HEALTHENTIC INC.
POPULATION HEALTH DASHBOARD™ TERMS AND CONDITIONS OF USE
POPULATION HEALTH DASHBOARD™ TERMS AND CONDITIONS OF USE
Healthentic Inc. Population Health Dashboard™ Terms and Conditions of Use
BY AGREEING TO THESE HEALTHENTIC INC. POPULATION HEALTH DASHBOARD™ TERMS AND CONDITIONS OF USE (this “AGREEMENT”), YOU ARE CREATING A LEGALLY BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU (referred to throughout this Agreement as “USER”) AND HEALTHENTIC INC. (referred to throughout this Agreement as “HEALTHENTIC”). PLEASE READ THIS AGREEMENT CAREFULLY. BY USING OR ACCESSING THE POPULATION HEALTH DASHBOARD™ DATABASE AND SOFTWARE (THE “POPULATION HEALTH DASHBOARD”), USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. USER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY USER. THIS AGREEMENT IS ENFORCEABLE AGAINST USER AND ANY PERSON OR ENTITY THAT OBTAINED ACCESS TO THE POPULATION HEALTH DASHBOARD AND ON WHOSE BEHALF IT IS USED. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, USER MAY NOT USE, ACCESS OR VIEW THE POPULATION HEALTH DASHBOARD.
A. Overview
1. Access to the Population Health Dashboard is pursuant to a Master Services Agreement (the “MSA Agreement” or “MSA”) between an entity (“Employer”) and Healthentic. Healthentic has granted Employer the right to access the Population Health Dashboard tool in accordance with the terms, conditions and restrictions set forth in the MSA, in these Terms and Conditions, and a HIPAA Business Associate Agreement (“BAA”). Pursuant to such terms, Employer is permitted to grant access on its behalf to a limited number of users (“Authorized Users”). To access or use the Population Health Dashboard, each designated Authorized User must first agree to these Terms and Conditions. By accessing the Population Health Dashboard or otherwise indicating acceptance of these Terms and Conditions, User (a) agrees to comply with these Terms and Conditions, (b) confirms that User has legal authority to access the health benefit claims data of subscribers to Employer’s benefit plans (“Subscribers”) such as pursuant to a BAA agreement between such User and Employer, and (c) agrees to comply with all applicable laws, including HIPAA (the Health Insurance Portability and Accountability Act of 1996 and related regulations). In the event of any conflict between these Terms and Conditions and the MSA, the MSA terms will control.
B. Additional Terms and Conditions
1. DEFINITIONS.
1.1 “Confidential Information” means non-public information of the other party, whether written or otherwise, that a party knows or reasonably should know is considered confidential by the disclosing party.
1.2 “De-identify” and “De-identified”. “De-identify” means to remove, encode, encrypt, or otherwise eliminate or conceal data which identifies an individual, or modify information so that there is no reasonable basis to believe that the information can be used to identify an individual, in accordance with the implementation specifications set forth at 45 C.F.R. § 164.514(b). “De-identified Data” means data that has been De-identified.
1.3 “Population Health Dashboard” means Healthentic’s web-based software tool designed to help employers and their associates manage and measure employee health and health care expenses.
1.4 ”Other Information” means information or data (including De-identified Data) provided to Healthentic or entered into the Population Health Dashboard by Employer (or by others on its behalf) that does not constitute Protected Health Information.
1.5 “Protected Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 CFR 164.501, as applied to the information received by Healthentic.
1.6 “Subscriber Data” means data concerning Employer’s subscribers and dependents (collectively referred to as “Subscribers”) including, but not limited to, insurance claim data, eligibility data, enrollment data, health risk assessment data, and electronic health record data but shall not include: (a) information input into the Population Health Dashboard about any products and/or materials, (b) the means or method used to perform a procedure, surgery or service when not combined with any Protected Information, (c) data (including De-identified Data) obtained by Healthentic from Employer or third parties when not combined with any Protected Information.
