LICENSE AGREEMENT
This Agreement is made by and between MDLand International (hereinafter called “MDLand”) and MD (hereinafter called “Provider” or “Licensee”)
The Provider, as the Licensee, indicates the acceptance of the Terms and Conditions of this Agreement prior to using the iClinic application.
1.0 GRANT OF LICENSE:
MDLand grants the Licensee non-exclusive, revocable, non-assignable limited rights to access and use the iClinic V12.3 application in accordance with the terms and conditions of this Agreement.
2.0 RESTRICTIONS:
Licensee may NOT: (a) use or copy iClinic except as provided in this Agreement; (b) transfer, rent, lease, lend, copy, modify, translate, sublicense, timeshare, or electronically transmit iClinic or any derivatives thereof to any third party; (c) modify, adapt, or translate iClinic, in whole or in part, except as provided in this Agreement; or (d) incorporate iClinic into another product for distribution.
3.0 DISTRIBUTION:
Permission to distribute iClinic – in whole, in part, or as part of a derivative work – outside of Licensee’s organization is not granted by this Agreement and is specifically prohibited.
4.0 ASSIGNMENT:
This Agreement, its rights, and its obligations for either party hereunder may, upon thirty (30) days written notice, be assigned, delegated, or transferred by operation of law or otherwise in connection with the total acquisition of the business or sale of a substantial amount of the assets of the business of either party to which this Agreement pertains. Upon thirty (30) days written notice to the Provider, MDLand may assign, delegate, or transfer by operation of law or otherwise to a third party of its choosing, any or all of its rights and obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the respective parties hereto, their successors, assignees, and representatives.
5.0 TERM:
This Agreement commences on the date that the Licensee first accepts it (the “Effective Date”) and continues until all the later of (i) the expiration or termination of all subscriptions and Order Forms hereunder in accordance with their terms and conditions, or (ii) one-year from the Effective Date (the “Subscription Term”). Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.
6.0 TERMINATION:
6.1 The parties agree that either may terminate this Agreement for any reason whatsoever, upon thirty (30) days written notice to the other party. Either party may terminate this Agreement immediately with written notice in the event of a material breach of the Agreement by the other. Upon the effective date of termination, MDLand shall cease processing and/or transmitting medical information on behalf of the Provider. MDLand will perform any tasks necessary to complete the final transmission or processing of medical information prior to the termination date.
6.2 Licensee will pay any unpaid fees accrued prior to the date of termination. In no event will termination relieve the Licensee of his/her obligation to pay any fees for the period prior to the effective date of termination.
6.3 Upon any termination of this Agreement, Licensee shall have the option (at its sole cost and expense) to receive a copy of the data stored in iClinic from MDLand in a reasonable form and format to be determined by MDLand. Licensee hereby acknowledges that if such option is not exercised within sixty (60) days of the effective date of termination, MDLand may destroy the data without further notice, in accordance with this Agreement.
6.4 Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will automatically terminate except for (a) rights of action accruing prior to such termination, (b) payment obligations, and (c) any obligations under this Agreement that expressly survive termination of this Agreement.
7.0 DATA RIGHTS, COLLECTION, REGULATORY COMPLIANCE:
7.1 Data Rights: Subject to the foregoing and following Sections, MDLand will return practice data upon request from the Provider, after termination of this Agreement, for a fee and in accordance with the mutually agreed upon MDLand Data Extraction Form signed by the Provider. Provider agrees that storage or caching of data on the iClinic application is not an infringement of any intellectual property rights of the Provider. The Provider agrees that it will not store data on the iClinic application that is subject to the rights of any Third parties without first obtaining all required authorizations and rights in writing from such Third Parties. Provider hereby grants MDLand a perpetual, worldwide, non-fee-bearing, exclusive (except as to the Provider), fully paid, irrevocable license to use, aggregate, de-identify, and disclose
practice data (including, without limitation, population health data, benchmarking, patient analysis, utilization tracking, and other administrative and quality improvement measures) to the extent permitted by applicable law. The Provider acknowledges that MDLand, as creator and developer of de-identified derived data, owns the copyright and all other intellectual property rights to such data derived from practice data.
7.2 Data Collection: The Provider acknowledges that MDLand will regularly receive and have access to all information entered into the Application including, without limitation, patient demographic information, clinical data, and practice information. This information may include Protected Health Information (“PHI”) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA; Pub. L. 104-191) and the regulations promulgated under HIPAA by the U.S. Department of Health and Human Services including 45 C.F.R. Part 160 and 45 C.F.R. Part 164.
