License Agreement

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License Agreement

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IMPORTANT -- READ CAREFULLY:  BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS LICENSE AGREEMENT.  YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THE TERMS OF THE AGREEMENT.

This End-User License Agreement ("Agreement") is a legal contract between you (either an individual or a single business entity) (hereinafter “Licensee”) and Technology Solutions, Inc., d/b/a TSI (hereinafter “Licensor”), for the software product purchased, which includes computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (hereinafter the "Software Application").  Licensee has voluntarily agreed to enter into this Agreement, including all exhibits attached hereto by selecting the electronic “It is understood that I have reviewed the License Agreement and agree to the terms” checkbox on prior to installing the Software Application. 

BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION.

LICENSE TERMS

1.Grant of License. Licensor hereby grants to Licensee, upon the terms and conditions herein contained and receipt of payment, a non-exclusive, non-transferrable, non-assignable, non-sublicenseable, limited, revocable license to install and use the Software Application.  Following acceptance of this Agreement and receipt of payment, you may install and execute and use the number of registered copies of the Software Application which you have paid for.  If you are installing this Software Application for the thirty (30) day trial period, your license to use this Software Application expressly expires thirty (30) days from the date of installation.  If you have purchased a fully licensed version of the Software Application, or agree to purchase a fully licensed version of the Software Application after the expiration of the trial period, TSI hereby expressly grants you a one-year license to use the Software Application, subject to the terms and conditions contained herein.  If you already purchased a one-year license, you are entitled to receive a full refund of any payment made for the Software Application by so requesting and returning any media and materials to TSI within fifteen (15) days after the date of payment.  In the event you request a refund, you agree to destroy, remove, or uninstall all copies of the Software Application and all of its component parts, and TSI may suspend or deactivate your use of the Software Application with or without notice. 

2.Limitations. It is understood that Licensor does not render any medical or legal advice in support of the use of the Software Application and any use thereof is understood to be done under the sole control, determination, and responsibility of the medical staff and/or physician using the Software Application.  It is Licensee’s full responsibility to have a working knowledge of the Documentation Guidelines and CPT.  Furthermore, Licensee assumes full responsibility for the accuracy of the input of data and any subsequent output of data from the Software Application based on the inputted data.  It is understood that Licensee will keep current with respect to any changes in the CMS/AMA guidelines and is responsible for any and all data inputted and generated using the Software Application.  Licensor will use its best efforts to furnish updates to the Software Application within a reasonable period of time to address such changes in the CMS/AMA guidelines.

3.Use on a PC. Licensee may install the single registered copy on one hard disk or other storage device for one computer, and Licensee may access and use the Software Application at that location so long as only one copy of the Software Application is in operation.  If you are a private business rather than an individual, you may authorize the personnel associated with your business to use the Software Application, but only one person at a time, on one computer at a time.  The primary user of the computer on which the Software Application is installed may make a second copy for his or her exclusive use on a backup or portable computer, so long as each registered copy of the Software Application is used on only one computer at a time.

4.Use on a Network. Licensee may store, install and access the registered version of the Software Application through an internal network, provided that Licensee must obtain and pay for a license for each workstation that will access the Software Application through the network.  For example, if 5 different workstations will access the Software Application on the network, each workstation must have its own paid-up license, regardless of whether the workstations use the Software Application at different times or concurrently.

5.License Exclusions. Except as otherwise provided herein, Licensee shall not: (a) transfer, rent, sublicense or otherwise distribute any portion or components of the Software Application to any third party; (b) modify, disassemble, decompile or reverse engineer the object code of the Software Application (except as permitted by applicable law) nor permit any third party to do so; (c) use the Software Application in any manner to provide service bureau, leasing, time-sharing or other computer services to third parties; (d) export the Software Application in violation of U.S. export restrictions; or (e) acquire any license, right, or interest to any TSI trademark or service mark.  TSI reserves all other software license rights not expressly granted.

