TERMS OF SERVICE
Last updated 1/4/2020
These Terms of Service (“Agreement”) between you (“you”) and Springbuk, Inc. (“us” or “we”) governs your use and access of Springbuk®, a healthcare analytics and health intelligence SaaS software product (the “Software”) that we developed, own, maintain, enhance, update, and license and that is either distributed to you by a mutual contracted third party, such as a broker of record, agent of record, or clinic, (“Partner”) or to you directly by us or our affiliate. This Agreement supplements the terms and conditions set forth in any written or oral agreement by us directly or a Partner related to your access or use of the Software (the “Arrangement”), provided however, any terms governing PHI (as defined below) will be governed by the executed business associate agreement between you and us or you and your Partner.
For so long as you are licensed to use or access the Software pursuant to the terms of the Arrangement, you will have a limited, non-exclusive, nontransferable right and license to access and use the Software: (i) for the number of users (“Users Seats” as defined in the Arrangement) and number of employees/employee lives and for the term as set forth in the Arrangement, and (ii) solely pursuant to the terms of this Agreement and the Arrangement. We may terminate or suspend your license to use the Software if you violate this Agreement or the Arrangement, and in no event shall we have any obligation to allow you to access or use the Software under this license unless you are current on your payments to us or the Partner, as the case may be. Your license fee for the Software is included in your payment pursuant to the Arrangement, except as set forth below. You also agree that you have no right to access, view, or alter any source code or object code. If applicable, you must ensure that anyone with authorized access to the Software will comply with the provisions of this Agreement. You also understand that if one or more of your data suppliers/vendors/TPA/PBMcharges an initial, or ongoing fee to extract your data that you are responsible to pay this fee and you will make financial arrangements with that data supplier/vendor directly to satisfy such fee. We will not cover the costs of any data supplier/vendor fees imposed due to the importing of your data.
In the event that the Arrangement expires, terminates, or is terminated by any party thereto for whatever reason prior to the expiration of the term, your rights to use the Software will end unless you enter into an agreement with us to continue to use of the Software. In such an event, the license fee that we charge to you for the Software for the remainder of the term shall be as agreed between you and us. Further, you also agree that we may terminate your account at any time for your violation of any of the provisions of this Agreement. At the termination of this Agreement for any reason, you shall immediately discontinue use of the Software.
You may only make normal use of the Software for its intended use in connection with any services or products outlined in the Arrangement. Under no circumstances shall the Software or any containing information be used for individual or personal use; any and all uses of the Software for your employer or services provider use based on applicable law. You may not use the Software for any purpose prohibited by this Agreement or by applicable law. You may not transfer, assign, or sublicense your license or any of your rights under this Agreement, in whole or in part, to any other person or entity, or allow any other person or entity to use the Software, except as relating to their business relationship with you. You shall not permit others to (i) translate, port, modify, alter, revise decompile, disassemble, reverse engineer, create derivative works or attempt to derive the source code of the Software, or (ii) use or permit the use of the Software for any unlawful activity. All notices of proprietary rights, including trademark and copyright notices, must appear on all permitted reports derived from the Software. We may terminate your license to use the Software if you violate any provision in this Agreement. You may not use the Software if you are (i) under 18 years of age, (ii) a direct competitor of us investigating the Software for competitive research, or (iii) otherwise using the Software for a harmful, malicious, disruptive, or unlawful purpose.
We own and retain all intellectual property rights in the Software and nothing in this Agreement or the Arrangement may be construed to convey to you any rights in the Software, except the limited license described above. Our Software and the information contained therein is our property and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Use of the Software does not give you ownership of any intellectual property rights in any of the content, documents, or other materials you access. You may not copy, redistribute, or publish any part of the Software unless we expressly permit you to in this Agreement.
UNAUTHORIZED USE, COPYING, REPRODUCING, STORING, MODIFYING, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING, REMOVING OR ALTERING, OR ANY OTHER MISUSE OF ANY OF THE CONTENT IS STRICTLY PROHIBITED.