7.3 Data Compliance and Consideration: Through its use of the iClinic application, the Provider agrees to provide MDLand with practice data including, without limitation, general patient demographics, clinical data, and other information. The Provider agrees to use its best efforts to input such information for all of its patients in a timely, accurate, and complete manner.
7.4 HIPAA: The operation of the iClinic application will involve the disclosure of PHI to MDLand; because of this, the Provider hereby engages Provider’s Business Associate under HIPAA and the accompanying HIPAA Regulations. The parties agree to execute and comply with the HIPAA business associate agreement (the “BAA”) attached hereto. MDLand agrees to not use or further disclose PHI except as permitted or required under this Agreement, the Minimum Necessary Standard under the HIPAA Regulations, and the HIPAA Business Associate Requirements. MDLand and its agents shall implement appropriate de-identification criteria for Protected
Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the regulations promulgated under HIPAA by the United States Department of Health and Human Services including, but not limited to, 45 C.F.R. Part 160 and 45 C.F.R. Part 164 (the “HIPAA Regulations”). Furthermore, the Provider acknowledges and agrees that de-identification information is not PHI and that MDLand and its agents may use such de-identified information for any lawful purpose.
7.5 Release of Information: Pursuant to a signed consent from the applicable patient, MDLand may release copies of data from the iClinic application including, without limitation, patient demographics, clinical data, and other information. Such data shall be delivered to the patient in accordance with the patient’s request (including, without limitation, through a mobile application) and in compliance with law.
7.6 Destruction of PHI: Upon termination of the Agreement between the parties, MDLand may destroy PHI after sixty (60) days following the effective date of termination. If destruction of PHI is not feasible, MDLand should continue to protect PHI as required by federal law.
7.7 Future and Compliance with Laws: Each party shall be responsible for ensuring that it complies with all applicable laws in connection with this Agreement including, without limitation, reasonably cooperating with court orders. If any laws or regulations applicable to this Agreement including, without limitation, HIPAA, are hereafter changed/modified/added so as to be required during the term of this Agreement, an amendment/modification/change to the terms and conditions of Agreement shall be made in order to comply with such law change/modification. The Parties shall cooperate with one another in modifying/amending this agreement, if necessary, to comply with such change/modification.
7.8 Assistance in Compliance Reviews: MDLand agrees to reasonably cooperate with Provider in responding to any governmental or administrative body compliance or audit review relating to MDLand’s provision of the iClinic application for reasonable fees.
8.0 OWNERSHIP & COPYRIGHT:
Title, ownership rights, and intellectual property rights in and to iClinic, and all copies thereof, shall remain with MDLand and/or its licensors. MDLand and iClinic are copyrighted and protected by United States copyright laws and international treaty provisions. The Licensee shall have no ownership or any other rights, title, or interest in iClinic or in any other intellectual property in connection with any of the services provided pursuant to this Agreement. Licensee shall not copy, reproduce, modify, or create derivative work, collective work, or compilation of iClinic and may not reverse engineer, decompile, or otherwise attempt to extract the iClinic code or any part thereof. Licensee shall not access or use iClinic for any purpose other than as intended or described in this Agreement. Licensee shall not remove any
copyright or ownership notice from MDLand, iClinic, or any documentation or materials derived from MDLand.
iClinic, in its various forms, is a compilation of information gathered by MDLand. iClinic contains a large body of information that is public knowledge; but at the same time, it represents a substantial creative compilation effort. Accordingly, it enjoys the same copyright protection as other reference works, such as dictionaries, that contain a compilation effort.
9.0 LIMITED WARRANTY:
MDLand warrants that the iClinic application shall perform in a commercially reasonable manner for thirty (30) days following the Effective Date (the “Warranty Period”). In all events, MDLand’s warranties and representations are limited to the iClinic application, and solely for the Warranty Period. If MDLand receives written notification from Licensee of defects in materials or workmanship during the Warranty
Period, MDLand shall make a reasonable determination regarding the defect and replace the iClinic application, or, if replacement is not commercially reasonable, MDLand may in its sole discretion, terminate the Agreement. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
10.0 NO OTHER WARRANTIES:
EXCEPT FOR THE FOREGOING LIMITED WARRANTY, MDLAND MAKES NO REPRESENTATION OR WARRANTY THAT ICLINIC OR THE ACCOMPANYING DOCUMENTATION ARE “ERROR-FREE” OR THAT ICLINIC OR THE ACCOMPANYING DOCUMENTATION MEET THE LICENSEE’S PARTICULAR STANDARDS, REQUIREMENTS, OR NEEDS. THE SERVICES, INCLUDING THE ICLINIC APPLICATION, ARE BEING PROVIDED TO LICENSEE IN “AS IS” CONDITION AND MDLAND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS (EXPRESSED OR IMPLIED) INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR WARRANTY OF NON-INFRINGEMENT. ALL OTHER IMPLIED TERMS AND CONDITIONS ARE EXCLUDED.