6.Taxes. All sales, use, value-added, withholding or other taxes (" Taxes ") measured by sales or receipts are not included in the Schedule prices.  Licensee shall be responsible for and shall pay all Taxes and duties, fees or charges of any kind imposed by any regulatory or government agency, whether federal, state, local or foreign, on any Software Application or Services provided under this Agreement.  Unless Licensor directly invoices Licensee for the applicable Taxes, if any, Licensee agrees to pay and verify back, if requested, to TSI Licensee’s payment of the applicable Taxes directly to the taxing authority and in the event Licensor becomes responsible for Licensee's Taxes or for failure to make payment of such Taxes, Licensee will reimburse and indemnify Licensor for any and all fees and Taxes, including penalties and interest, levied or imposed by reason of the transactions contemplated by this Agreement. 

7.Infringement Indemnity. Licensor, at its own expense, shall indemnify and hold harmless Licensee and its and their respective directors, officers, employees and agents and defend any action brought against the same, and pay all costs, expenses and damages, with respect to any claim, demand, cause of action, debt or liability, including attorneys' fees, to the extent that it is based upon a claim that the Software infringes or violates any patents, copyrights, trade secrets, licenses, or other property rights of any third party.  Licensee may, at its own expense, assist in such defense if it so chooses, provided that, as long as Licensor can demonstrate sufficient financial resources, and engages in a vigorous defense of any such claim, Licensor shall control such defense and all negotiations relative to the settlement of any such claim.  Licensee shall promptly provide Licensor with written notice of any claim which Licensee believes falls within the scope of this paragraph.  In the event that the Software Application or any portion thereof is held to constitute an infringement and its use is enjoined, Licensor shall have the obligation to, at its sole expense, (i) modify the infringing Software Application without impairing in any material respect the functionality or performance, in accordance with the terms hereof so that it is non-infringing, (ii) procure for Licensee the right to continue to use the infringing Software Application, or (iii) replace the Software Application with equally suitable, non-infringing software.  If none of the above can be accomplished despite TSI's reasonable efforts, then, in addition to the other rights of Licensee set forth in this Article 8, Licensee may terminate this Agreement, and Licensor will refund to Licensee the license fees paid by Licensee.

8.Infringement Exclusions. Licensor will have no liability for any infringement claim of any kind to the extent it results from: (a) modification of the Software Application made other than by Licensor, unless such modification was made by a third party at the direction of Licensor; (b) the combination, operation or use of any Software Application supplied hereunder with equipment, devices or software not meeting specifications provided by Licensor to the extent such a claim would have been avoided if the Software Application were not used in such combination; (c) failure of Licensee to use updated or modified Software Applications provided by Licensor to avoid infringement, provided the updated or modified Software Application is substantially equivalent in function; or (d) compliance by Licensor with specific designs, plans or specifications required by Licensee. Licensee shall defend and hold Licensor harmless against any expense, judgment or loss for alleged infringement of any patents or copyrights or misappropriation of trade secrets which result from Licensor's compliance with designs, specifications or instructions specifically required by Licensee, unless Licensor knew or should have known that infringement would occur as a result of such compliance with the designs, specifications or instructions specifically required by Licensee.

9.Sole Remedy. THE PROVISIONS OF SECTIONS 7 AND 8 STATE LICENSOR'S SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

10.Ownership. Licensor owns all worldwide right, title, and interest in and to all of the Software Application and in any software tools, specifications, accompanying printed material or media, images, photographs, music, text, animations, ideas, concepts, know-how, processes, and techniques used by Licensor in performing enhancements to the Software Application. Licensee will not delete, alter or obscure the copyright, trademark, or other proprietary rights notices appearing on the Software Application.

11.Nondisclosure Obligations.

11.1 Definition. "Confidential Information" means:  (a) the Software Application and accompanying media; and (b) each party’s business or technical information, including any information relating to medical records, patients, software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how; and (c) the terms, conditions and pricing of this Agreement.

11.2 Exclusions. Confidential Information does not include information that:  (a)  is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is rightfully known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.

