s satisfaction.
3.5 Effect of Termination. In the event that Customer terminates this Agreement prior to the expiration of the Term or any Renewal Term, then Ikonnect shall retain all fees it has received prior to such termination, and Customer will pay Ikonnect for all documented costs and expenses incurred up to date of termination and for the purposes of
implementing termination. Upon any termination or expiration of this Agreement, all of Customer’s rights and licenses with respect to the Solution will cease, Customer shall return any and all Link+ devices and Ikonnect shall terminate Customer’s access to the Solution.
3.5.1 Within thirty (30) days from termination of the Agreement, all confidential information provided by one Party to the other hereunder shall be returned to the disclosing Party or destroyed with certificate of destruction.
3.5.2 Upon termination of the Agreement, the Ikonnect shall continue to store Patient Data for a period not to exceed ninety (90) days from the date of termination, unless otherwise required by law. All costs associated with the transfer or ongoing storage of Patient Data will be paid by Customer.
3.6 Election of Remedies. The election to terminate this Agreement shall not affect or limit the non-breaching Party’s rights to pursue other contractual, legal or equitable
remedies.
3.7. You can return an item you bought from the Ikonnect only within 7 calendar days after the day you received it. We’ll refund the payment method that you paid minus a restocking fee of 50% and minus the supplementary costs resulting from your choice of a type of delivery.
ARTICLE 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Performance of the Solution; Warranty.
Ikonnect warrants that the Solution shall operate substantially in accordance with the Documentation for the Term of this Agreement (the “Warranty Period”). If during the Warranty Period the Solution does not operate in accordance with the Documentation, Customer shall promptly notify Ikonnect in writing, of any claimed deficiency and provide Ikonnect with information sufficient to permit Ikonnect to assess and, if appropriate, remedy any the deficiency. If a deficiency exists which breaches this warranty, Ikonnect shall, within thirty (30) days and in its sole discretion, either: (i) correct the deficiency so that the Solution operates substantially in accordance with the Documentation; or (ii) replace the Link +.
4.2 Business Continuity. Ikonnect represents and warrants that it has, and at all times during the Term of this Agreement will continue to have in full force and effect, business continuity and disaster recovery plans and procedures that will enable it to use best efforts to continue providing Customer access to and use of the Solution, and to preserve PHI, as defined herein, in the event of a disaster.
4.3 WARRANTY LIMITATIONS. EXCEPT AS OTHERWISE SET FORTH IN THIS ARTICLE 4, THE SOLUTION IS PROVIDED “AS IS,” AND “WITH ALL FAULTS.” EXCEPT FOR THOSE WARRANTIES THAT ARE NOT EXCLUDABLE BY LAW OR AS OTHERWISE SET FORTH IN THIS ARTICLE 4. IKONNECT MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE, RESULTS, SECURITY, NONINFRINGEMENT, MERCHANTABILITY, INTEGRATION, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY
PARTICULAR PURPOSE OF THE HOSTED SERVICES OR THE LICENSED SOFTWARE. IKONNECT DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
ARTICLE 5. PATIENT INFORMATION
5.1 Patient Data and Patient Data License.
5.1.1. Ikonnect shall provide Customer with access to Patient Data through the Solution. Ikonnect shall not be responsible for the integrity or input of Patient Data into the Solution.
5.1.2. Customer hereby grants Ikonnect, and shall cause the Patients that utilize the Solution and that provide Patient Data to execute a HIPAA compliant authorization form that grants to Ikonnect, a non-exclusive, revocable, nontransferable, worldwide, royalty free, fully paid up right and license to (a) use the Patient Data for the purposes of (i) providing the Hosted Services and to modify the formatting of the Patient Data for purposes thereof, and (ii) to deidentify, derive and generate Ikonnect Data therefrom and to use the Ikonnect Data (to the extent that any rights of Customer or Patients are incorporated into Ikonnect Data) for any and all purposes as determined by Ikonnect, and (b) upload the Patient Data to its system and store such Patient Data in its databases for purposes of providing Customer with access to such Patient Data.
5.2 Protected Health Information. The parties agree that the use of the Solution includes an exchange of Protected Health Information or “PHI” and to the terms of the Business Associate Agreement incorporated herein by reference.