You and/or the Partner retain and own all rights, title, and interest in, and to, the data, information, and material that you upload or deliver to us for use with the Software or have permission to deliver to us (“Your Content”), as provided in the Arrangement. We reserve the right in our sole discretion to refuse to accept, to remove, or to delete any of Your Content that we determine is unlawful, offensive, or otherwise inappropriate. You grant to us a limited, non-exclusive, perpetual, right and license to use Your Content as required in connection with your use of the Software and also grant us a limited license to Your Content (including PHI, if permitted by an executed business associate agreement between you and us) that has been de-identified to research, analyze, and report on (to you, to our other customers, to potential customers, and to other third parties) health care issues, and to improve upon and market our Software and health care analytics business. If you request within ninety (90) days prior to the expiration of the Arrangement, we will return Your Content to you within ninety (90) days after receipt of a one-time data retrieval fee of $7,500 payable to us. The retrieval fee is our best estimate for the costs associated with the administrative burden of returning Your Content. You agree that this fee is fair and reasonable. If you do not require that Your Content be returned, there is no fee for the destruction of Your Content and we will destroy Your Content upon request within a reasonable time.
Your Content and any other personal information you provide to us will be maintained and used by us subject to our privacy statement located for reference at www.springbuk.com/privacy notice. If you are a covered entity under the Health Insurance Portability and Accountability Act of 1996 and related regulations (“HIPAA”), and you do not have a business associate agreement with the Partner (who may have a subcontractor business associate agreement with us), you will sign our standard business associate agreement relating to our use of Your Content. If you are not a covered entity, then you represent and warrant that you are not bound by, or aware of, any legal or contractual restrictions which would prohibit or limit your ability to receive or access the protected health information (“PHI”), as defined in HIPAA, through the Software and, in addition, you (i) have full authority from any covered entity and have provided appropriate disclosures to, and received appropriate consents from, or through, all covered entities regarding the receipt of PHI; (ii) have received prior authorization from each covered entity to receive PHI of its members; and (iii) have executed a valid business associate agreement with each covered entity in compliance with all applicable laws and regulations.
We, and our third-party partners related to the Software, warrant that the Software, in its original, unaltered, unmodified, un-customized form, shall conform and operate in all material respects with the specifications and descriptions set forth in the Software’s documentation. We agree that Your Content to which we have access through the Software is proprietary to you and we (i) will not use Your Content for any reason other than as permitted by the license that you have granted to us above and to provide you with use of the Software (ii) will use commercially reasonable means to protect Your Content from improper access by any third party, as provided in this Agreement. WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WE, AND OUR THIRD-PARTY PARTNERS RELATED TO THE SOFTWARE, WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE, AND OUR THIRD-PARTY PARTNERS RELATED TO THE SOFTWARE, WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES OR OTHER AMOUNT IN EXCESS OF THE CUMULATIVE FEES ACTUALLY RECEIVED BY US FROM YOU OR A PARTNER THAT WAS PAID TO US FOR USE OF THE SOFTWARE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY (I.E., THE FOREGOING SHALL EXCLUDE THE PARTNER’S OTHER REVENUE AND THEIR PROFIT RELATING TO THE SOFTWARE). THE FORGOING PARAGRAPH IS NOT INTENDED TO LIMIT OR SUPERSEDE ANY LIABILITY BETWEEN YOU AND US UNDER AN EXECUTED BUSINESS ASSOCIATE AGREEMENT.
Any medical information, or extrapolation from that medical information, contained in the Software is, at best, general and nothing within the Software should be construed as offering medical advice or practicing medicine. This Software, and any content therein, cannot be used as a substitute for the advice of a medical professional. We are not healthcare providers and we do not take any responsibility for the results or consequences of any attempt to use or adopt any of the information presented in our Software. YOU ARE USING THE SOFTWARE AT YOUR OWN RISK. Do not interpret, or rely on, anything we communicate as medical advice. Although the Software may reference medical topics, we make no warranty that any of the content is accurate, up to date, or error free. Even if a statement we make is accurate, it may not apply to you.
The content of our Software, such as text, graphics, images, or information obtained are for informational purposes only. We do not recommend or endorse any specific tests, products, formulary changes, insurance plan modifications, procedures, opinions, or other information that may be mentioned in the Software. Reliance on any information provided by us, our employees, or others appearing in our Software is solely at your own risk. We do not take any responsibility for the results or consequences of any attempt to use or adopt any of the information presented in our Software.
