Modified: August 1st, 2019
A. Business Associate Agreement
Capitalized terms not defined in this Agreement shall be defined as provided in HIPAA, the HITECH ACT and their implementing rules.
2. Data Policy, Uses and Disclosures of Protected Health Information
2.3 Each party shall maintain appropriate safeguards including, but not limited to, administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Protected Health Information.
2.4 If either party becomes aware of any unauthorized access to or use, processing or disclosure of unsecured Protected Health Information, it shall so notify the other party. Such notice shall contain: (a) the date of discovery of the unauthorized access, use, processing or disclosure; (2) a listing of the identification of individuals and/or classes of individuals who are subject to the unauthorized access, use, processing or disclosure; and (3) a general description of the nature of the unauthorized access, use, processing or disclosure. The party responsible for such unauthorized access, use, processing or disclosure shall perform an appropriate risk assessment to determine whether the Protected Health Information has been compromised. In performing the risk assessment, such party will consider a combination of factors such as: (a) the nature and extent of the Protected Health Information affected, (b) the unauthorized person who impermissibly used the Protected Health Information or to whom the Protected Health Information was impermissibly disclosed; (c) whether Protected Health Information was acquired or viewed and (d) the extent to which the risk to the Protected Health Information has been mitigated. The results of such risk assessment shall be provided to other party. Liberate is not responsible for monitoring Healthcare Provider’s own access to or use, processing or disclosure of Protected Health Information.
2.5 In the event of an unauthorized access to or use, processing or disclosure of unsecured Protected Health Information, the party responsible for such unauthorized access to or use, processing or disclosure of unsecured Protected Health Information will use reasonable efforts to mitigate, to the extent practicable, any harmful effect arising from such unauthorized access to or use, processing or disclosure of unsecured Protected Health Information.
2.6 The parties will cooperate with respect to any required notifications that must be made to the individuals or the media with respect to any unauthorized access to or use, processing or disclosure of unsecured Protected Health Information.
2.7 With respect to any subcontractor or agent to whom either party provides Protected Health Information, the disclosing party shall first contractually obligate such Subcontractor or agent to agree to protect such Protected Health Information pursuant to terms and conditions at least as protective as the terms of this Business Associate Agreement.
2.8 Liberate may de-identify any and all Protected Health Information that is in its possession or control provided that Liberate implements de-identification criteria in accord with applicable law. De-identified information does not constitute Protected Health Information and is not subject to the terms of this Business Associate Agreement.
3. Compliance with Law
3.3 Upon request by the Department of Health and Human Services ("HHS"), each party shall make available to HHS the internal practices, books, and records of such party relating to the use and disclosure of Protected Health Information for purposes of ensuring compliance with the provisions of HIPAA and the HITECH Act.
3.4 In the event that Liberate receives an inquiry from an individual for access to or the right to amend Protected Health Information, it shall advise Healthcare Provider of that communication and the request. The parties shall cooperate in making Protected Health Information available to the individual and in making the requested amendment of Protected Health Information. The Healthcare Provider shall retain and make available on request information required to provide an accounting of disclosures in accordance with the provisions of HIPAA and the HITECH Act.
4. Default, Termination
4.1 In the event that either party reasonably determines that the other has accessed, used, processed or disclosed unsecured Protected Health Information in a manner inconsistent with a material term of this Business Associate Agreement, it shall provide written notice of such breach to the other party and specify in reasonable detail any such breach. Upon receipt of such written notice, the receiving party shall have 30 days to achieve compliance with this Business Associate Agreement or to establish a reasonable schedule for compliance with this Business Associate Agreement. In the event that a party fails or refuses to comply with this obligation, the other party may terminate the Agreement upon written notice. If either party reasonably determines that the other party has accessed, used, processed or disclosed Protected Health Information in a manner inconsistent with this Agreement following written notice of a prior breach, the non-breaching party may immediately terminate the Agreement.
4.2 Within 30 days of termination of this Business Associate Agreement, Liberate shall return to Healthcare Provider, or destroy, the Protected Health Information made available to Liberate by the Healthcare Provide that is in Liberate control and take reasonable steps to ensure that Liberate has no means of identifying or re-identifying individuals who are the subject of such Protected Health Information. Liberate shall also contractually obligate any Subcontractor to return to Liberate, or destroy, any such Protected Health Information in the Subcontractor's control.