ARTICLE 6. INDEMNITY AND INSURANCE
6.1 Indemnity. Customer shall indemnify, defend and hold harmless the Ikonnect and its officers, directors, trustees, and employees from and against any third party claims, demands, or causes of action, or any financial losses or costs related to, based on or resulting from (a) any negligent act or omission or unlawful misconduct of Customer, resulting in any loss of or damage to any property or injury or death of any person relating to the improper use of the Solution, or improper use of Patient Data accessed through the Solution; (b) any lost or damaged Equipment; or (c) any material breach of this Agreement by Customer.
6.2 Insurance. Each party agrees to obtain and maintain for the Term and any Renewal Term such general liability, cyberliability, and professional liability insurance coverages as would be appropriate for an entity of its size and risk profile and the obligations hereunder. Evidence of such coverage shall be made available upon request.
ARTICLE 7. LIMITATION OF LIABILITY
EXCEPT AS PROVIDED HEREIN AND EXCEPT AS SET FORTH IN THE BUSINESS ASSOCIATE AGREEMENT ATTACHED HERETO, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMERS’ USE OF THE HOSTED SERVICES, THE LICENSED SOFTWARE, THE EQUIPMENT, THE PATIENT DATA, OR THE GENERATION OR USE OF CUSTOMER DATA, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED. EXCEPT AS PROVIDED IN SECTION 9.2, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE A SUM EQUAL TO THE AGGREGATE PAYMENTS MADE BY CUSTOMER TO IKONNECT HEREUNDER DURING THE TERM.
ARTICLE 8. FEES; EXPENSES; TAXES
8.1 Fees. In consideration of the Hosted Services, Licensed Software and Equipment to be provided and the License granted hereunder, Customer shall pay to the Ikonnect the fees as set forth in the Pricing Information sheet.
8.2 Renewals. The parties agree that if Ikonnect revises the Fees that would be applicable for a Renewal Term, Ikonnect agrees to provide written notice to Customer at least thirty (30) days prior to the Renewal Term should the Ikonnect decide to increase its Fees.
8.3 Payment. As consideration for the Solution provided to Customer hereunder, Customer shall pay Ikonnect the amount due, within thirty (30) days of an invoice for the applicable Fees.
8.4 Taxes. Ikonnect’s invoices shall include and Customer shall pay all federal, state, local or other sales or use taxes that may be imposed by law upon Ikonnect or Customer, with respect to the Solution and any material, supplies, equipment or activities furnished in the performance of the Solution and any Support other than taxes based upon the net income of Ikonnect (the “Taxes”).
ARTICLE 9. CONFIDENTIALITY
9.1 Confidential Information.
Each Party agrees to regard and preserve as confidential all information of a confidential nature related to the business and activities of the other Party, including, without limitation, the Solution, Documentation, and Patient Data. Each Party agrees to hold such information of the other Party in trust and confidence, and not to disclose such information to any Person, firm or enterprise, or use, directly or indirectly, any such information for its own benefit or the benefit of any other Person, unless authorized by the other Party in writing, and even then, to limit access to and disclosure of such confidential information to such Party’s employees on a “need to know” basis only.
Upon termination of this Agreement, each Party shall return, or certify to the destruction of, all confidential information, provided that each Party shall have the right to retain a
single copy of any confidential information of the other Party as it may reasonably require for archiving purposes. Information shall not be considered confidential to the extent, but only to the extent, that such information is: (i) already known to the receiving Party free of any restriction at the time it is received from the disclosing Party, (ii) subsequently obtained from an independent third party free of any restriction and without breach of this Agreement; (iii) is or becomes publicly available through no wrongful act of the receiving Party; or (iv) is independently developed by the receiving Party without reference to or knowledge of information which is confidential information of the disclosing Party. The receiving Party may disclose confidential information of the disclosing Party when required by applicable law or judicial process, but only after providing prompt notice to the disclosing Party of such request for confidential information, which notice shall include the receiving Party’s intent with respect to such request, and the opportunity for the disclosing Party to oppose such disclosure requirement.
9.2 Injunctive Relief. In addition to any other rights and remedies available to each Party hereunder or at law, the other Party acknowledges and agrees that due to the nature of the confidential information the confidentiality obligations hereunder are of a unique character and agrees that any breach of such obligations by such Party will result in irreparable and continuing damage to the other Party for which there will be no adequate remedy in damages. Notwithstanding anything to the contrary in this Agreement, each Party will be authorized and entitled to obtain injunctive relief, without the necessity of posting a bond even if otherwise normally required, and such further relief as may be proper from a court with competent jurisdiction.