11.3 Use and Disclosure Restrictions. During the term, and for a period of three (3) years after any termination of this Agreement, neither party will use the other party's Confidential Information except as permitted herein, and will not disclose such Confidential Information to any third party except to its respective directors, officers, employees, legal, financial and other advisors and consultants as reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein).  However, each party may disclose Confidential Information:  (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to enable it to contest such order or requirement; and/or (b) on a confidential basis to legal, financial or other advisors.  Confidential Information designated as a trade secret of a respective party shall be kept confidential indefinitely by the receiving party unless such information falls within an exclusion set forth in Section 11.2 above.

12. Limitation of Liability.

12.1  EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, AND LICENSEE’S OBLIGATIONS UNDER THE SECTION ENTITLED “LICENSE EXCLUSIONS”, EACH PARTY’S LIABILITY TO THE OTHER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL NOT EXCEED THE AMOUNTS PAID TO LICENSOR BY LICENSEE FROM WHICH THE CLAIM AROSE. 

12.2 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), SOFTWARE LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

12.3  THIS ARTICLE SETS FORTH THE ENTIRE ALLOCATION OF RISK AS BETWEEN THE PARTIES.

13. Support. Licensor agrees to provide you with support services related to the Software Application ("Support Services").  Use of Support Services is governed by TSI policies and programs described in the user manual, in "online" documentation, and/or in other provided materials.  Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software Application and subject to the terms and conditions of this Agreement.  With respect to technical information you provide to TSI as part of the registration of your license to the Software Application or in connection with the Support Services, TSI may use such information for its business purposes, including for product support and development; provided, however, that TSI acknowledges the proprietary nature of information and agrees not to disclose or to share such information or to identify the source of such information without your advance consent.  Technical information does not include any data input or patient information. 

14.Business Associate Agreement.   The parties agree to be bound by the terms and conditions of the Business Associate Agreement (“BAA”) attached hereto as Exhibit A and hereby incorporate the BAA into this Agreement in its entirety.

15.Term and Termination.

15.1 Term. This Agreement remains in effect for one (1) year from the Effective Date and may be renewed for consecutive one year terms upon payment by Licensee of the annual license fees for the number of workstations for which the Software Application is installed. 

15.2 Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement, including but not limited to nonpayment, and fails to cure such breach within thirty (30) days after written notice thereof. 

15.3 Effect of Termination. Upon any termination of this Agreement, Licensee will promptly return to Licensor or, at Licensee's request, destroy Licensor Confidential Information, cease using the Software Application and uninstall it from all workstations or network servers, and all copies and portions thereof, in all forms and types of media, and provide Licensor with an officer's written certification, certifying Licensee's compliance with the foregoing. 

15.4 Nonexclusive Remedy. Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party at law or in equity.

16.Disclaimer of Warranty.

THIS SOFTWARE AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS."  TSI DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SUCH FILES.  TSI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. The user must assume the entire risk of using the Software Application.  ANY LIABILITY OF TSI FOR A DEFECTIVE COPY OF THE SOFTWARE APPLICATION WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE SOFTWARE APPLICATION WITH ANOTHER COPY OR REFUND OF THE INITIAL LICENSE FEE TSI RECEIVED FROM YOU FOR THE DEFECTIVE COPY OF THE PRODUCT.  IN NO EVENT WILL TSI BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF TSI OR ANY OF ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.

17.General.

17.1 Assignment. Licensee may assign this Agreement, upon notice to Licensor and without Licensor’s consent, to any subsidiary or affiliate or entity owned or controlled by Licensee or to any entity succeeding to Licensee’s business pursuant to any merger, consolidation, sale or transfer of assets and assumption of liabilities, Change of Control or other reorganization or business combination involving Licensee (each, a "Merger ").  In the event of a Merger, the site of the site license herein may be transferred to the site of the surviving entity, and, during a reasonable transition period, the site license shall encompass both the former site and the new site.  If it becomes advisable to operate the Software Application for more than one site, as a result of a Merger or otherwise, the parties will negotiate in good faith with respect to an additional site license fee.  This Agreement and the License granted hereunder shall not be affected by (i) a Merger in which Licensee is the surviving entity, (ii) the transfer or acquisition of a portion of Licensee's geographic territory to another entity, or (iii) the acquisition by Licensee of a portion of another entity's geographic territory. 