4.3 In the event that Liberate is unable to return or destroy the Protected Health Information in its control, Liberate shall continue to protect such Protected Health Information from further disclosure.
4.4 UNDER NO CIRCUMSTANCES WILL LIBERATE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, PROPRIETORS, PARTNERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SERVANTS, ATTORNEYS, PREDECESSORS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) ARISING OUT OF ITS ACCESS TO OR USE, PROCESSING OR DISCLOSURE OF PROTECTED HEALTH INFORMATION, EVEN IF IT OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages; thus, this limitation may not be applicable.
4.5 Healthcare Provider will defend, indemnify, and hold harmless Liberate and its affiliates, and its and their respective directors, officers, shareholders, proprietors, partners, employees, agents, representatives, servants, attorneys, predecessors, successors and assigns, from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys' fees and litigation expenses), relating to or arising from Healthcare Provider's (i) unauthorized access to or use, processing or disclosure of Protected Health Information, (ii) breach of this Business Associate Agreement or (iii) violation of applicable law.
5. Choice of Law and Dispute Resolution
6. Notices; Contacting LiberateIdeas
Any notices to Healthcare Provider may be sent to the e-mail address that is provided to Liberate in the Healthcare Provider's registration, and will be deemed given one business day after the e-mail is sent. Notices to Liberate must be sent to Liberate and the following e-mail address:
Business Associate Agreement
Liberate Ideas, Inc.
26 Park Street
Montclair, NJ 07042
Data Protection Officer (DPO): Collin Nordstrom
The following provisions will survive the termination of this Business Associate Agreement: 1; 4; 5 and 7. Failure to insist on strict performance of any provisions of this Business Associate Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver of any provision of this Business Associate Agreement will be valid unless in writing and acknowledged in writing or electronically by both parties. If any portion of this Business Associate Agreement is adjudged invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain valid, enforceable, and in effect, and the parties will promptly substitute for the invalid provision an enforceable provision which resembles the invalid provision as closely as possible in intent and economic effect. No joint venture, partnership, employment or agency relationship exists between Liberate and the Healthcare Provider as a result of this Business Associate Agreement. This Business Associate Agreement constitutes the entire agreement between Liberate and the Healthcare Provider with respect to the use of Protected Health Information, and, except and only if the parties have separately executed a stand-alone business associate agreement, supersedes any and all prior understandings or agreements between Liberate and the Healthcare Provider, whether written or oral.
Last Updated August 1st, 2019
- YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT;
- YOU ARE THE PHYSICIAN, NURES, PHYSICIAN ASSISTANT OR OTHER HEALTHCARE PROFESSIONAL IDENTIFIED IN THE PROFILE ACCESSED THROUGH THE SERVICES;
- YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS Agreement AND ACKNOWLEDGE THAT THIS Agreement IS THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN LIBERATE AND YOU; AND
- IF YOU ARE NOT WILLING TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PRECEDING ACKNOWLEDGEMENT AND AGREEMENT, THEN DO NOT SELECT THE 'I AGREE' BUTTON ASSOCIATED WITH THIS Agreement AND DO NOT ACCESS OR USE OUR SERVICES OR PROVIDE YOUR INFORMATION TO US. LIBERATE DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS OR USE THE SERVICES OR RELATED PRODUCTS OR SERVICES.
For the purposes of this Agreement, the terms set forth in this Section 1 have the meanings assigned to them below.
"Confidential Information" means any information relating to our business, financial affairs, current or future products or technology, trade secrets, workforce, customers, or any other information that is treated or designated by us as confidential or proprietary, or would reasonably be viewed as confidential or as having value to our competitors. Confidential Information does not include information that we make publicly available or that becomes known to the general public other than as a result of a breach of an obligation by you. Confidential Information does not include individuals' health information.
"Consent" means consent or authorization by a user of the Services allowing us to take actions described under this Agreement, which the user of the Services may give in an electronic communication to us or by use of the features of the Services (such as "share," "transmit," "refer," "authorize," "agree" and the like).