2. LICENSE AND RESTRICTIONS.
2.1 License Grant. Subject to the terms and conditions of the MSA, Healthentic hereby grants to each Authorized User of Employer (but not to affiliates of such User or others), during the Term of the MSA (provided that Employer does not remove User as an Authorized User prior to the end of the Term), a limited, non-exclusive, non-transferable license to access and use the Population Health Dashboard solely on behalf of such Employer’s internal business purposes and not for the benefit of any other person or entity. Upon (a) termination of the MSA with Employer, (b) revocation of User’s status as an Authorized User of Employer (for any reason or no reason), (c) User’s failure to comply with these Terms and Conditions, or (d) if it would result in a potential violation of any applicable law, Users’ ability and permission to access and use the Population Health Dashboard shall immediately cease. User acknowledges he/she has no right to continue accessing or using the Population Health Dashboard without explicit authority from Employer.
2.2 License Restrictions. User shall not, directly or indirectly, and User shall not permit any other person to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Population Health Dashboard; (b) modify, translate, or create derivative works based on any element of the Population Health Dashboard or any related documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Population Health Dashboard; (d) use the Population Health Dashboard for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Employer; (e) remove any proprietary notices or disclaimers from Healthentic on any reports generated from the Population Health Dashboard or from any materials furnished or made available to Employer or User by Healthentic; (f) publish or disclose to third parties any evaluation of the Population Health Dashboard without Healthentic’s prior written consent; or (g) use the Population Health Dashboard for any purpose other than its intended purpose.
3. BUSINESS ASSOCIATE; PASSWORDS; SECURITY.
3.1 Business Associate Agreement. Prior to the disclosure or delivery by User, or delivery by User on User’s or Employer’s behalf, of any Protected Information, User and Employer (and Healthentic as necessary, in addition to a required BAA between Employer and Healthentic) shall enter into an appropriate BAA. The provider(s) of Subscriber Data to Healthentic, whether User, Employer or a third party on behalf of User or Employer, or some combination thereof, is responsible for ensuring that it has explicit authority to provide such data to Healthentic and that providing the data to Healthentic for inclusion in the Population Health Dashboard database will not violate HIPAA or any other law or regulation. All Subscriber Data shall be De-identified, such that it is not Protected Information pursuant to HIPAA, prior to delivery to Healthentic unless Healthentic explicitly consents to receive Protected Information and an appropriate BAA has been executed by all relevant parties.
3.2 Identification; Passwords; Security. User is responsible for maintaining the confidentiality of all usernames and passwords and for ensuring that each such username and password is used only by the Authorized User to whom it was issued. User is responsible for any and all activities that occur as a result of access to the Population Health Dashboard via User’s account and/or the utilization of usernames or passwords issued to User. User will notify both Employer as well as Healthentic (at support@healthentic.com) immediately of any unauthorized use of User’s account, usernames and passwords, or any other breach of security. User agrees to take all commercially reasonable precautions to protect the security of data transmitted over or stored in any system connected to or accessible via the Internet in connection with use of the Population Health Dashboard.
4. Compliance with Laws. User represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any Protected Information, Other Information, Subscriber Data, or other information uploaded or submitted to the Population Health Dashboard, including, without limitation, the requirements under HIPAA. User agrees: (a) to abide by all applicable local, state, national, and international laws and regulations, including, without limitation, privacy and other laws or regulations concerning the provision of Subscriber Data and access to the Population Health Dashboard; (b) to refrain from attempting to re-associate identifying information with De-identified Data; (c) to not submit, send or store data on or to the Population Health Dashboard which violates the rights of any individual or entity; and (d) to not upload content that contain viruses, worms, Trojan Horses, corrupted files, or any other harmful code or data. Healthentic does not assume any responsibility for any Subscriber Data or other material submitted. Healthentic may remove any inappropriate content; however, Healthentic does not and is not obligated to verify, authenticate, monitor or edit the Subscriber Data or Other Information input into in the Population Health Dashboard. User shall be responsible and liable for the completeness, integrity, quality and accuracy of any information it enters into the Population Health Dashboard.