17.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Indiana without application of conflict of laws principles. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.

17.3 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

17.4 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

17.6 Force Majeure. Neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, but excluding any of the foregoing as they relate to Licensor labor or employees; shortages of or inability to obtain energy, raw materials or supplies, war, riot, act of God or governmental action. 

17.7 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. 

17.9 Non-Solicitation/Non-Hire. The parties acknowledge that soliciting and hiring  each others employees may have a material adverse effect on the parties’ on-going relationship. For a period of three (3) years from the Effective Date and so long as Licensee is receiving Support Services from Licensor and for one (1) year thereafter, neither party will directly or indirectly recruit, solicit, or hire any employee(s) or ex-employee(s) of the other party.  Each party's sole remedy in the event of a breach of this paragraph of the Agreement shall be limited to injunctive relief only.

17.10 Entire Agreement. This Agreement, including all referenced Schedules, appendices, exhibits and attachments attached hereto or referred to herein, contains the complete understanding and agreement of the parties with regard to its subject matter and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein, including any Licensee purchase order or similar document.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties. 

EXHIBIT A

BUSINESS ASSOCIATE AGREEMENT

THIS BUSINESS ASSOCIATE AGREEMENT (this “Agreement”) is made and entered into by and between Licensee, a HIPAA covered entity (“COVERED ENTITY”) and Licensor, a HIPAA business associate (hereinafter called “TSI”).

Recitals

1.COVERED ENTITY and TSI have entered into, and may in the future enter into, an End-User License Agreement for Intelicode  (“Underlying Agreement”) that will require TSI to perform, or to assist in the performance of, a function or activity or provides services of a type for COVERED ENTITY that qualifies TSI as a “TSI” for purposes of the Health Insurance Portability and Accountability Act of 1996 and the Privacy and Security Regulations promulgated thereunder in 45 CFR parts 160 and 164, as amended (the “Regulations”).

2. Pursuant to the Underlying Agreement, COVERED ENTITY will disclose or otherwise make available certain PHI and other forms of nonpublic personal information (“PHI”) to TSI in conjunction with the particular function, activity, or services to be performed or provided by TSI for or on behalf of COVERED ENTITY.

3. COVERED ENTITY and TSI desire to enter into an Agreement as required by the Regulations, as amended, to provide satisfactory assurances to COVERED ENTITY that TSI will appropriately safeguard that PHI.

Agreement

NOW THEREFORE, COVERED ENTITY and TSI agree as follows:

1. Definitions. All capitalized terms and phrases in this Agreement shall have the same meanings as defined by the Regulations, as amended by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, and those regulations promulgated thereunder in 45 CFR parts 160 and 164, as amended (collectively the “Regulations”).

2. Restriction on Use and Disclosure of PHI. Except as permitted or required by this Agreement or as Required by Law, TSI shall not access, create, use or further disclose any PHI hereunder.

3. Authorized Uses and Disclosures. TSI is hereby authorized to use and disclose PHI but only in connection with the performance of the particular functions, activities or services set forth in the Underlying Agreement or as otherwise required by COVERED ENTITY, in writing, from time to time.  TSI may use and disclose PHI for the proper management and administration of TSI or to carry out the legal responsibilities of TSI, provided: (1) the disclosure is required by law; or (2) TSI obtains reasonable assurances, in writing, from the person to whom the information is disclosed that it will be held confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person and the person will immediately notify the TSI of any instances of which it is aware in which the Privacy or Security of the PHI has been violated.

4. TSI Obligations.

(a) Compliance; Safeguards. TSI shall comply with the HITECH Act amendments to the Regulations on or before the compliance dates established therein.  TSI will implement and document appropriate Administrative, Technical and Physical Safeguards in order to preserve the Confidentiality, Integrity and Availability of PHI and to prevent any unauthorized access, use or disclosure of PHI or other successful Security Incident or other Breach involving said PHI (hereinafter collectively referred to as “Incident”) and make all such documentation available to COVERED ENTITY for review upon request.

