CydocLast Updated: August 5th, 2023
This Cydoc Terms of Service, together with any Cydoc order form entered by the parties (“Order Form”), collectively constitute a binding agreement (collectively, “Agreement”) between Cydoc Corporation, a Delaware corporation (“Company” “we” or “us”), and you and the legal entity of the health care provider you represent (collectively, “Customer,” “you” or “your”), and governs your use of the Cydoc Service.
By using the Cydoc Service, or by signing an Order for the Cydoc Service, you accept and agree to be bound by this Agreement. If you do not agree to the terms of this Agreement, you may not use the Cydoc Service.
If you accept this Agreement on behalf of a business entity, you agree to identify that entity on the Order Form, and you represent that you have the authority to represent the entity and create a legally binding contract. If you do not agree to this Agreement or have such authority, you may not use the Cydoc Service.
Background:
The Cydoc Service is a cloud-based platform that assists healthcare providers in accelerating the medical note writing process. The Cydoc Service allows an accountholder to generate a text note based on case-specific information (e.g., about a particular patient) that you provide or that you have asked a patient or their representative to provide through the Cydoc Service. Further terms regarding user accounts are set forth on the attached Exhibit A, User Accounts.
1. Definitions.
“Authorized User” means those healthcare professionals and healthcare managers working on behalf of Customer and authorized by Customer to have access to the Cydoc Service.
“Documentation” means Cydoc’s then-current instructions, user manuals, training materials, and other materials in written or electronic form relating to the Cydoc Service generally made available to its customers.
“Enhancements” means the following: minor updates, modifications, revisions and corresponding Documentation with respect to the Cydoc Service, including the addition of enhancements or improved performance made available by Cydoc; however, Enhancements do not include customizations or the addition of significant new features not originally included as part of the Cydoc Service.
“Maintenance Modifications” means bug fixes, patches, modifications or revisions that correct errors to the Cydoc Service.
“Access Credentials” means the name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify the identity and authorization to access and use the service.
“Cydoc Materials” means the software, systems, and any and all other information, data, documentation, and other content that are provided by or on behalf of Cydoc in connection with the Cydoc Service. For the avoidance of doubt, Cydoc Materials include Usage Data and any information, data or other content derived from Cydoc’s monitoring of your access to or use of the Cydoc Service, but do not include Your Data.
“Cydoc Service” means the Cydoc cloud-based platform that provides access to services for facilitating medical documentation which includes a user interface to enter and receive information, and backend databases, algorithms and other technology.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Usage Data” means non-personally identifiable data and information related to the operation and access of the Cydoc Service.
“Software” means the software that is provided to you under the Cydoc Service.
“Third Party Software” means the software of certain third parties included as part of the Cydoc Service. Customer understands and acknowledges that Cydoc is not the owner of Third Party Software.
“Your Data” means information, data and other content that you enter, or that one of your patients or their representatives enters at your request, for purposes of generating a particular instance of a text note (e.g., a case-specific text note) under the Cydoc Service, which may, at your discretion, include personally identifiable data.
“Template Data” means information, data and other content that you enter into any template creation user interface on the Cydoc Service for the purpose of specifying a particular template, questionnaire, form, knowledge graph, or other user interface for note generation under the Cydoc Service.
“Your Systems” means your information technology, including computers (and associated browsers), software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by you or through the use of a third-party service.
2 Access to the Cydoc Service.
2.1 Access and Use.
(a) Cydoc Service License. Subject to the terms and conditions of this Agreement, Cydoc grants you, during the term of this Agreement, the following nonexclusive, nontransferable, licenses to (i) use and permit Authorized Users to use, the Cydoc Service and all Enhancements and Maintenance Modifications provided by Cydoc during the term of this Agreement, solely for your internal business purposes, in accordance with the specifications set forth in any Documentation; and (ii) reproduce and use copies of the Documentation in conjunction with such permitted use of the Cydoc Service, Enhancements and Maintenance Modifications provided in Section 2.1(a)(i) above.