5. OWNERSHIP. All right, title and interest in the Population Health Dashboard service, any other Healthentic materials furnished or made accessible hereunder, all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by User regarding the Population Health Dashboard (collectively, “Feedback”), including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Healthentic or its licensors and providers, as applicable. User hereby does, and agrees it will continue to, irrevocably assign to Healthentic all Feedback (including all intellectual property rights therein) made by Employer.
6. CONFIDENTIALITY. User agrees to take all reasonably necessary actions to protect the Confidential Information of Healthentic and Employer.
7. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALTHENTIC AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR SUITABILITY OF ANY PROGRAM, RECOMMENDED COURSE OF ACTION OR THIRD PARTY VENDOR SELECTION. HEALTHENTIC DOES NOT WARRANT THAT THE POPULATION HEALTH DASHBOARD WILL MEET USER’S OR EMPLOYER’S REQUIREMENTS OR THAT THE OPERATION OF THE POPULATION HEALTH DASHBOARD WILL BE UNINTERRUPTED OR ERROR-FREE.
8. INDEMNIFICATION; LIMITATION OF LIABILITY. Healthentic’s sole obligation to indemnify any party for claims regarding the Population Health Dashboard is set forth in the MSA. IN NO EVENT SHALL HEALTHENTIC HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO USER’S ACCESS OR USE OF THE POPULATION HEALTH DASHBOARD, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. IN NO EVENT SHALL HEALTHENTIC OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF HEALTHENTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. No Guarantee of Health or Other Results. Healthentic shall not be liable for (a) any action or failure to act by Employer, Authorized Users, patients or others as a result of the action plans or recommendations obtained utilizing the Population Health Dashboard, (b) any action or failure to act by any “wellness vendor”, service provider or other third party recommended, listed in or presented through the Population Health Dashboard; rather Employer, Authorized Users, and each patient or other person is responsible for determining the suitability of any course of action and any selection of third party providers. Healthentic does not endorse or guarantee the results of any program or suggested action plan and is not dispensing medical, business or other advice.
BY AGREEING TO THESE HEALTHENTIC INC. POPULATION HEALTH DASHBOARD™ TERMS AND CONDITIONS OF USE (this “AGREEMENT”), YOU ARE CREATING A LEGALLY BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU (referred to throughout this Agreement as “USER”) AND HEALTHENTIC INC. (referred to throughout this Agreement as “HEALTHENTIC”). PLEASE READ THIS AGREEMENT CAREFULLY. BY USING OR ACCESSING THE POPULATION HEALTH DASHBOARD™ DATABASE AND SOFTWARE (THE “POPULATION HEALTH DASHBOARD”), USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. USER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY USER. THIS AGREEMENT IS ENFORCEABLE AGAINST USER AND ANY PERSON OR ENTITY THAT OBTAINED ACCESS TO THE POPULATION HEALTH DASHBOARD AND ON WHOSE BEHALF IT IS USED. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, USER MAY NOT USE, ACCESS OR VIEW THE POPULATION HEALTH DASHBOARD.
A. Overview
1. Access to the Population Health Dashboard is pursuant to a Master Services Agreement (the “MSA Agreement” or “MSA”) between an entity (“Employer”) and Healthentic. Healthentic has granted Employer the right to access the Population Health Dashboard tool in accordance with the terms, conditions and restrictions set forth in the MSA, in these Terms and Conditions, and a HIPAA Business Associate Agreement (“BAA”). Pursuant to such terms, Employer is permitted to grant access on its behalf to a limited number of users (“Authorized Users”). To access or use the Population Health Dashboard, each designated Authorized User must first agree to these Terms and Conditions. By accessing the Population Health Dashboard or otherwise indicating acceptance of these Terms and Conditions, User (a) agrees to comply with these Terms and Conditions, (b) confirms that User has legal authority to access the health benefit claims data of subscribers to Employer’s benefit plans (“Subscribers”) such as pursuant to a BAA agreement between such User and Employer, and (c) agrees to comply with all applicable laws, including HIPAA (the Health Insurance Portability and Accountability Act of 1996 and related regulations). In the event of any conflict between these Terms and Conditions and the MSA, the MSA terms will control.