"De-Identified Health Information" means health information that has been de-identified in accordance with the provisions of applicable privacy law, rules and regulations.
"De-Identified Information" means De-Identified Health Information and De-Identified Personal Information.
"De-Identified Personal Information" means Personal Information from which a user's name and other unique identifiers have been removed, and from which the user cannot reasonably be identified.
"De-Identify," with respect to Personal Information, means to make such information into De-Identified Personal Information and with respect to health information, means to make such health information into De-Identified Health Information.
"Personal Information" means information that identifies an individual personally.
"Provider ID" means your unique user account.
"Protected Health Information" means information in any format that identifies an individual, including demographic information collected from an individual that can reasonably be used to identify the individual, including information received by a health care provider that relates to the past, present, or future physical or mental health condition of an individual.
"Services" means our mobile app and its content, and other services provided by us to you.
"Your Health Information" means Protected Health Information that you input or upload onto the Services.
"Your Information" means information that you input or upload onto the Services, including Your Personal Information and Your Health Information.
"Your Personal Information" means Personal Information that you enter or upload onto the Services.
"Your Personal Information" means Personal Information that you enter or upload onto the Services.
In addition, the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." The word "or" shall be construed to have the same meaning and effect as "and/or." The words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Agreement. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
2.Grant of Right to Use the Services
We grant to you and you accept a non-exclusive, personal, non-transferable, limited right to access and use the Services, subject to your full compliance with the terms and conditions set forth in this Agreement and with our Policies and Procedures. You will not: (a) use the Services for time-sharing, rental or service bureau purposes; (b) make the Services, in whole or in part, available to any other person, entity or business; (c) copy, reverse engineer, decompile or disassemble the Services, in whole or in part, or otherwise attempt to discover the source code to the software used by the Services; or (d) modify the Services or associated software or combine the Services with any other software or services not provided or approved by us. You will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement.
3.Access to the Services
3.1 Access Rights We offer the Services to you as more fully described in this Section 3. In order to register for an account, you must furnish, among other things, your full legal name and fictitious business name(s) (i.e., trade name, d/b/a or "doing business as") as part of the registration process. This information will be associated with your National Provider ID. If you fail to complete the registration information, you may not be able to access all of the Services.
3.2 Verification You agree that your use of the Services is subject to verification by us of your identity and credentials as a licensed health care provider, and to your ongoing qualification as such. You agree that we may use and disclose Your Personal Information for such purposes, including making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. Notwithstanding the applicable provisions set forth in Section 14, you agree that we may terminate your access to or use of the Services at any time if we are unable at any time to determine or verify your qualifications or credentials.
3.3 Permitted Uses.
3.3.1 Subject to the terms of this Agreement, you may use Your Health Information for any purpose expressly permitted by applicable law.
3.3.2 You will not use the Services for any purposes other than those described in Section 3.3.1. In particular, you will not:
- reproduce, publish, or distribute content in connection with the Services that infringes any third party's trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right; nor
- use the Services to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages, or otherwise unlawful material.
- (i) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information housed in the Services, except in accordance with accepted practices; (ii) use the Services in a manner that interferes with other users' use of the Services; (iii) use the Services in any manner that violates our Policies and Procedures; or (iv) as applicable, use any ad blocking mechanism, device, or tool to prevent the placement of advertisements in the Services;
- circumvent any technical measures we have put in place to safeguard the Services or the confidentiality, integrity or accessibility of any information housed thereon, or any technical measures we have put in place to restrict access to the Services solely to you; and
- access any portion of the Services other than through mobile applications developed and operated by us.
3.4 Clinical Support Information. We may provide information from time to time to assist you in clinical decision-making. This may include information and reminders concerning drug interactions, allergies, dosages, as well as general health-care related information and resources. We may also provide forums for our users to exchange information. You agree that the information and materials available through the Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your professional judgment. Information may be placed in the Services by us and by third parties beyond our control. We are not responsible for the accuracy or completeness of information available from or through the Services. You assume full risk and responsibility for the use of information you obtain from or through the Services, and neither we nor any of our licensors or data providers are responsible or liable for any claim, loss, or liability arising from use of the information. We do not recommend or endorse any provider of health care or health-related products, items or services, and the appearance of materials in the Services relating to any such products, items or services is not an endorsement or recommendation of them. You will review the definitions, functionality, and limitations of the Services, and to make an independent determination of their suitability for your use. We and our suppliers and licensors disclaim all warranties, whether expressed or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the Services for any purpose.