(b) License to Template Data. The Cydoc Service provides an area where you may choose to provide Cydoc with questions, sentences, phrases, and/or other user interface specifications that can be used to initiate the note generation process (for example, “Do you have chest pain?”). This data, which does not identify a person, is referred to as Template Data. If you submit or otherwise provide us any with Template Data, or other ideas, concepts or other feedback, you hereby irrevocably grant to us an unrestricted, worldwide, perpetual, sublicensable (through multiple tiers), royalty-free license to use, reproduce, display publicly, perform, publish, transmit, distribute and otherwise exploit such data in any medium and for any purpose, and you further agree that we are free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to us in accordance with the foregoing license grant. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding materials, ideas, concepts or know-how provided to us that you may have under any applicable law under any legal theory. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
2.2 Disclaimer. CYDOC IS NOT PROVIDING MEDICAL OR PROFESSIONAL ADVICE. THE CYDOC SERVICE PROVIDES A TOOL THAT ALLOWS YOU TO GENERATE YOUR OWN TEXT NOTES. YOU ARE SOLELY RESPONSIBLE, AND YOU SHALL RELY ON YOUR OWN PERSONNEL FOR (I) THE ACCURACY OF THE INFORMATION ENTERED TO THE CYDOC SERVICE, (II) OBTAINING ALL RIGHTS AND AUTHORIZATIONS NECESSARY TO USE SUCH INFORMATION UNDER THE CYDOC SERVICE, (III) ALL CONCLUSIONS AND RESULTS FROM YOUR USE OF THE CYDOC SERVICE, AND (IV) YOUR FAILURE TO IDENTIFY AND CORRECT ANY INACCURACIES AND/OR ERRORS IN THE CONTENT, RESULTS, OR OUTPUT OF THE CYDOC SERVICE.
2.3 Changes. Cydoc reserves the right, in its sole discretion, to make any changes to the Cydoc Service and Cydoc Materials that it deems necessary or useful to maintain or enhance the Cydoc Service generally or to comply with applicable law.
2.4 Suspension or Termination of Service . Cydoc may, directly or indirectly, suspend, terminate or otherwise deny access to or use of all or any part of the Cydoc Service or Cydoc Materials, without incurring any resulting obligation or liability, if: (a) Cydoc receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Cydoc to do so; or (b) Cydoc believes, in its reasonable discretion, that: (i) you have failed to comply with any material term of this Agreement, or accessed or used the Cydoc Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) you are, have been or are likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Cydoc Service; or (iii) this Agreement expires or is terminated. This Section 2.4 does not limit any of Cydoc’s other rights or remedies, whether at law, in equity or under this Agreement.
3 Use Restrictions:
3.1 You shall not, and shall not permit any third party to, access or use the Cydoc Service or Cydoc Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly authorizes: (a) copy, modify or create derivative works or improvements of the Cydoc Service or Cydoc Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Cydoc Service or Cydoc Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Cydoc Service or Cydoc Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Cydoc Service or Cydoc Materials or access or use the Cydoc Service or Cydoc Materials other through the use of your own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Cydoc Service, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (f) permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby; or (ii) prevent any access or use of the Cydoc Service; (g) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Cydoc Service; (h) remove, delete, alter or obscure any trademarks, warranties or disclaimers or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Cydoc Service or Cydoc Materials, including any copy thereof; (i) access or use the Cydoc Service or Cydoc Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable laws, rules or regulations; (j) access or use the Cydoc Service or Cydoc Materials for purposes of competitive analysis of the Cydoc Service or Cydoc Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Cydoc’s detriment or commercial disadvantage; (k) use the Cydoc Service on any third-party site in violation of the third party’s websites terms of use or privacy policy, or for the unauthorized collection of personally identifiable information; or (l) otherwise access or use the Cydoc Service or Cydoc Materials beyond the scope of the authorization granted under Section 2.1. You are responsible for all acts and omissions of your Authorized Users and all individuals who access the Cydoc Service through links or other access mechanisms you provide.
3.2 There may be only one Authorized User per account on the Cydoc Service. You may sign up for multiple accounts (and Authorized Users) through the user interface that Cydoc provides in its manager dashboard. Account sharing between users is not permitted. Each Authorized User shall be responsible for all activities that occur under the Authorized User’s account, including any acts or omissions. You shall promptly notify Cydoc of any unauthorized use of passwords or account or any other breach of security that is known or suspected by you.