We will defend, indemnify, and hold you harmless from and against all third-party claims, and accompanying losses, liabilities, costs, or expenses, including reasonable attorneys’ fees (collectively, “Claims”) arising out of, or in connection with, any allegation that the Software infringes or violates any third party’s patent, copyright, trade secret, or other intellectual property rights, except to the extent such allegation arises out of or relates to the use, modification or combination of the Software in a manner other than as expressly authorized by this Agreement. You must promptly notify us in writing of any indemnifiable Claim. In addition, you must allow us to control the defense or settlement of the Claim, and you must reasonably cooperate in our defense of any such Claim.
In the event the Software becomes, or is in our reasonable discretion likely to become, the subject of any injunction preventing its use as contemplated in this Agreement, or we reasonably determine that the Software is likely to infringe or violate any third party’s intellectual property rights, we may, at our option, (i) procure for you the right to continue to use such Software in the manner permitted by this Agreement, or (ii) replace or modify the Software so that it is non-infringing while continuing to perform all of the material functions of such Software. This Section 3 states our sole liability and your exclusive remedy for infringement claims with respect to the Software.
This Software includes CPT® and/or CPT® Changes which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Medical Association (“AMA”), 515 North State Street, Chicago, Illinois, 60654. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements. The foregoing is only applicable to CPT.
You are prohibited from publishing, distributing via the Internet or other public computer-based information system, creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party the CPT coding, or a copy or portion of the CPT coding. CPT is licensed from the AMA and the license granted is a nontransferable, nonexclusive license, for the sole purpose of internal use by the Software within the United States. Any right to provide future updates to coding for use in the Software is dependent on continuing contractual relationship between our partners, contractual relationships, and the AMA.
CPT is a registered trademark AND COPYRIGHTED BY the American Medical Association. The AMA does not directly or indirectly Practice medicine or dispense medical services. The AMA assumes no liability for data contained or not contained herein. To the extent possible under the applicable laws, CPT coding is provided “as is” without any liability to the AMA, including without limitation, no liability for consequential or special damages, or lost profits for sequence, accuracy, or completeness of data, or that it will meet your requirements, and that the AMA’s sole responsibility is to make available replacement copies of the CPT coding if the CPT coding is not intact; and that the AMA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in CPT coding.
The responsibility for the content of any “National Correct Coding Policy” included in this product is with the Centers for Medicare and Medicaid Services and no endorsement by the AMA is intended or should be implied. The AMA disclaims responsibility for any consequences or liability attributable to or related to any use, nonuse or interpretation of information contained in this product.
You shall maintain the confidentiality of the Software and its contents. You shall not disclose, permit to be disclosed, or otherwise resell or transfer, with or without consideration, all or any portion of the Software or any data output from the Software that contains tags or codes obtained from the Software to any third party, except that you may disclose the information contained in the Software to your consultants or agents (if authorized by your business associate agreement) for the purpose of assisting or advising yourself so long as such person or entity executes a nondisclosure agreement, in a form consistent with the language contained herein or other third party confidentiality agreements, which will prohibit such consultant or agent from using such Software (other than to assist or advise you) and from disclosing such information to any third party. Such nondisclosure agreement may provide that our partners are a third-party beneficiary of the rights here under.
Notwithstanding the foregoing, we acknowledge and agree that if you are a municipality or governmental entity subject to the requirements of an open door or public records request law, you may disclose such information as we mutually determine you are required to disclose under state or federal public law, so long as the disclosed information is not proprietary to us.
The Software contains PHI and other personal information to which you have represented to us that you are authorized to access pursuant to a business associate agreement. As such, you are responsible for securing your personal device and your access to information to prevent unauthorized third persons from accessing any information via the Software. You will be responsible for all activities taken during use of the Software using your access information. You must exit from the Software after each use to ensure no information is available after you end a session. You are also responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your password or account. It is your sole responsibility to (i) protect your username and password to ensure their use only by you; and (ii) promptly inform us of any need to deactivate a password. You agree not to provide your username in a manner that allows for any use of data mining, robots, or similar data gathering and extraction tools or any downloading or copying of account information for the benefit of another party. We will not be liable for any losses or damages arising from your failure to comply with this Section 6 or the Agreement.
