Terms and Conditions
The Empire Services Agreement (the “Agreement”) consists of these terms and conditions (the “Terms and Conditions”) and one or more Order Forms. These Terms and Conditions shall apply to each Order Form executed by Empire and Client.
- DEFINITIONS.
1.1 “Agency Management Software” means Empire’s proprietary clinical Quality Assurance Performance Improvement software licensed to Client for use in conjunction with the Application Services.
1.2 “Authorized Users” means persons authorized by Client to read and use the Services and who possess an authorized user ID and password.
1.3 “Application Services” means hosting and operating a Empire Application to provide Client with access to and use of such Empire Application over the Internet.
1.4 “Empire Application” means all software and databases used by Empire to provide the Agency Quality Assurance Performance Improvement software to Client.
1.5 “Content” means all Client Confidential Information, software applications, text, pictures, sound, graphics, video, and other data transmitted by Authorized Users using the Services.
1.6 “Licensed Software” means the Agency Management Software, or the Private Duty Software licensed by Client under an Order Form.
1.7 “Order Form” means the description, in either electronic or written form, of the Services to be provided by Empire to Client that is executed by Client and Empire and expressly refers to this Agreement. The parties acknowledge and agree that the terms and conditions of any such Order Form shall not in any way modify, amend, or supersede the terms and conditions of this Agreement.
1.8 “Professional Services” shall mean any training, consulting, data migration, additional site and location setup, conversion, integration, implementation and/or other services provided by Empire to Client, with associated fees for such services as described explicitly in an Order Form.
1.9 “Services” means the Application Services, Professional Services and Support Services.
1.10 “Support Services” means the provision of technical support to Authorized Users via email and telephone during Empire’s regular business hours, in accordance with Empire’s then-current technical support policies, and any other support services set forth in an Order Form.
- SERVICES.
2.1 Services. Empire shall use commercially reasonable efforts to provide the Services in accordance with the terms and conditions of this Agreement. In the event of any conflict between the body of this Agreement and an Order Form, the terms and conditions set forth in the body of this Agreement shall govern. Empire shall not be obligated to provide any particular service to Client, including without limitation installation, additional site or location setup, implementation, training and data migration services, unless such service is explicitly described in a fully executed Order Form.
2.2 Client Operating Environment. Unless otherwise explicitly set forth in an Order Form, Client shall, at its sole expense, be responsible for procuring, installing and maintaining the telecommunications services, hardware (including point of care devices on which the Licensed Software will be installed by Client) and software needed to access the Application Services that meets Empire’s then-current telecommunications, hardware and software specifications (the “Client Operating Environment”). Client shall be solely responsible for the security of the Client Operating Environment.
2.3 Empire Application Changes. Empire may from time to time develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Application Services (“Empire Application Changes”). Client hereby authorizes Empire to implement such Empire Application Changes for use with the Application Services, provided that such Empire Application Changes do not have a material adverse effect on the functionality or performance of the Application Services. When commercially practicable, Empire shall notify Client in advance of the implementation of any material Empire Application Changes.
2.4 Cooperation; Access. Client acknowledges that the successful and timely rendering of the Services shall require the good faith cooperation of Client. Empire shall not be liable for any failure to perform the Services that arises from Client’s failure to cooperate with Empire.
2.5 Special Terms. The Application Services provided to Client shall be subject to any specific terms or limitations set forth in the Order Form.
2.6 Business Associate Agreement. By executing an Order Form under which Empire will provide Services involving the use of Protected Health Information (as defined in HIPAA), Empire and Client hereby agree to be bound by Empire’s standard Business Associate Agreement set forth as Exhibit A attached hereto.
3. USE OF THE APPLICATION SERVICES.
3.1 Application Service. Empire hereby grants to Client a nontransferable, non-exclusive, license during the term of the applicable Order Form, to allow Authorized Users to access and use, over public and private networks, the Application Services for its homecare and hospice service business.