3.5 User Identification. We authorize you to use your Provider ID assigned to you by us solely for purposes of accessing and using the Services. You acquire no ownership rights and your Provider ID may be revoked or changed at any time in our sole discretion. You will adopt and maintain reasonable and appropriate security precautions for your Provider ID to prevent its disclosure to or use by unauthorized persons.
3.6 No Third-Party Access. Except as allowed or required by law, you will not permit any third party to use or access the Services without our prior written agreement. Nor will you authorize or assist any person or entity, other than your professional delegates at your sole discretion, in accessing, or attempting to access, any portion of the Services through any means other than a mobile app that we have authored and provided to you. You will promptly notify us of any order or demand for compulsory disclosure of health information if the disclosure requires access to or use of the Services. You will cooperate fully with us in connection with any such demand. You will also notify us in the event that any person or entity who is not identified on our website as a recognized Liberate business partner, (a) claims to offer a service or system that "integrates with" our Services or (b) requests to use your Provider ID or requests that you obtain a Provider ID in order to access to the Services in a manner that would violate this Agreement if you engaged in such activity.
3.7 Patient Visit Record (PVR). You may make available to your patients a record of their visit, called a Patient Visit Record, or PVR, through a web-based personal health record portal that we operate on your behalf (a "HIPAA Compliant Patient Portal"). You are also solely responsible for the PVR information that you make available through a Patient Portal.
3.8 Forums. We may in the future offer forums for the exchange of information among our users. You will comply with all applicable forum rules. In particular, you understand that we do not assure the accuracy, reliability, confidentiality or security of information made available through the use of such forums. You acknowledge that any information you post in a forum or discussion group is available to the public, and may result in your receiving communications from others outside our site. You are responsible for safeguarding the privacy of you and your patients’ personal information when you participate in forums, discussion groups and the like. You agree not to disclose individually identifiable health information through such forums.
3.9 Compliance with Law. You are solely responsible for ensuring that your use of the Services complies with applicable law, including laws relating to maintenance of privacy, security, and confidentiality of patient and other health information. You will not grant any user, any rights to access or use of our Services that they would not be allowed to have under applicable laws. We offer no assurance that your use of the Services under the terms of this Agreement will not violate any law or regulation applicable to you. Except as otherwise provided in this Agreement, we will keep Your Information private and will not share it with third parties, unless we believe in good faith that disclosure of Your Information is necessary to: (a) comply with a court order, warrant or other legal process; (b) protect the rights, property or safety of Liberate or others, or (c) investigate or enforce suspected breaches of this Agreement.
3.11 Professional Responsibility. You will be solely responsible for the professional and technical services you provide. We make no representations concerning the completeness, accuracy or utility of any information in the Services, or concerning the qualifications or competence of persons who placed it there. We have no liability for the consequences to you or your patients of your use of the Services.
3.12 Cooperation. You will cooperate with us in the administration of the Services, including providing reasonable assistance in evaluating the Services and collecting and reporting data requested by us for purposes of administering the Services.
3.13 Indemnification. You hereby agree to indemnify, defend, and hold harmless us and other users, and our and their respective affiliates, officers, directors, employees and agents, from and against any claim, cost or liability, including reasonable attorneys' fees, arising out of or relating to: (a) the use of the Services by you; (b) any breach by you of any representations, warranties or agreements contained in this Agreement; and (c) your negligent or willful misconduct. Your indemnifications obligations in this Agreement (including this Section 3.13) are cumulative, and are not intended to, nor do they, limit your indemnification obligations elsewhere in this Agreement or at law, even if such obligations arise or are occasioned or triggered by a single assertion, claim, circumstance, action, event or transaction.