4. Your Obligations.
4.1 Your Systems and Cooperation. You shall at all times during the term of this Agreement: (a) set up, maintain and operate in good repair all Your Systems on or through which the Cydoc Service is accessed or used; and (b) retain sole control over the operation, maintenance and management of, and all access to and use of, Your Systems, and sole responsibility for all access to and use of Cydoc Materials by any third party by or through Your Systems or any other means controlled by you, including any: (i) information, instructions or materials provided by you to the Cydoc Service or Cydoc; (ii) results obtained from any use of the Cydoc Service or Cydoc Materials; and (iii) conclusions, decisions or actions based on such use.
4.2 Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by Section 3, you shall immediately: (a) take all reasonable and lawful measures within your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Cydoc Service or Cydoc Materials; and (b) notify Cydoc of any such actual or threatened activity.
5. Security.
5.1 Your Control and Responsibility. You have and will retain sole responsibility for: (a) ensuring that you have all right and authority to provide any data in to the Cydoc Service; (b) all information, instructions and materials provided in connection with your use of the Cydoc Service; (c) Your Systems; (d) the security and use of your Access Credentials; and (e) all access to and use of the Cydoc Service and Cydoc Materials directly or indirectly by or through Your Systems, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) protect against any unauthorized access to or use of the Cydoc Service; (ii) use strong password creation and protection practices; and (iii) control the content and use of Your Data, such that the Cydoc Service is used for lawful purposes that comply with all applicable federal, state and foreign privacy and data protection Laws. Please report system availability or other system issues (security or otherwise) to Cydoc Support by emailing admin@cydoc.ai.
5.2 Compliance. The parties acknowledge that as part of the Cydoc Service provided by Cydoc, Cydoc may perform or assist in performing a function or activity on your behalf that involves the use and disclosure of Protected Health Information (“PHI”) (as defined in 45 C.F.R. 164.501). Given such access, and to the extent that you are a Covered Entity under HIPAA, the parties agree to enter into that Business Associate Addendum (“BAA”) attached hereto as Exhibit B. Customer is solely responsible for obtaining any consents, opt-ins, or authorizations required by law prior to sending any communications (e.g., emails or texts) to invite individuals to provide information to the Cydoc Service.
6. Installation
6.1 Cydoc will not provide installation services, since the Cydoc Service does not need to be installed. Cydoc is a cloud-based service accessible through a web browser on any device with an Internet connection including a desktop computer, laptop, tablet, phone, or other mobile device. Cydoc is not responsible for providing or managing any hardware, software or other devices through which the Cydoc Service is accessed.
7. Fees and Payment.
7.1 Fees and Payment. You shall pay Cydoc the fees set forth in each Order Form (“Fees”) in accordance with this Section 7. Unless otherwise specified in the applicable Order Form, Customer shall pay all Fees, as described on the Order Form for the applicable service tier, via credit card at the time of signup, in which case Customer’s credit card will be billed immediately or as otherwise indicated on the Order Form. If the Fees are recurring over designated time periods stated on an Order Form, then payment is due prior to the start of each subscription period, and the credit card on file will be charged at the start of each pay period. Customer shall make all payments hereunder in US dollars by credit card. If Customer fails to make any payment when due then, pursuant to Section 12, Cydoc may terminate this Agreement immediately and without liability or notice to Customer.
7.2 Auto-Renewal. Unless otherwise specified in the applicable Order Form, your credit card will be billed at signup. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) YOUR SUBSCRIPTION WILL AUTO-RENEW EVERY MONTH AT THE APPLICABLE TIER LEVEL, (B) CYDOC (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU FOR YOUR SELECTED SUBSCRIPTION, IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES, FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (C) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR UNTIL CYDOC SUSPENDS OR STOPS PROVIDING ACCESS TO THE CYDOC SERVICE OR SUBSCRIPTION IN ACCORDANCE WITH THESE TERMS. YOU MAY CANCEL YOUR SUBSCRIPTION ELECTRONICALLY VIA THE SUBSCRIPTION CANCELLATION USER INTERFACE PROVIDED ON THE CYDOC SERVICE. IF YOU CANCEL BEFORE THE EXPIRATION DATE OF YOUR CURRENT SUBSCRIPTION, YOU WILL NOT BE ENTITLED TO A REFUND OF ANY AMOUNTS THAT YOU HAVE ALREADY PAID, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
7.3 Taxes. All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use and excise taxes and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Cydoc’s income.