3.2 Licensed Software. Empire hereby grants to Client, a nontransferable, nonexclusive, license during the term of an Order Form under which Client purchases access to the Application Services to be used in conjunction with the Licensed Software. Client shall have the right to make additional copies of the Licensed Software for such use. Client shall be responsible for its Authorized Users use of the Licensed Software in compliance with the terms of this Agreement.
3.3 Restrictions.
3.3.1 Empire owns all right, title and interest in and to the Application Services, Empire Application and Licensed Software. The Application Services, Empire Application and Licensed Software are provided to Client for use only as expressly set forth in this Agreement, and Client will not use the Application Services, Empire Application or Licensed Software in whole or in part for any other use or purpose. Client will not, and will not allow any third party to (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Empire Application or Licensed Software by any means, or disclose any of the foregoing; (ii) except as expressly set forth in this Agreement, provide, rent, lease, lend, or use the Empire Application or Licensed Software for timesharing, subscription, or service bureau purposes; or (iii) sublicense, transfer or assign the Empire Application or Licensed Software or any of the rights or licenses granted under this Agreement.
3.3.2 Client acknowledges and agrees that the Application Services and any necessary software used in connection with the Application Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Client further acknowledges and agrees that the content or information presented to the Client through the Application Services may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except where expressly provided otherwise by Empire, nothing in the Application Services or the Agreement shall be construed to confer any license to any of Empire’s (or its third party manufacturer’s, author’s, developer’s, vendor’s, and service provider’s (“Third Party Vendors”), intellectual property rights, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks of QAPI360 and other Empire service marks, logos and product service names are marks of Empire (the “Empire Marks”). Client agrees not to display or use the Empire marks, or the marks of any Third Party Vendor, in any manner without the owner’s express prior written permission. Empire reserves the right to subcontract any or all services provided hereunder to third parties.
3.3.3 Client shall not use the Application Services for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law, including without limitation, those laws regarding stolen materials, obscene materials or child pornography. Client shall not transmit Content over the Application Services that infringes upon or misappropriates the intellectual property or privacy rights of any third party.
3.3.4 Empire shall provide a password allowing Client to give each Authorized Users a user name and password to access the Application Services. Client shall establish and maintain lists of Authorized Users and comply with Empire’s procedures for verification of Authorized Users, revision of access rights to Application Services, security, and assignment and use of passwords. Client shall notify Empire immediately in writing if the security or integrity of a password or authority level has been compromised. Client shall be fully responsible, and indemnify and hold Empire harmless, for any charges, costs, expenses, and third party claims that may result from unauthorized use of or access to the Application Services using Client’s user names.
3.3.5 Client is responsible for its use of the Application Services. Empire may, from time to time, require a person to agree to Empire’s then-current Terms of Services for the Application Service (or any part thereof) prior to permitting such person to use the Application Services. Client hereby authorizes Empire to prominently display within the Application Services, Empire’s then-current Privacy Policy and Terms of Service. Empire shall be free to terminate an individual’s access to the Application Services if it determines, in its sole discretion, that such individual’s use of the Application Services is in breach of Empire’s then-current Terms of Service, or could harm Empire’s reputation.
3.3.6 Regardless of whether Empire requires its Authorized Users to agree to Empire’s then-current Terms of Service, Client agrees that it is responsible for developing and implementing appropriate policies for use of the Application Services by such persons including policies regarding such persons compliance with the terms hereof.
3.3.7 Empire is not responsible for Client’s access to or use of patients’ protected health information (as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)) stored within the Application Services. Any such access or use shall be in accordance with all applicable laws, rules and regulations, including, without limitation HIPAA.
3.4 Client Content. Client hereby grants to Empire a worldwide, non-exclusive, fully paid-up license to use, copy, modify, enhance, display, publish, distribute, create derivative works of and otherwise use the Content in any manner reasonably necessary to perform the Services. Client represents and warrants that it has all rights necessary to grant Empire the foregoing license. Client further represents and warrants that Client owns all right, title and interest in and to the Content or has a license granting it the rights necessary to permit it to grant the foregoing license. If Client licenses any Content, it shall not provide such Content to Empire until it provides Empire with a copy of the license.