4.Use of Information
4.1 Purpose of Services The purpose of the Services is to store Your Health Information and: make health information available to your patients through our LiberateHealthª portal. You may make Your Health Information accessible to your patients through the Services for these purposes. You authorize us, as your agent, to use and disclose Your Health Information as follows, subject to the recipient’s agreement to comply with applicable laws and regulations relating to the use and disclosure of health information, and subject also to the provisions of Section 8:
4.1.1 We will permit unrestricted access to Your Health Information to you. You are responsible for ensuring that your use of Your Health Information is consistent with the relevant legal restrictions.
4.1.2 We will permit access to Your Health Information to your patients to whom you have sent a PVR to their LiberateHealthª portal and whom have registered with the portal.
4.1.4 We may De-Identify Your Health Information and Your Information, and use and disclose De-Identified Information as provided by Section 6.2.
4.1.5 We may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize us to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.
4.1.6 We may use Your Health Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Services makes available, in order to render these reports to You. Such reporting will be done in a manner that does not make any disclosure of Your Health Information that you would not be permitted to make.
4.1.7 We may use Your Health Information for the proper management and administration of the Services and our business, and to carry out our legal responsibilities. We may also disclose Your Health Information for such purposes if the disclosure is required by applicable law, or we obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only (a) as required by applicable law, or (b) for the purpose for which it was disclosed to the recipient, and the recipient notifies us of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, we may permit access to the system by our contracted system developers and partners under appropriate confidentiality agreements.
4.1.8 We may use Your Health Information to contact your patients on your behalf for any purpose for which you would be permitted to contact them, including:
- For treatment, including sending the PVR, appointment and prescription refill reminders;
- For care coordination, or to direct or recommend alternative treatments, therapies, health care providers or settings of care;
- To request authorization on your behalf from your patients to use or disclose their health information for any purpose for which use or disclosure may be made with an appropriate authorization, including marketing purposes. You agree that we may also use and disclose your patients’ health information as permitted by any such authorization; and
- To provide information about health-related products or services that you provide, or that we provide on your behalf.
4.3 Specially Protected Information You acknowledge that federal and state and local laws may impose restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Health Information may properly be disclosed for the purposes set forth in Section 4.1, subject to the restrictions of applicable law. In particular, you will:
4.3.1 not make available to other users through the Services any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users or under law);
4.3.2 obtain all necessary consents, authorizations or releases from individuals required for making their health information available through the Services for the purposes set forth in Section 4.1;
4.3.3 include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Services; and
4.3.4 not place in the Services any information that you know or have reason to believe is false or materially inaccurate.
5.Product and Service Notifications
We may place advertisements concerning the products and services of third parties throughout the Services, so that you see them when you use the Services. We may receive remuneration from the suppliers of these products and services for placing their advertisements. We may use computerized processes to tailor the advertisements to you or to your use of the system. However, except as expressly permitted by this Agreement or by our Policies and Procedures, unless we obtain your Consent, we will not disclose to any third party any information that identifies you to enable the third party to market products or services to you directly. We may permit our trusted service access to your personal information to provide return on investment analysis to our sponsors.
6.Intellectual Property Rights
6.1 Individually Identifiable Health Information You retain all rights with regard to Your Health Information, and we will only use such information as expressly permitted in this Agreement.
6.2 De-Identified Information In consideration of our provision of the Services, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Health Information or Your Personal Information pursuant to Section 4.1. You agree that we may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are the principal consideration for the provision of the Services, without which we would not enter into this Agreement.
6.3 Other Works and Information You hereby grant to us a nonexclusive, royalty-free, fully paid-up, perpetual, irrevocable, worldwide and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any information, material or work product – other than Your Health Information and Your Personal Information that has not been De-Identified – you provide to the Services. You agree that we may use, disclose, market, license and sell such information and works, including derivative products, without restriction. This includes, for example, custom templates that you create using the Services, and information (other than Your Health Information or Your Personal Information which has not been De-Identified) that you contribute to forums, discussion groups and the like. You may provide content or material to the Services by participating in forums, discussion groups and the like, or by using the site to create custom templates and the like. Furthermore, you agree that we may use, disclose, market, license and sell such material or content, and that you have no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof. You warrant and agree that any material you provide will not infringe or otherwise violate the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law.