8. Intellectual Property Rights.
8.1 Cydoc Materials. All right, title and interest in and to the Cydoc Service and Cydoc Materials, including all Intellectual Property Rights therein, are and will remain with Cydoc and its suppliers. You have no right, license or authorization with respect to the Cydoc Service or any Cydoc Materials except as expressly set forth in Section 2.1, in each case subject to Section 3. All other rights in and to the Cydoc Service and Cydoc Materials are expressly reserved by Cydoc. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to Cydoc an assignment of all right, title and interest in and to the Usage Data, including all Intellectual Property Rights relating thereto. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Cydoc Service or Cydoc Materials, whether expressly, by implication, estoppel or otherwise.
8.2 Your Data. As between Cydoc and you, all Your Data shall belong to you, provided however that Cydoc is hereby expressly authorized to use Your Data to provide and improve the Cydoc Service.
8.3 Cydoc may use Customer’s name and/or its logo on Cydoc’s website and in its marketing materials to indicate that Customer is a client of Cydoc.
8.4 De-Identified Data. For clarification purposes, during and after the term of this Agreement, nothing in this Agreement is intended to prohibit Cydoc from creating and using De-Identified Data for its internal business purposes (such as improvement, enhancement, diagnostic, forecasting, planning and corrective purposes and to further develop its products and services), or from disclosing in any research publication any developed technology models and analysis generated from De-Identified Data. “De-Identified Data” means any data or information (including data and information derived from Personal Data) that has been de-identified in accordance with HIPAA.
9. Representations and Warranties.
9.1 Representations, Warranties and Covenants. You represent, warrant and covenant to Cydoc that you own or otherwise have and will have the necessary rights and consents in and relating to Your Data so that it does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights or any privacy or other rights of any third party, or violate any applicable laws, rules or regulations.
9.2 Warranties.
(a) Mutual Warranties. Each party represents and warrants to the other that: (a) it has the authority to enter into and perform the duties and obligations described in this Agreement; (b) the performance of its obligations and duties described in this Agreement does not conflict with any other agreement to which it is a party; and (c) it shall comply with all applicable laws and regulations in connection with its performance hereunder.
(b) Limited Warranty. Cydoc warrants to Customer that (a) during the term of this Agreement, the Cydoc Service provided to Customer will materially conform to the Documentation; and (b) upon making them available to Customer, the Cydoc Service shall be free of any malicious, or hidden program, data, or other harmful computer instructions. Cydoc’s exclusive liability and the Customer’s sole and exclusive remedy for breach of the warranty provisions of this Agreement shall be, at Cydoc’s option, to (i) repair or replace the element of the Cydoc Service that does not meet Cydoc’s warranty, or (ii) take return of or disable Customer’s use of such Cydoc Service and if and to the extent that Customer has prepaid any fees, refund the amount of the most recently prepaid fee, for example the most recent month’s fee for a subscription paid once per month, prorated over the remaining period for which Customer has prepaid, in which case this Agreement and Customer’s right to use the Cydoc Service shall terminate. The warranties set forth in this Section 9.2 shall not apply to the extent any non-conformity was caused by products not provided by Cydoc, by any unauthorized modification, abuse or misuse of the Cydoc Service or by any other events outside of Cydoc’s control.
(c) Customer Warranty. Customer represents and warrants to Cydoc that neither Customer nor any of its officers, directors, employees, agents or Authorized Users have been excluded, debarred, suspended or are otherwise ineligible to participate in federal health care programs or have been convicted of a criminal offense related to the provision of health care items or services, but have not yet been debarred, excluded or suspended.