- PAYMENTS.
4.1 Fees. Client agrees to pay Empire for the performance of the Services in accordance with the rates and fees specified in the Order Form via ACH or Credit/Debit Card auto debit initiated by Empire. Following the first year of the term, on each one-year anniversary of an Order Form, Empire may adjust the rates and fees set forth in such Order Form. Empire shall give Client not less than thirty (30) days written notice of such increase prior to its effective date. Unless otherwise set forth in the Order Form, all payments shall be made in United States dollars no later than thirty (30) days after the date of invoice. All payments not received when due shall accrue interest at a rate per month of one and one-half percent (1.5%) or seventy-five dollars ($75) per month, whichever is greater.
4.2 Expenses. Client shall reimburse Empire for its out-of-pocket travel expenses to include food, lodging and incidentals. Transportation will be reimbursed to Empire by Client at the current Internal Revenue Service (IRS) mileage rates or at current coach airfare rate for providing services to Client at facilities of Client. Client will bear the travel and other out-of-pocket expenses incurred by its employees and other designees who receive training at Empire’s facilities.
4.3 Taxes. The fees payable under this Agreement shall not include taxes or duties now in force or enacted in the future imposed on the transaction and/or the delivery of the Services, all of which Client shall be responsible for and pay in full.
- TERM AND TERMINATION.
5.1 Term. Unless earlier terminated in accordance with its terms, each Order Form commences on the Effective Date and remains in effect for the Initial Term (12 months) from the Billing Term Start Date (the “Initial Term”). Unless otherwise set forth in an Order Form, upon the expiration of each Initial Term, the term of an Order Form will renew automatically for additional terms of one (1) year each (“Renewal Term”), and together with the Initial Term, (the “Term”), unless either party notifies the other party, at least ninety (90) days prior to the end of the then-current Term, that it has elected to terminate such Order Form, in which event such Order Form will terminate at the end of such Term. Unless earlier terminated in accordance with its terms, this Agreement will expire on the date the last Order Form then in effect expires or is terminated pursuant to the terms and conditions set forth in this Agreement.
5.2 Termination for Cause. Except as otherwise provided herein, upon the material breach of the other party, either party may terminate this Agreement or the applicable Order Form, if such breach remains uncured for thirty (30) days following written notice to the breaching party. Notwithstanding the foregoing, if the breaching party certifies to the other party in writing within the thirty (30) day period that a curable breach (other than a breach relating to the payment of fees owing under the Agreement) cannot reasonably be cured in thirty (30) days but that it will be remedied by a specified date (which date may be no later than is commercially reasonable under the circumstances), the termination will be effective on the date specified in the certification if the breach has not been remedied by that date.
5.3 Suspension of Services. In the event any payment hereunder is not received by Empire within thirty (30) days of the due date, Empire may, in addition to any other remedies available to it hereunder or at law, suspend access to Support Services and/or the Application Services in whole or in part under any Order Form to which Client is a party.
5.4 Effect of Termination. Upon the expiration or termination of an Order Form or this Agreement, (i) Empire will terminate Client’s access to the Application Services under affected Order Forms and will cease the provision of all Services under such Order Forms and (ii) to the extent Empire has stored patient and clinical data as part of the Application Services provided under the affected Order Forms, it will provide such patient and clinical data to Client pursuant to its then-current data retrieval options, which are currently (i) the right to remotely access and view patient and clinical data on an annual basis. The provision of such Professional Services shall be subject to Client’s execution of an Order Form and payment of applicable then-current fees.
- WARRANTIES; DISCLAIMER
6.1 Empire hereby warrants that during the term of an Order Form, the Application Service provided thereunder will perform, in all material respects, in accordance with its then-current published documentation. In the event of any reproducible failure of the Application Services to perform in a material respect to such documentation, Empire will, as Client’s sole and exclusive remedy for breach of the warranty set forth in this Section 6.1, use commercially reasonable efforts to repair the applicable Application Service.