Further, you will not falsely state or otherwise misrepresent your identity or affiliation with another person or entity to obtain access to the Software or to access another person’s information. Except where expressly authorized by law, e.g., in the case where you are an authorized personal representative for another person, you will not use another person’s access information to access the Software. Violation of this provision may subject you to civil and/or criminal penalties.
As part of your access to the Software, you may be asked to provide certain information, including your name, email address, and a password. You agree that the information you provide is true, complete, current, and accurate and that you will maintain and update this personal information as necessary. If you believe that your access information has been compromised or become aware of any other security incident involving the Software or your account, you agree to immediately notify us.
For non-material modifications to this Agreement, we reserve the right, at our sole discretion, to change, modify, add, or remove portions of this Agreement at any time by posting such modified Agreement on our website, through our Software, or both. This Agreement will include the most recent date of revision and will be effective immediately upon posting unless otherwise specified. In the event of a material change to this Agreement, as defined within this section, we will attempt to notify you directly via a message sent to the e-mail address you provided upon registration or through the use of a notification in or through the Software; a material change to this Agreement would be any change affecting any price, length of this Agreement, the permitted uses under this Agreement, confidentiality of Your Content under this Agreement, any limitation of liability listed herein, or the indemnification obligations. You hereby acknowledge and agree that you will review this Agreement periodically for any changes and review the date of last revision at the beginning of this Agreement. If you are dissatisfied with the Software, then you agree that your sole and exclusive remedy is to discontinue any use of the Software.
This Agreement, together with the Arrangement, represents the complete and exclusive statement of the agreement with respect to your use of the Software and supersedes any proposal, prior agreement, or license, oral or written, and any other communications relating to the Software; provided, however, that to the extent that there is a conflict between the terms of this Agreement and the Arrangement, this Agreement shall govern and control with respect to the Software. Notwithstanding the foregoing this Agreement does not supersede those conflicting rights and obligations under the any Master Subsection and Services Agreement between us and Partner.
Nothing contained in this Agreement, and no action taken pursuant to the provisions of this Agreement, shall create or shall be construed to create a trust of any kind, or a fiduciary relationship between you and us or any other person or entity. This Agreement does not supersede or amend any confidentiality agreement, non-solicitation agreement, non-competition agreement, or any other similar agreement between you and us, including, but not limited to, any restrictive covenants contained in such agreements.
We are an intended third-party beneficiary of the provisions and covenants you are making with respect to the Software under the Arrangement. This Agreement, however, does not grant any rights or remedies to any third party, and no other third party is a third-party beneficiary of this Agreement or the Arrangement.
If you are accessing or using the Software on behalf of an entity, you represent and warrant that you have the authority to bind that entity to the Agreement and by accepting this Agreement, you are doing so on behalf of that entity (and all references to “you” in the Agreement refer to that entity).
In order to access and use the Software’s application programming interface (“API”), you must obtain an API client by registering for an account and agreeing to and complying with the terms of service of the API terms and conditions or other written agreement with us relating to access to and use of the API.
We operate and control the Software from our offices in the United States. We make no claims that the Software or its contents is appropriate or may be downloaded outside of the United States. Access to the Software may not be legal by certain persons or in certain countries. You may not access the Software or utilize the data from outside the United States, if you do it is at your own risk and are responsible for compliance with the laws of your jurisdiction.
If any provision of the Agreement is found to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall be enforced to the fullest extent permitted by law. No waiver or failure to assert any provision of the Agreement shall be valid unless in writing and signed by an officer of us. We may assign its rights and duties under the Agreement to any party, at any time, without notice. We reserve all rights not expressly granted in this Agreement.
As part of your use of the Software, you may receive notifications, alerts, emails, and other electronic communications from us or sent on behalf by a third-party service. We may need to provide you with certain communications, such as service announcements and administrative messages; you agree to the receipt of these communications. Any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
This Agreement is governed by the substantive laws of the State of Indiana (excluding its choice of law rules). You consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Indiana. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of Indiana in connection with any such dispute including any claim involving us or our affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers, and content providers. Nothing in this section shall be interpreted to constitute a waiver of any sovereign immunity, limitations on damages, notice requirements, or statutes of limitation afforded to a municipality or governmental entity pursuant to applicable state according to a court with competent jurisdiction.