(d) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, CYDOC DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED. CYDOC DOES NOT WARRANT THAT CUSTOMER’S USE OF THE CYDOC SERVICE WILL BE UNINTERRUPTED, THAT THE OPERATION THEREOF WILL BE ERROR FREE, OR THAT THE CYDOC SERVICE WILL ACHIEVE THE RESULTS INTENDED BY CUSTOMER. CYDOC EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CYDOC MAKES AVAILABLE ANY THIRD-PARTY SOFTWARE ON AN “AS IS” BASIS.
(e) Medical Disclaimer. CYDOC IS NOT A HEALTHCARE PROVIDER, AND THE CYDOC SERVICE IS NOT A SUBSTITUTE FOR THE JUDGMENT OF A QUALIFIED MEDICAL PROFESSIONAL. CUSTOMER ASSUMES FULL RISK AND RESPONSIBILITY FOR THE USE OF THE CYDOC SERVICE, SOFTWARE, AND INFORMATION MADE AVAILABLE THROUGH THE CYDOC SERVICE OR SOFTWARE BY CUSTOMER OR ANY OF ITS EMPLOYEES, AGENTS OR CONTRACTORS OR ANY AUTHORIZED USER, INCLUDING THE SELECTION OF ANY CONTENT MADE AVAILABLE THROUGH THE CYDOC SERVICE OR SOFTWARE. EXCEPT AS PROVIDED IN SECTION 10.1 BELOW, NEITHER CYDOC NOR ITS CONTRACTORS ARE RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR LIABILITY ARISING FROM USE OF THE CYDOC SERVICE, SOFTWARE, OR INFORMATION AVAILABLE THROUGH THE CYDOC SERVICE AND SOFTWARE.
10. Indemnification.
10.1 By Cydoc. Cydoc shall defend, indemnify and hold harmless Customer and its officers, directors, employees, successors and assigns, from and against any and all losses, damages, liabilities, settlements, costs and expenses resulting from or arising out of any third party claim which alleges that the Cydoc Service (excluding Third Party Software) infringe any duly issued United States patent, copyright or trademark or misappropriate any trade secret right of a third party (“Claim”). Customer shall provide Cydoc with prompt written notice of any Claim and permit Cydoc to control the defense, settlement, adjustment or compromise of such Claim. Customer shall have no authority to settle any Claim on behalf of Cydoc. In addition, in the event use of the Cydoc Service (excluding Third Party Software) becomes, or Cydoc’s reasonable opinion is likely to become, the subject of a claim of infringement as outlined in this Section 10.1, Cydoc may, at its option and expense: (a) obtain for Customer the continuing right to use such Cydoc Service; or (b) modify the Cydoc Service or replace them with a substantially functional equivalent so that they no longer infringe; or (c) if neither (a) nor (b) is reasonably practicable, terminate Customer’s license to such allegedly infringing Cydoc Service and if and to the extent that Customer has prepaid any fees, refund the amount of the most recently prepaid fee, for example the most recent month’s fee for a subscription paid once per month, prorated over the remaining period for which Customer has prepaid. This Section 10 states Cydoc’s entire liability and Customer’s exclusive remedy with respect to any claim of intellectual property infringement.
10.2 Limits on Indemnity. Cydoc shall have no obligation under Section 10.1 for any Claim based upon use by Customer of the Cydoc Service or Documentation in a form other than as provided by Cydoc if such claim would have been avoided by the use of an unaltered release of the same, or based upon the use of the Cydoc Service or Documentation with other items not provided by Cydoc, where such claim would have been avoided by the use of the Cydoc Service or Documentation alone, or based on any failure to implement Enhancements or Maintenance Modifications provided by Cydoc, where such claim would have been avoided by the use of the same.
10.3 By Customer. Customer shall defend, indemnify and hold harmless Cydoc and its officers, directors, employees, successors and assigns, from and against any and all losses, damages, liabilities, settlements, costs and expenses resulting from or arising out of any third party claim based on (a) the breach of this Agreement by Customer or any of its employees, agents, contractors or any Authorized User; or (b) the negligence of Customer or any of its employees, agents or contractors or any Authorized User. Cydoc will provide Customer with prompt written notice of such a claim and permit Customer to control the defense, settlement, adjustment or compromise of such claim. Cydoc shall have no authority to settle any such claim on behalf of Customer.