6.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 6.1, EMPIRE MAKES NO WARRANTIES REGARDING THE SERVICES, AND EMPIRE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR SECURITY. EMPIRE DOES NOT WARRANT THAT ACCESS TO OR USE OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE APPLICATION SERVICE WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. EMPIRE DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. The provisions of this Section allocate the risks under this Agreement between Empire and Client. Empire’s pricing reflects this allocation of risk and the limitation of liability specified herein.
- INDEMNITY.
7.1 Infringement. Empire shall defend, indemnify and hold harmless Client, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) suffered or incurred by them in connection with a third party claim arising out of any actual or threatened claim that the Application Services infringes upon or misappropriates any copyright, patent, trademark, trade secret, or other proprietary or other rights of any third party. Empire shall have no obligation to indemnify Client to the extent the alleged infringement arises out of (i) the use of the Application Services in combination by Client with other data products, processes or materials not provided by Empire and such infringement would not have occurred but for Client’s combination; or (ii) the Content. Should the Application Services as used by Client become, or in Empire’s opinion be likely to become, the subject of an infringement claim, Empire shall at its option and sole expense either: (i) procure for Client the right to continue to use the Application Services as contemplated hereunder, or (ii) modify the Application Services to eliminate any such claim that might result from its use hereunder or (iii) replace the Application Services with an equally suitable, compatible and functionally equivalent non-infringing Application Services at no additional charge to Client. If none of these options is reasonably available to Empire, then this Agreement may be terminated at the option of either party hereto without further obligation or liability on the part of either party hereto except that Empire agrees to promptly refund to Client the pro-rata portion of any fees prepaid by Client amortized on a straight-line basis based over the term of this Agreement.
7.2 Client Indemnity. Client shall defend, indemnify and hold harmless Empire, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all Losses suffered or incurred by them in connection with a third-party claim arising out of (i) a breach by Client of this Agreement, (ii) Client’s use of the Licensed Software or Application Services or (iii) Client’s failure to comply with laws, rules, regulations or professional standards.
7.3 Mechanics of Indemnity. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
- CONFIDENTIAL INFORMATION.
8.1 Except as expressly permitted in this Section 8, no party will, without the prior written consent of the other party, disclose any Confidential Information of the other party to any third party. Information will be considered Confidential Information of a party if either (i) it is disclosed by the party to the other party in tangible form and is conspicuously marked “Confidential”, “Proprietary” or the like; or (ii) (a) it is disclosed by a party to the other party in non-tangible form and is identified as confidential at the time of disclosure; and (b) it contains the disclosing party’s customer lists, customer information, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations. In addition, notwithstanding anything in this Agreement to the contrary, the terms of this Agreement will be deemed Confidential Information of Empire. Empire may, in any manner, publicly announce the relationship with Client. Empire may also develop, with customer review and approval, a business use case that may be used for Empire marketing purposes.
8.2 Other than the terms and conditions of this Agreement, information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
8.3 Each party will secure and protect the Confidential Information of the other party (including, without limitation, the terms of this Agreement) in a manner consistent with the steps taken to protect its own trade secrets and confidential information, but not less than a reasonable degree of care. Each party may disclose the other party’s Confidential Information where (i) the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other party with adequate time for such other party to seek a protective order; (ii) if in the opinion of counsel for such party, disclosure is advisable under any applicable securities laws regarding public disclosure of business information; or (iii) the disclosure is reasonably necessary and is to that party’s, or its Affiliates’, employees, officers, directors, attorneys, accountants and other advisors, or the disclosure is otherwise necessary for a party to exercise its rights and perform its obligations under this Agreement, so long as in all cases the disclosure is no broader than necessary and the person or entity who receives the disclosure agrees prior to receiving the disclosure to keep the information confidential. Each party is responsible for ensuring that any Confidential Information of the other party that the first party discloses pursuant to this Section 8 (other than disclosures pursuant to clauses (i) and (ii) above that cannot be kept confidential by the first party) is kept confidential by the person receiving the disclosure.
- LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EMPIRE AND ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO CLIENT, AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES AND LOST PROFITS) THAT RESULT FROM OR ARE RELATED TO THIS AGREEMENT, EVEN IF EMPIRE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, EMPIRE’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES, COSTS, AND EXPENSES SHALL NOT EXCEED THE AMOUNTS RECEIVED BY EMPIRE FROM CLIENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
- GENERAL PROVISIONS.
10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the choice of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any contract dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Ontario, California, and the then current rules and procedures of the Judicial Arbitration and Mediation Services (JAMS) by one (1) arbitrator appointed by JAMS. The arbitrator shall apply the law of the State of California, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any party. In the event that any arbitration, action or proceeding is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. Notwithstanding the foregoing, nothing herein shall preclude either party from seeking injunctive relief in any state or federal court of competent jurisdiction without first complying with the arbitration provisions of this Section.
10.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be deemed omitted and the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
10.3 Waiver. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.4 Assignment. This Agreement shall be binding upon the parties’ respective successors and permitted assigns. Client shall not assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of Empire, which consent shall not be unreasonably withheld. This Agreement, and the rights and obligations herein, may be assigned by Empire to any person or entity without the written consent of the Client.
10.5 Permission for Data Aggregation. Client agrees that Empire may utilize data that comes into the possession of Empire by virtue of its performance under this Agreement for the purpose of aggregating statistics that may be helpful for Client’s benefit, for research and trend analysis, and for other lawful purposes, as determined by Empire. Empire shall only aggregate data in a manner that is fully compliant with HIPAA and applicable legislation regarding private personal information. The data utilized or shared pursuant to this provision that is not directly connected to the provision of Services under this Agreement shall not contain any Protected Health Information, as such term is defined by HIPAA.
10.6 Excluded Entity. Each party represents that it and its employees, that perform services in connection with the business relationship between the parties is not presently debarred, suspended, ineligible, or excluded from participation in any state or federal health care programs. Each party will periodically check itself and its employees for listing within applicable federal and state databases and will notify the other party if it discovers that it or any of its employees has become so debarred, suspended, ineligible, or excluded (such a person, an “Excluded Person” or such an entity, an “Excluded Entity”). Neither party shall allow an Excluded Person to provide services to the other party. If a party becomes an Excluded Entity, the other party may terminate its relationship with the Excluded Entity.
10.7 Independent Contractors. Empire is acting in the performance of this Agreement as an independent contractor. None of Empire’s employees, including any contractor it employs, who are working in connection with the provision of the Services under this Agreement is an employee of Client.
10.8 Notices. All notices required to be given under the terms of this Agreement or which any of the parties hereto may desire to give hereunder, shall be in writing, shall be delivered via one of the following methods, and shall be deemed to have been received: (i) on the day given delivered by hand (securing a receipt evidencing such delivery); or (ii) on the second day after such notice is sent by a nationally recognized overnight or two (2) day air courier service, full delivery cost paid; or (iii) on the fifth day after such notice was mailed, registered mail, prepaid, return receipt requested, and addressed to the party to be notified at the addresses set forth in the Order Form.
10.9 Survival. All provisions of Sections 3.3.1, 3.3.2, 4, 6.2, 7, 8, 9 and 10 of this Agreement shall survive the expiration or termination of any Order Form or any termination of this Agreement.
10.10 Legal Fees. In the event of any proceeding or lawsuit brought by Empire or Client in connection with this Agreement, the prevailing party shall be entitled to recover its costs and legal fees (including, but not limited to, allocated costs of in- house staff counsel) and court costs.
10.11 Force Majeure. Neither party will be liable to the other for failure to meet its obligations under this Agreement where such failure is caused by events beyond its reasonable control such as fire, failure of communications networks, riots, civil disturbances, embargos, storms, acts of terrorism, pestilence, war, floods, tsunamis, earthquakes or other acts of God.
10.12 Subsequent Modifications. No amendment, alteration or modification of this Agreement shall be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
10.13 Entire Agreement. This Agreement and any exhibits and schedules attached hereto, constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in this Agreement.