B. Additional Terms and Conditions
1. DEFINITIONS.
1.1 “Confidential Information” means non-public information of the other party, whether written or otherwise, that a party knows or reasonably should know is considered confidential by the disclosing party.
1.2 “De-identify” and “De-identified”. “De-identify” means to remove, encode, encrypt, or otherwise eliminate or conceal data which identifies an individual, or modify information so that there is no reasonable basis to believe that the information can be used to identify an individual, in accordance with the implementation specifications set forth at 45 C.F.R. § 164.514(b). “De-identified Data” means data that has been De-identified.
1.3 “Population Health Dashboard” means Healthentic’s web-based software tool designed to help employers and their associates manage and measure employee health and health care expenses.
1.4 ”Other Information” means information or data (including De-identified Data) provided to Healthentic or entered into the Population Health Dashboard by Employer (or by others on its behalf) that does not constitute Protected Health Information.
1.5 “Protected Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 CFR 164.501, as applied to the information received by Healthentic.
1.6 “Subscriber Data” means data concerning Employer’s subscribers and dependents (collectively referred to as “Subscribers”) including, but not limited to, insurance claim data, eligibility data, enrollment data, health risk assessment data, and electronic health record data but shall not include: (a) information input into the Population Health Dashboard about any products and/or materials, (b) the means or method used to perform a procedure, surgery or service when not combined with any Protected Information, (c) data (including De-identified Data) obtained by Healthentic from Employer or third parties when not combined with any Protected Information.
2. LICENSE AND RESTRICTIONS.
2.1 License Grant. Subject to the terms and conditions of the MSA, Healthentic hereby grants to each Authorized User of Employer (but not to affiliates of such User or others), during the Term of the MSA (provided that Employer does not remove User as an Authorized User prior to the end of the Term), a limited, non-exclusive, non-transferable license to access and use the Population Health Dashboard solely on behalf of such Employer’s internal business purposes and not for the benefit of any other person or entity. Upon (a) termination of the MSA with Employer, (b) revocation of User’s status as an Authorized User of Employer (for any reason or no reason), (c) User’s failure to comply with these Terms and Conditions, or (d) if it would result in a potential violation of any applicable law, Users’ ability and permission to access and use the Population Health Dashboard shall immediately cease. User acknowledges he/she has no right to continue accessing or using the Population Health Dashboard without explicit authority from Employer.
2.2 License Restrictions. User shall not, directly or indirectly, and User shall not permit any other person to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Population Health Dashboard; (b) modify, translate, or create derivative works based on any element of the Population Health Dashboard or any related documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Population Health Dashboard; (d) use the Population Health Dashboard for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Employer; (e) remove any proprietary notices or disclaimers from Healthentic on any reports generated from the Population Health Dashboard or from any materials furnished or made available to Employer or User by Healthentic; (f) publish or disclose to third parties any evaluation of the Population Health Dashboard without Healthentic’s prior written consent; or (g) use the Population Health Dashboard for any purpose other than its intended purpose.
3. BUSINESS ASSOCIATE; PASSWORDS; SECURITY.
3.1 Business Associate Agreement. Prior to the disclosure or delivery by User, or delivery by User on User’s or Employer’s behalf, of any Protected Information, User and Employer (and Healthentic as necessary, in addition to a required BAA between Employer and Healthentic) shall enter into an appropriate BAA. The provider(s) of Subscriber Data to Healthentic, whether User, Employer or a third party on behalf of User or Employer, or some combination thereof, is responsible for ensuring that it has explicit authority to provide such data to Healthentic and that providing the data to Healthentic for inclusion in the Population Health Dashboard database will not violate HIPAA or any other law or regulation. All Subscriber Data shall be De-identified, such that it is not Protected Information pursuant to HIPAA, prior to delivery to Healthentic unless Healthentic explicitly consents to receive Protected Information and an appropriate BAA has been executed by all relevant parties.