11. Limitations of Liability. IN NO EVENT WILL CYDOC OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS OR ASSIGNS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICE; (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICE; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF CYDOC AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID BY YOU TO CYDOC UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Term and Termination.
12.1 Term and Termination. The term of this Agreement shall be as set forth on the applicable form accompanying your Order Form, if any or other agreement that incorporates this Agreement, unless terminated as permitted herein. In addition to any other express termination right set forth herein or on an applicable Order Form: Either party may terminate this Agreement upon any material breach of this Agreement by the other party that is not cured within thirty (30) days following written notice thereof. Termination for breach will not preclude the terminating party from exercising any other remedies for breach. Either party may also terminate this Agreement immediately if the other party makes an assignment for the benefit of creditors, or if any bankruptcy, reorganization, debt arrangement or other proceeding under any bankruptcy or insolvency law is initiated by the other party, or is initiated against it and not dismissed within sixty (60) days, or if the other party ceases to be actively engaged in business.
12.2 Effect of Termination. Upon termination or expiration of this Agreement for any reason:
You shall immediately discontinue access and use of the Cydoc Service and destroy all usernames and passwords associated with such access to the Cydoc Service shall terminate; and
All payments due to Cydoc by you shall remain due and payable in accordance with the terms hereof.
12.3 Notwithstanding anything contained in this Agreement, Cydoc reserves the right, without notice and in our sole discretion, to terminate your right to access or use the Cydoc Service at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
13. Confidentiality. Each party agrees that during and after the existence of this Agreement it will hold in strictest confidence, and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other party. The term “Confidential Information” shall mean all non-public information, whether business or technical in nature, that the other party designates as being confidential, or which under the circumstances of disclosure ought to be treated as confidential and shall include (but is not limited to) information concerning business methods, business plans, new product launches, internal policies and procedures and pricing and other financial information. Neither party shall disclose the terms or conditions of this Agreement without the prior written consent of the other party, except (i) as may be required by law or (ii) to its employees, contractors or agents who have a specific need to know such information and who are under an obligation of confidentiality at least as restrictive as that contained in this Section. Notwithstanding the foregoing, information will not be deemed confidential if it (i) was known to the receiving party, and such information was acquired through proper methods, prior to its receipt from the disclosing party, as evidenced by written records of the receiving party; (ii) is now or (through no act or failure on the part of the receiving party) later becomes generally known through no breach of this Agreement by the receiving party; (iii) is supplied to the receiving party by a third party that is free to make that disclosure without restriction; or (iv) is independently developed by the receiving party without use of or reference to any Confidential Information provided by the disclosing party. The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party, provided that in each such case the receiving party (if legally permissible) provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief.
14. Miscellaneous.
14.1 Relationship of the Parties. This Agreement does not create any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party.
14.2 Notices. Any notice or other communication under this Agreement given by either party to the other will be in writing and delivered either (a) in person or by first-class, registered, or certified U.S. mail or overnight delivery service, return receipt requested, postage prepaid to the address set forth in the Order Form, or (b) by electronic mail to admin@cydoc.ai (for notice to Cydoc) or Customer’s email address set forth in the Order Form (for notice to Customer). Where a notice is sent under (a) above, notices will be deemed received twenty-four (24) hours after the same has been sent in accordance with this Section 14.2. Where a notice is sent under (b) above, notices will be deemed received upon delivery. Notices will be directed to the intended recipient at the address specified at the beginning of this Agreement or electronic mail address listed in this Section 14.2. Either party may from time to time change such addresses by giving the other party notice of such change in accordance with this paragraph.
14.3 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.4 Entire Agreement. This Agreement, including the attached Exhibits A and B, each of which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. In addition to any rights that accrued prior to termination, the provisions of Sections 2.2, 3.1, 5, 7-9, 11, 12 and 14 shall survive any termination of this Agreement.