11.0 LIMITATION OF LIABILITY:
The entire and exclusive liability and remedy for breach of the limited warranty shall be limited to replacement of defective media or documentation and shall not include or extend to any claim for damages or the right to recover any other damages including, but not limited to: loss of profit, data, use of the software, special/incidental/consequential damages, or other similar claims. This limitation applies even if MDLand has been specifically advised of the possibility of such damages. In the event of system malfunction, for whatever reason(s), or inability to access the computer system, MDLand shall not be liable for inaccuracy, miscalculation, damage, or loss to any client data entered into the computer system. However, MDLand will exercise its best efforts to minimize the possibility of such damage or loss of
Provider data by use of regular backup procedures.
LIABILITY OF MDLAND AND ITS AGENTS FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE UNDER THIS AGREEMENT FOR THE THREE (3) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL MDLAND OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THESE DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE ICLINIC APPLICATION, EVEN IF MDLAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MDLAND IS NOT RESPONSIBLE FOR ANY IMPROPER OR ILLEGAL USE THE PROVIDER MAKES OF ICLINIC.
12.0 ENTIRE AGREEMENT:
This Agreement represents the complete agreement between the parties relating to this license for iClinic and supersedes all prior agreements, communications, proposals, and representations between the parties and prevails over any conflicting or additional terms and conditions of any quote, order, acknowledgment or similar communication. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
The then-current terms and conditions of this Agreement shall be available through iClinic. Upon any change, update, addition, or removal to the terms and conditions, MDLand shall post the updated terms and conditions through iClinic and provide notice to Licensee. By using iClinic after MDLand has updated the terms and conditions, Licensee is agreeing to all the updated terms and conditions. In addition, certain services and/or features may be subject to additional terms and conditions of use. By using such services or features, or any part thereof, you agree to be bound by the additional terms and conditions of use applicable to such services or features. In the event that any of the additional terms and conditions of use governing such services or features conflict with this Agreement, the additional terms and conditions will govern.
13.0 GOVERNMENT RESTRICTED RIGHTS:
iClinic is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in sub-paragraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as applicable. Manufacturer is MDLand International, 15 East 32nd Street, 2nd Floor, New York, NY 10016.
14.0 DISPUTE RESOLUTION:
In the event that litigation is instituted between the parties in connection with this agreement, the judgment thereof shall include a reasonable sum to be paid to the prevailing party for and on account of attorney’s fees and costs incurred in such litigation. Any dispute under this agreement shall be submitted to binding arbitration in the city of New York, under the rules of the American Arbitration Association.
15.0 GENERAL:
15.1 This Agreement is governed and interpreted in accordance with the laws of the State of New York, USA, without giving effect to conflict of law rules. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
15.2 Notwithstanding any applicable statute of limitation under applicable law, Licensee agrees that it shall not institute any claim or action relating to this Agreement or any services provided or related to the iClinic application more than one (1) year after the cause of action has arisen.
15.3 MDLand may modify the iClinic application at any time and MDLand shall not be liable to Licensee or any third party for any such modification or update. Unscheduled repairs and maintenance, including, without limitation, remote patches or updates to the application may temporarily degrade the quality of services or result in a partial or complete outage of the services and/or unavailability of the iClinic application.
15.4 The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party hereto.
16.0 FEE AND PAYMENT:
16.1 The Licensee agrees to pay all fees specified in Order Forms. (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable. Licensee further agrees to pay the implementation and training fee in full at the time when contract is signed. The subscription fee will be charged on the date when the account is live after the implementation.
16.2 The Licensee will provide MDLand with valid and updated credit card information, or with a valid document reasonably acceptable to MDLand. If credit card information is provided, Licensee authorizes MDLand to charge such credit card for all Purchased/Ordered Services listed in the Order Form, and Licensee agrees to sign additional Automated Clearing House (ACH) Authorization Form(s) MDLand may request from time to time. Such charges shall be made in advance. If the Order Form specifies payment will be a method other than a credit card, MDLand will invoice the Licensee in advance. Licensee is responsible for providing complete, accurate billing and contact information to MDLand and notifying MDLand of any changes to such information.