3.2 Identification; Passwords; Security. User is responsible for maintaining the confidentiality of all usernames and passwords and for ensuring that each such username and password is used only by the Authorized User to whom it was issued. User is responsible for any and all activities that occur as a result of access to the Population Health Dashboard via User’s account and/or the utilization of usernames or passwords issued to User. User will notify both Employer as well as Healthentic (at support@healthentic.com) immediately of any unauthorized use of User’s account, usernames and passwords, or any other breach of security. User agrees to take all commercially reasonable precautions to protect the security of data transmitted over or stored in any system connected to or accessible via the Internet in connection with use of the Population Health Dashboard.
4. Compliance with Laws. User represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any Protected Information, Other Information, Subscriber Data, or other information uploaded or submitted to the Population Health Dashboard, including, without limitation, the requirements under HIPAA. User agrees: (a) to abide by all applicable local, state, national, and international laws and regulations, including, without limitation, privacy and other laws or regulations concerning the provision of Subscriber Data and access to the Population Health Dashboard; (b) to refrain from attempting to re-associate identifying information with De-identified Data; (c) to not submit, send or store data on or to the Population Health Dashboard which violates the rights of any individual or entity; and (d) to not upload content that contain viruses, worms, Trojan Horses, corrupted files, or any other harmful code or data. Healthentic does not assume any responsibility for any Subscriber Data or other material submitted. Healthentic may remove any inappropriate content; however, Healthentic does not and is not obligated to verify, authenticate, monitor or edit the Subscriber Data or Other Information input into in the Population Health Dashboard. User shall be responsible and liable for the completeness, integrity, quality and accuracy of any information it enters into the Population Health Dashboard.
5. OWNERSHIP. All right, title and interest in the Population Health Dashboard service, any other Healthentic materials furnished or made accessible hereunder, all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by User regarding the Population Health Dashboard (collectively, “Feedback”), including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Healthentic or its licensors and providers, as applicable. User hereby does, and agrees it will continue to, irrevocably assign to Healthentic all Feedback (including all intellectual property rights therein) made by Employer.
6. CONFIDENTIALITY. User agrees to take all reasonably necessary actions to protect the Confidential Information of Healthentic and Employer.
7. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALTHENTIC AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR SUITABILITY OF ANY PROGRAM, RECOMMENDED COURSE OF ACTION OR THIRD PARTY VENDOR SELECTION. HEALTHENTIC DOES NOT WARRANT THAT THE POPULATION HEALTH DASHBOARD WILL MEET USER’S OR EMPLOYER’S REQUIREMENTS OR THAT THE OPERATION OF THE POPULATION HEALTH DASHBOARD WILL BE UNINTERRUPTED OR ERROR-FREE.
8. INDEMNIFICATION; LIMITATION OF LIABILITY. Healthentic’s sole obligation to indemnify any party for claims regarding the Population Health Dashboard is set forth in the MSA. IN NO EVENT SHALL HEALTHENTIC HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO USER’S ACCESS OR USE OF THE POPULATION HEALTH DASHBOARD, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. IN NO EVENT SHALL HEALTHENTIC OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF HEALTHENTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. No Guarantee of Health or Other Results. Healthentic shall not be liable for (a) any action or failure to act by Employer, Authorized Users, patients or others as a result of the action plans or recommendations obtained utilizing the Population Health Dashboard, (b) any action or failure to act by any “wellness vendor”, service provider or other third party recommended, listed in or presented through the Population Health Dashboard; rather Employer, Authorized Users, and each patient or other person is responsible for determining the suitability of any course of action and any selection of third party providers. Healthentic does not endorse or guarantee the results of any program or suggested action plan and is not dispensing medical, business or other advice.