14.5 Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent; provided, however, that either party may assign this Agreement without such consent in connection with any merger, consolidation, any sale of all or substantially all of such party’s assets or any other transaction in which more than fifty percent (50%) of its voting securities are transferred, subject to all of the terms of this Agreement. Any attempt to assign this Agreement other than in accordance with this provision shall be null and void.
14.6 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14.7 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14.8 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. Any notice, consent, or other communication hereunder shall be in writing, and shall be given personally, sent via overnight delivery or sent via email with confirmation of receipt to either party at their respective addresses set forth by Cydoc in the “Notices” section and by Customer during registration on the Cydoc website.
14.9 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of North Carolina, including its statutes of limitations, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case located in the city of Durham and County of Durham, North Carolina, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to Cydoc’s email address set forth herein or to the email address you provide when you register for the Cydoc Service shall be effective service of process for any suit, action or other proceeding brought in any such court. In the event of any claim, action or judicial proceeding arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred in resolving such claim, action or judicial proceeding.
14.10 Force Majeure. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by any reason where failure to perform is beyond the reasonable control of the non performing party.
EXHIBIT A
User Accounts
The Cydoc Service includes two types of user accounts:
- A Healthcare Professional account for use by a doctor, nurse practitioner, physician assistant, nurse, medical assistant, physical therapist, or other medical provider involved in writing medical notes on behalf of the entity that subscribes to the Cydoc Service. A Healthcare Professional account is used to:
- Create patient records by entering information such as name, birth date, and demographics.
- View and edit patient information for any patient that is part of the Customer’s practice, or any patient that has specifically permitted data access and modification by the Customer’s practice.
- Receive notes for patients.
- Create or modify notes for patients by entering patients’ medical information. Cydoc provides a user interface for efficient entry of structured and unstructured medical information.
- The Cydoc Service allows the automatic generation of medical notes based on the medical information entered by a patient or a Customer.
- A Healthcare Manager account is intended for use by persons responsible for billing and managing the Healthcare Professional accounts on behalf of on behalf of the business entity that subscribes to the Cydoc Service. A Healthcare Manager account is used to:
- Perform any of the functions of a Healthcare Professional account.
- Create or delete Healthcare Professional accounts using the names and email addresses of medical professionals.
- Enter billing information.
The Cydoc Service includes the following set-up: (a) Customer creates a Healthcare Manager account through the Cydoc website, and (b) Customer, optionally, creates one or more Healthcare Professional accounts through the Cydoc website. (c) It is the Customer’s sole responsibility to ensure that accounts are set up for access by the correct healthcare managers and healthcare professionals, and that all account information associated with a given user is accurate. Cydoc has no responsibility for verifying the identities of the healthcare managers or healthcare professionals associated with any accounts.
EXHIBIT B
Business Associate Addendum
This Business Associate Addendum (the “Addendum”) supplements and is incorporated by reference into the Cydoc Terms of Service (“Agreement”) between Cydoc Corporation (“Business Associate” or “BA”) and Provider as a Covered Entity under HIPAA (“Covered Entity” or “CE”), and is intended to and shall be interpreted to ensure the parties’ compliance with the Health Insurance Portability and Accountability Act and its implementing regulations, 45 C.F.R. Part 164 (collectively “HIPAA Rules”). Terms used, but not otherwise defined in this Addendum, shall have the same meaning as those terms are used in the HIPAA Rules.
1. Obligations and Activities of BA.
1.1 BA agrees to not use or disclose Protected Health Information (“PHI”) other than as permitted or required by this Addendum, the Agreement or as Required By Law.
1.2 BA agrees to use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI, to prevent use or disclosure of the PHI other than as provided for by this Addendum.
1.3 BA agrees to report to CE any use or disclosure of PHI not provided for by this Addendum of which it becomes aware, including breaches of Unsecured PHI as required by 45 C.F.R. §164.410. BA also agrees to report to CE any security incident, including all data breaches, related to PHI of which BA becomes aware; provided that the reporting requirement shall not apply to routine, unsuccessful security incidents such as port scans, pings, etc., that do not pose a material threat to the PHI.