You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Information.
7.1 You are responsible for notifying your patients and any other individual(s) you "educate" with our service that they will be recorded, and that such recording given their express permission will be transmitted and stored by third parties.
8.Business Associate Agreement
By registering or participating in the Services, you consent to the terms of the Liberate business associate agreement and we mutually agree to protect any information received through such communication services in accordance with the terms of such agreement.
9.Third-Party Sites and Service Providers
10.Fees and Charges
You will not pay us any service fee for the use of our Services, however, you are responsible for any charges you incur to use the Services, such as telephone and equipment charges, and fees charged by third-party vendors of products and services.
11.1 You may not disclose our Confidential Information to any other person, and you may not use any Confidential Information except for the purpose of this Agreement. Except as otherwise provided in this Agreement, you may not, without our prior written consent, at any time, during or after the Term of this Agreement, directly or indirectly, divulge or disclose Confidential Information for any purpose. In addition, except for the purposes of using the Services, you will not use Confidential Information for any other purposes. You will hold all Confidential Information in strict confidence and to take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will disclose Confidential Information only to your personnel who have a need to use it for the purposes of this Agreement. You will inform all such recipients of the confidential nature of Confidential Information and will instruct them to deal with Confidential Information in accordance with the terms of this Agreement. You will promptly advise us in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person, which may come to your attention.
11.2 You agree that we will suffer irreparable harm if you fail to comply with your obligations set forth in Section 11.1, and you further agree that monetary damages will be inadequate to compensate us for any such breach. Accordingly, you agree that we will, in addition to any other remedies available to us at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond or other security.
12.Disclaimer of Warranties and Limitations of Liability
12.1 Disclaimer of Warranties WE PROVIDE THE SERVICES "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE." WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY INFORMATION PROVIDED BY USERS OF THE SERVICES OR ANY OTHER CONTENT, DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SITE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, Liberate MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. Liberate DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS. OR WITHOUT BREACHES OF SECURITY AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION OR CONTENT IN THE SERVICES, INCLUDING INACCURATE OR INCOMPLETE INFORMATION OR CONTENT.
12.2 General Limitation of Liability YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE THE SERVICES OR (B) $100. IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR MEDICAL MALPRACTICE OR NEGLIGENCE, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR". IN THE CASE OF A JURISDICTION THAT RESTRICTS LIMITATION CLAUSES, THIS LIMITATION SHALL BE APPLIED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE THAT MAY NOT BE LAWFULLY TERMINATED.
12.3 Risks You Assume WITHOUT LIMITING ANY OF THE OTHER RISKS WE HAVE DISCLOSED TO YOU IN THIS AGREEMENT, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES, INCLUDING ANY CONTENT YOU SUBMIT TO USE AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE AND ACCESS TO OUR SERVICES AND THE INFORMATION AND CONTENT CONTAINED THEREIN, AND ANY SITES LINKED THROUGH OUR SERVICES AND ANY DATA TRANSMITTED THROUGH OUR SERVICES IS AT YOUR SOLE RISK. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY TO YOU FOR OR RELATING TO ANY OF YOUR ACTIONS, INCLUDING THE PUBLICATION OF ANY INFORMATION YOU SUBMIT OR OUR EXERCISE OF THE RIGHTS YOU GRANT TO US WITH RESPECT THERETO.
12.5 Unauthorized Access; Lost or Corrupt Data WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES OR EQUIPMENT BY PERSONS USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING ROUTINE BACKUP PROCEDURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE SERVICES.
12.4 Other Users YOU ACKNOWLEDGE THAT OTHER USERS HAVE ACCESS TO AND ARE USING THE SERVICES AND THE ACTIONS OF SUCH OTHER USERS ARE BEYOND OUR CONTROL. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON THE SERVICES RESULTING FROM ANY USER'S ACTIONS OR FAILURES TO ACT.
You will obtain and maintain such policies of general liability, errors and omissions, and professional liability insurance with reputable insurance companies as is usually carried by persons engaged in your business covering the term of this Agreement.