16.3 If any invoiced amount is not received by MDLand by the due date, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month. A $30 service fee is assessed for each returned check.
16.4 If any amount owed by the Licensee is thirty (30) or more days overdue MDLand may, without limiting its other rights and remedies, suspend or terminate services (including without limitation the access to iClinic) to Licensee until such amounts are paid in full.
16.5 MDLand reserves the right to adjust pricing or fees for its service or any components thereof in any manner and at any time at its own sole discretion upon thirty (30) days written notice to the Licensee or Provider.
16.6 MDLand reserves the right to pass-through any third-party fees or charges based on the costs involved.
16.7 Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature. Licensee is responsible for paying all tax associated purchases. If MDLand has the legal obligation to pay or collect taxes for which the Licensee is responsible, MDLand will invoice the Licensee and the Licensee will pay that amount unless the Licensee provides MDLand with a valid tax exemption certificate authorized by the appropriate taxing authority.
17.0 TRAINING:
So that MDLand can train the Licensee and other users effectively, the Licensee agrees to at least one day of training during which, the Licensee will close his/her office for four (4) hours and will reduce patient volume by 50% for the subsequent four (4) hours.
18.0 CONFIDENTIALITY:
As used in this Section, “Confidential Information” means any non-public information of the other party concerning, but not limited to information regarding the customers, patients, software, services, methodologies, source code, know-how or trade secrets, methods, processes or procedures, product plans, pricing, marketing and sales information, customer lists, or any other confidential, financial or business information of the other party, which it learns during the course of its performance of this Agreement. Each party agrees to use at least the same degree of care with regard to the other party’s Confidential Information as such party employs with respect to its own Confidential Information, but in no case less than a reasonable standard of care to maintain confidentiality. Except as otherwise expressly permitted in this Agreement, each party agrees that it shall not disclose to any third party, any Confidential Information of the other party without the prior written consent of such other party unless the Confidential Information (1) becomes generally available to the public other than as a result of disclosure by the receiving party, or (2) was already generally available to the public at the time or receipt of the Confidential Information from the disclosing party. If a party is required by a court or government agency to disclose the other party’s Confidential Information, the disclosing party shall provide a minimum of ten (10) days’ notice to the other party before making such a disclosure. The terms of this Section shall survive the termination or expiration of this Agreement.
19.0 FORCE MAJEURE:
Except for Licensee’s payment obligations, neither party shall be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control.
20.0 MESSAGING POLICY:
MDLand offers an SMS messaging service in partner with Plivo short codes. Patients can opt-in to our services by texting “MDLAND” to 635263. Patients may choose to opt-in to our SMS messaging service at their own discretion, and you may opt-out at any time. You can communicate with your patients via SMS for the purposes of health alerts and notifications. Participating carriers include: AT&T, Boost Mobile, T-Mobile, Metro PCS, Verizon Wireless, Sprint, U.S. Cellular, Nextel & Virgin Mobile. Carriers are not liable for delayed or undelivered messages. T-Mobile is not liable for delayed or undelivered messages. As always, message and data rates may apply. Patients will receive messages at varied frequencies, dependent on when the provider chooses to send messages for the purposes of health alerts or notifications. If patients have any questions about their text plan or data plan, they can contact their wireless provider. Patients can cancel the SMS service at any time. To cancel, text “STOP” to 635263. We will respond with a single SMS message to confirm that the patient has been unsubscribed. After this, the patient will no longer receive SMS messages from us. Patients may, at any time, text “HELP” to 635263 for a brief help message. We will respond with instructions on how to use our service as well as how to unsubscribe. You may also contact MDLand support at: (212) 363-8000 or email us at support@mdland.com. You can view our privacy policy at https://www.mdland.com/privacy-policy.
21.0 SURVIVAL
No termination or expiration of this Agreement affects or impairs any obligations, duties, indemnities, and liabilities of either party that, by their nature, continue beyond termination, or the rights of MDLand relating to any unpaid obligations. Such obligations, duties, indemnities, and liabilities including, without limitation, Sections 7.1, 7.2, 8, 11, and 14 shall not terminate or expire, but rather survive such termination or expiration and continue in full force and effect until the longer of (i) such time as all the obligations have been paid in full or (ii) such time as is expressly provided in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date and the person signing below represents that he or she is duly authorized to sign for and on behalf of the respective party.
Further, the party signing below represents that he or she has the following relationship or position with Licensee:
o President o Owner o Other _________________
<LICENSEE NAME> MDLAND INTERNATIONAL
By: _________________
Title: _________________
Date: _________________