ARTICLE 10. PROPRIETARY RIGHTS
10.1 Intellectual Property. Ikonnect owns and shall retain the exclusive right, title and ownership in and to all patents, inventions, copyrights, trade secrets, trademarks, upgrades, additions and modifications and other proprietary rights in and relating to the Solution, and Customer agrees that no title or ownership of or to any of the foregoing or proprietary rights therein are transferred or conveyed by this Agreement, except Customer’s limited rights to access and use the Solution pursuant to this Agreement. Ikonnect shall own all intellectual property rights to the formatting and presentation of the Patient Data. The Patient Data itself shall be the property of the patients and Customer except that Ikonnect shall have the right to deidentify and use deidentified data which shall be Ikonnect Data. Customer may not, and may not attempt to, copy, replicate, duplicate, create any derivative work from, decompile, disassemble or reverse engineer, the Link+ or any part of the Solution.
ARTICLE 11. MISCELLANEOUS PROVISIONS.
11.1 Notices. All notices required by this Agreement shall be in writing and sent to the Parties (and addresses) designated on page one of this Agreement, or to such other address as either Party may specify in writing.
11.2 Force Majeure. Neither Party shall be liable, or be deemed to be in default, to the other Party hereunder by reason or account of any delay or omission caused by epidemic, fire, power outages, action of the elements, strikes, lockouts, sabotage (except as caused by a Party’s employees or agents), labor disputes, governmental law, regulations, ordinances, order of a court of competent jurisdiction, executive decree or order, act of God or public enemy, war, riot, acts of terrorism, civil commotion, earthquake, flood, explosion, casualty, embargo or any other similar cause to the extent beyond the control of such Party (each, a “Force Majeure Event”).
11.3 Relationship of the Parties. The relationship of Ikonnect to Customer shall be that of an independent contractor. Nothing herein shall be construed to constitute the Parties as partners or joint venturers, or as employees or agents of the other. Except as expressly set forth herein, neither Party has any express or implied right or authority to assume or create any obligations on behalf or in the name of the other.
11.4 Non-Exclusivity. Ikonnect and Customer each acknowledge that this Agreement is non-exclusive and that Ikonnect reserves the right to engage in business with other Persons.
11.5 Modification; Assignment. This Agreement shall not be modified, changed or amended (“Amendment”), except by written agreement signed by authorized representatives of both Parties. This Agreement may not be transferred, sublicensed or assigned by either Party to any other Person without the express prior written consent of the other Party, except that this Agreement may be transferred or assigned in connection with a sale of all or substantially all of a Party’s assets or equity or change of control.
11.6 Successors and Assigns. All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their successors and permitted assigns.
11.7 Severability. Any provision of this Agreement which is prohibited by, or unlawful or unenforceable under, any applicable law of any jurisdiction will be ineffective as to such jurisdiction without affecting any other provision in this Agreement. To the full extent, however, that the provisions of such applicable law may be waived, they are hereby waived, to the end that this Agreement be deemed to be a valid and binding Agreement enforceable in accordance with its terms.
11.8 Publicity. The Ikonnect will have the right to include Customer’s name and/or product images on (i) marketing materials or (ii) any announcement required by applicable law that the Ikonnect may prepare or distribute.
11.9 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to any principles of conflict or choice of laws. The parties consent to the jurisdiction of the state and federal courts for the City of New York, Borough of Manhattan, and State of New York for the resolution of all disputes.
11.10 Waiver. No waiver of any right or remedy in respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy in respect of such an occurrence or event on any other occasion.
11.11 Integration. This Agreement and the BAA and Customer Portal incorporated herein, constitute the entire understanding of the Parties with respect to the subject matter of this
Agreement and supersedes all prior agreements, proposals or representations, written or oral, between the Parties relating to the subject matter of this Agreement.
11.12 Books and Records During the Term, any Renewal Term and for six years following the termination hereof, both parties shall maintain and make available upon proper request from authorities, this Agreement and any subcontracts pursuant hereto valued at $10,000 or more in any twelve month period, as well as all books, documents and records related thereto that are necessary to verify the nature and costs of the Hosted Services, Licensed Software and Equipment provided hereunder.
11.13 Survival of Provisions
Sections 1.3, 3.5, 3.6, 4.3, 5.2, Article 6, Article 7, Article 8, Article 9, Article 10 and Article 11 shall survive termination or expiration of this Agreement.
IN WITNESS WHEREOF, each of Customer and Ikonnect have caused this Agreement to be executed and delivered by its duly authorized representative as of the date first written above.