14.Term; Modification; Suspension; Termination
14.1 Termination. We or you may terminate this Agreement at any time and for any reason without notice.
14.2 Modification. We may update or change the Services or the terms set forth in this Agreement from time to time and recommend that you review the Agreement on a regular basis. You understand and agree that your continued use of the Services after the Agreement has been updated or changed constitutes your acceptance of the revised Agreement. Without limiting the foregoing, if we make a change to the Agreement that materially affects your use of the Services, we may post notice or notify you via email or our website(s) of any such change.
14.3 Termination, Suspension or Amendment as a Result of Government Regulation. Notwithstanding anything to the contrary in this Agreement, we have the right, on notice to you, immediately to terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; or (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law, or would jeopardize its tax-exempt status.
14.4 Judicial or Administrative Procedures; Credentialing. We may terminate this Agreement immediately upon notice to you: (a) if you are named as a defendant in a criminal proceeding for a violation of federal or state law; (b) if a finding or stipulation is made or entered into that you have violated any standard or requirement of federal or state law relating to the privacy or security of health information is made in any administrative or civil proceeding; (c) you are excluded from participation in a federal or state health care program; or (d) you cease to be qualified to provide services as a health care professional, or we are unable to verify your qualifications as such.
14.5 Suspension of Access. We may suspend access to the Services by you immediately pending your cure of any breach of this Agreement, or in the event we determine in our sole discretion that access to or use of the Services by you may jeopardize the Services or the confidentiality, privacy, security, integrity or availability of information within the Services, or that you have violated or may violate this Agreement or our Policies and Procedures, or have jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the Services with the Provider ID assigned to you. Our election to suspend the Services shall not waive or affect our rights to terminate this Agreement as permitted under this Agreement.
14.6 Obligations after Termination. Upon termination of this Agreement, you will (i) cease all use of the Services, and (ii) remove all software provided under this Agreement from your computer systems. All provisions of this Agreement which, by their nature, should survive termination shall survive termination.
15.Choice of Law and Dispute Resolution
16.Amending Provider Information; Assignability of this Agreement; Assurances
16.1 Amending Provider Information. You are required to maintain the accuracy of all information associated with your Provider ID. We shall be entitled to rely on all information you submit to us, whether pursuant to Section 3.1 or this Section 16.1. You hereby agree to indemnify, defend, and hold harmless us and other users, and our and their respective affiliates, officers, directors, employees and agents, from and against any claim, cost or liability, including reasonable attorneys' fees arising from: (a) any action we take in reliance on any information, certification, assurance or instrument you provide to us; or (b) any action we take that complies with any request or direction you at any time make or made.
16.2 No Assignment. You may not assign or transfer this Agreement, in whole or in part, without our prior written consent, which may be withheld at our sole discretion. and any attempt to do so in violation of this section shall be null and void
No party to this Agreement shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations under this Agreement by reason of: (a) severe weather and storms; (b) earthquakes or other natural occurrences; (c) strikes or other labor unrest; (d) power failures; (e) nuclear or other civil or military emergencies; (f) acts of legislative, judicial, executive, or administrative authorities; or (g) any other circumstances that are not within its reasonable control.
Any provision of this Agreement that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of this Agreement, and such other provisions shall remain in full force and effect.
Any and all notices required or permitted under this Agreement shall be sent by U.S. or Canadian mail or fax transmission to the address provided below or to such other and different addresses as the parties may designate in writing. If you supply us with an electronic mail address, we may give notice by email message addressed to such address; provided that if we receive notice that the email message was not delivered, we will give the notice by mail or fax.
Liberate Ideas, Inc.
26 Park Street
Montclair, NJ 07042
Data Protection Officer (DPO): Collin Nordstrom
To you, at the current contact information on file with us at the time notice is given.
No term of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
21.Complete Understanding; Amendments
This Agreement contains the entire understanding of the parties with respect to the Services, and there are no other written or oral understandings or promises between the parties with respect to the subject matter of this Agreement other than those contained or referenced in this Agreement.
22.No Third-Party Beneficiaries
Except as expressly provided for in Sections 3.13 and 12, nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or permitted assigns any rights, remedies, obligations, or liabilities whatsoever.
Last Updated August 1st, 2019