(b) Reporting. TSI will report to COVERED ENTITY any Incident that TSI has reason to believe has or may have violated the Confidentiality, Integrity or Availability of PHI not more than four (4) business days after TSI learns of the Incident.  Said report shall identify: (1)  the nature of the Incident; (2) the PHI known to be the subject of the Incident; (3) the person(s) known to have information regarding the Incident; and (4) the corrective action that TSI took or will take to mitigate and/or correct any deleterious effect of the Incident.  TSI shall submit a written report to COVERED ENTITY for review upon request.

(c) Agents, Contractors, and Subcontractors. TSI shall ensure that any agent, contractor, or subcontractor, to whom it provides PHI, agrees in writing to the same restrictions and conditions that apply to TSI under this Agreement.

(d) Resident’s Access to Information. TSI shall act in a manner that permits COVERED ENTITY to provide Resident access to PHI in accordance with 45 CFR §164.524.

(e) Amendment of PHI. TSI shall act in a manner that permits COVERED ENTITY to amend PHI in accordance with 45 CFR §164.526.

(f) Accounting of Disclosures. TSI shall act in a manner that permits COVERED ENTITY to account for PHI disclosures in accordance with 42 CFR §164.528.

(g) COVERED ENTITYs, Books and Records. TSI shall make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by TSI on behalf of COVERED ENTITY, available to the Secretary for the purpose of determining COVERED ENTITY’s and/or TSI’s compliance with the Regulations, as amended.

(h) Cure of Noncompliance. If COVERED ENTITY notifies TSI of an Incident or other pattern of activity or COVERED ENTITY of TSI which constitutes a material breach of this Agreement or the Regulations, as amended, TSI shall immediately take reasonable steps to end or otherwise cure the Incident or other breach of this Agreement.

(i) Mitigation. TSI shall take reasonable steps to mitigate, to the extent practicable, any harmful effect that is known to TSI or communicated to TSI by COVERED ENTITY of a use or disclosure of PHI in violation of TSI policies and procedures, this Agreement, or the Regulations; provided, however, that this provision shall not be deemed to permit or excuse any such violation.

(j) Legal Obligations. In the event TSI believes it has a legal obligation to disclose any PHI in TSI’S possession, including, but not limited to obligations that arise from the issuance of a subpoena or court order, TSI shall notify COVERED ENTITY as soon as reasonably practical after it learns of such obligation, and in any event within a time sufficiently in advance of the proposed release date such that COVERED ENTITY’s rights and interests would not be prejudiced, as to the legal requirement pursuant to which it believes the PHI must be released.  If COVERED ENTITY objects to the release of such PHI, TSI will allow COVERED ENTITY to exercise any legal rights or remedies which either COVERED ENTITY or TSI might have with respect to the release of the PHI, and TSI agrees to provide such assistance to COVERED ENTITY, at COVERED ENTITY’s expense, as COVERED ENTITY may reasonably request in connection therewith.

(k) Return or Destruction of the PHI. Upon the termination of the business relationship between COVERED ENTITY and TSI, TSI will return to COVERED ENTITY, or, at COVERED ENTITY's direction, destroy, all PHI received from COVERED ENTITY that TSI maintains in any form, recorded on any medium, or stored in any storage system.  TSI will complete such return or destruction as promptly as possible, but not later than 30 days after the effective date of the termination, cancellation, expiration or other conclusion of the business relationship.  TSI will identify any recorded PHI, in TSI’S possession, that TSI created on behalf of COVERED ENTITY, or received in its role as TSI, that cannot feasibly be returned or destroyed to COVERED ENTITY, and will limit its further use of that PHI to those purposes that make return or destruction of that PHI infeasible.  Within such 30 days, TSI will certify on oath in writing to COVERED ENTITY that such return has been completed, will deliver to COVERED ENTITY the identification of any PHI for which return is infeasible and, for that PHI, will certify that it will only use or disclose such PHI for those purposes that make return infeasible.  TSI shall remain bound by the provisions of this Agreement, even after termination of any business relationship between COVERED ENTITY and TSI, until such time as all PHI has been returned to COVERED ENTITY, de-identified, or otherwise destroyed as provided in this section; provided that the parties understand and agree that certain unrecorded information cannot be returned, destroyed, or de-identified, so the TSI shall remain bound by the provisions of this Agreement so long as TSI possesses the PHI.