1.4 BA agrees to ensure that any subcontractor, to whom it provides PHI received from, or created or received by BA on behalf of, CE, agrees to the same restrictions and conditions that apply through this Addendum to BA with respect to such information.
1.5 BA agrees to provide access, at the request of CE during normal business hours, to PHI in a Designated Record Set to CE or, as directed by CE, to an Individual in order to meet the requirements under 45 C.F.R. §164.524, provided that CE delivers to BA a written notice at least five (5) business days in advance of requesting such access.
1.6 BA agrees to make any amendment(s) to PHI in a Designated Record Set that CE directs pursuant to 45 C.F.R. §164.526, at the request of CE or an Individual.
1.7 Unless otherwise protected or prohibited from discovery or disclosure by law, BA agrees to make internal practices, books and records, relating to the use or disclosure of PHI received from, or created or received by BA on behalf of, CE available to the Secretary for purposes of the Secretary determining CE’s compliance with the HIPAA Rules.
1.8 BA agrees to maintain and, on request of CE, provide to CE documentation necessary to permit CE to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. §164.528.
1.9 To the extent BA carries out one or more of CE’s obligations under Subpart E of 45 C.F.R. Part 164, BA agrees to comply with the requirements of Subpart E that apply to CE in the performance of such obligations.
2. Permitted Uses and Disclosures by BA.
2.1 Except as otherwise limited by this Addendum, BA may make any uses and disclosures of PHI necessary to perform the services, if any, for and on behalf of CE in accordance with the terms of the Agreement and to otherwise meet its obligations under this Addendum, if such uses or disclosures would not violate the Privacy Rule if done by CE.
2.2 Except as otherwise limited in this Addendum, BA may use PHI for the proper management and administration of the BA, including internal analytics for BA’s own product development, or to carry out the legal responsibilities of the BA.
2.3 Except as otherwise limited in this Addendum, BA may disclose PHI for the proper management and administration of the BA or to carry out the legal responsibilities of BA, provided the disclosures are Required By Law or BA obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the BA of any instances of which it is aware in which the confidentiality of the information has been breached.
2.4 Except as otherwise limited in this Addendum, BA may use Protected Health Information: (i) to provide Data Aggregation services relating to the health care operations of CE as permitted by 45 C.F.R. §164.504(e)(2)(i)(B), and (ii) to de-identify such PHI in accordance with 45 C.F.R. 164.514(a) through (c).
3. Obligations of CE.
3.1 If and to the extent that CE has imposed or agreed to any limitation on the use or disclosure of PHI that is more restrictive than HIPAA, CE shall notify BA of any such limitation(s) that CE has imposed.
3.2 CE shall immediately notify BA of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect BA’s use or disclosure of Protected Health Information.
3.3 CE shall not request BA to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by the CE, except as permitted under Section 2 of this Addendum.
4. Term and Termination.
The term of this Addendum shall be effective upon execution of the Agreement and shall continue conterminously with the term of all Services being performed by BA for or on behalf of CE that necessarily and routinely involve PHI until this Addendum expires or is terminated, and all PHI is either returned or destroyed in accordance with this Section 5 of this Addendum. This Addendum shall terminate: (i) upon termination of the Agreement; (ii) upon 30 days’ prior written notice to the breaching party if either party breaches a material term of this Addendum and the breaching party fails to cure the breach by the end of the 30-day notice period; or (iii) the HIPAA Rules are amended or CE agrees to restrictions on the use or disclosure of PHI such that BA determines that performance of this Agreement may cause BA to incur unanticipated costs to comply or face adverse regulatory action.
5. Effect of Termination.
Upon termination of this Addendum for any reason, BA, with respect to PHI received from CE or created, maintained, or received by BA on behalf of CE, shall: (a) retain only that PHI which is necessary for BA to continue its proper management and administration or to carry out its legal responsibilities; (b) return to CE or destroy the remaining PHI that BA still maintains in any form; and (c) if and to the extent that such return or destruction is impractical, continue to use appropriate safeguards and comply with the HIPAA Rules as to any PHI that BA retains.