5. Term of this Agreement. This Agreement shall be effective when executed on behalf of both of the parties hereto and shall continue in full force and effect until terminated.

6. Termination

(a) Termination By Covered Entity. COVERED ENTITY may terminate the business relationship between COVERED ENTITY and TSI, including any Underlying Agreement or other arrangements or understandings, whether or not in writing, upon which the business relationship is based and such other agreements, arrangements or understandings are hereby amended to permit such termination, if COVERED ENTITY determines that TSI has violated a material term of this Agreement that cannot otherwise be cured by TSI. 

(b) Termination By TSI. TSI may terminate the business relationship between COVERED ENTITY and TSI, including any Underlying Agreement or other arrangements or understandings, whether or not in writing, upon which the business relationship is based and such other agreements, arrangements or understandings are hereby amended to permit such termination, if TSI determines that COVERED ENTITY has violated a material term of this Agreement and/or the Underlying Agreement that cannot otherwise be cured by COVERED ENTITY.  Termination of the Underlying Agreement for whatever reason shall cause this Agreement to terminate automatically and TSI shall destroy any PHI of COVERED ENTITY in its possession or control.

7. Indemnification. TSI shall indemnify and hold COVERED ENTITY and each of its officers, employees, directors, agents and representatives (“Indemnified Persons”) harmless from and against any and all claims, losses, costs, damages, or expenses, including reasonable attorneys’ fees, that arise out of any actions or omissions by TSI, or its officers, employees, directors, agents or representatives, which result in a breach by TSI of this Agreement or the Regulations, as amended.  Without limiting the foregoing, COVERED ENTITY shall give TSI prompt written notice of such claim, suit, or proceeding.

8. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered or sent by facsimile or by certified or registered overnight mail, first class postage prepaid, return receipt requested, or by prepaid overnight delivery service such that proof of delivery will be obtained, and shall be addressed as set forth below or to such other address as may be specified in a prior written notice to the other party.  Such notice shall be deemed to be given on the date it is hand delivered, faxed or deposited in the overnight mail, as stated above.  A notice shall be deemed to have been given personally to a party if it is handed to the representative of the party to whom the notice must be addressed or if left at his or her office located at the street address to which a notice would be mailed.

9. Amendment. This Agreement may not be changed, modified, or amended except by a written agreement executed on behalf of each of the parties.

10. No Waiver. No waiver of one or more of the provisions of this Agreement or the failure to enforce any provision of this Agreement by either party shall be construed as a waiver of any subsequent breach of this Agreement, nor a waiver of the right at any time thereafter to require strict compliance with all of its terms.

11. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the matters contained in it, and supersedes all prior discussions, agreements, and understandings of every kind and nature between them.

12. Headings. The headings placed before the various paragraphs and subparagraphs of this Agreement are inserted for each of reference only, do not constitute a part of this Agreement, and shall not be used in any way whatsoever in the construction or interpretation of this Agreement.

13. Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the state of Indiana without reference to the choice of laws principles thereof.

14. No Third Party Beneficiaries. This Agreement is to be effective only in regard to the rights and obligations of COVERED ENTITY and TSI to one another hereunder.  It is expressly not the intent of the parties hereto to create any independent rights in any third party or to make any third party beneficiary to this Agreement and no privity of contract shall exist between third parties and each party hereto.

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INTELICODE® is a registered trademark of Technology Solutions, Inc. (TSI).  All Rights Reserved.