MDP LABS SERVICES AGREEMENT

Transcription

1 MDP LABS SERVICES AGREEMENT This MDP Labs Services Agreement sets forth the legally binding terms for your participation in athenahealth, Inc. s MDP Labs program, as may be rebranded and as further described in the MDP Labs Services Agreement. By clicking the I AGREE button, you, on behalf of the entity set forth in the intake form below ( Company ) agree to be bound by this MDP Labs Services Agreement beginning on the date on which you click I AGREE (the Effective Date ). PLEASE READ THIS MDP LABS SERVICES AGREEMENT BEFORE CLICKING I AGREE. IF YOU DO NOT AGREE WITH THE TERMS, YOU SHOULD NOT CLICK AGREE, AND SHOULD DISCONTINUE DISCUSSIONS TO PARTICIPATE IN THE ATHENAHEALTH, INC. s MDP LABS PROGRAM. This MDP Labs Services Agreement (this Agreement ) is entered into by and between athenahealth, Inc., a Delaware corporation ( athenahealth ), and the entity you entered in the intake form as the company ( Company ). Company desires to avail itself of the services available in athenahealth s MDP Labs program, and athenahealth desires to provide such services to Company. This Agreement is effective as of the date on which Company clicks I AGREE to the terms hereof. The parties agree as follows: 1. SERVICES. (a) Services. During the Term, athenahealth will provide, as it deems appropriate and desirable in its sole discretion, to Company the services described on Exhibit A (the Services ). athenahealth may at any time, without notice or liability, change or eliminate the Services or persons who provide the Services to Company pursuant to this Agreement. (b) No Professionally Regulated Services. Notwithstanding anything to the contrary, athenahealth will not provide audit, attestation, tax, legal or other professionally regulated services to Company. It is Company s sole responsibility to obtain and retain third parties for such services. 2. COMPANY RESPONSIBILITIES. (a) Meetings. Company will hold regular periodic meetings with athenahealth s staff person and/or other third parties appointed to monitor Company s progress and development. Company acknowledges that as part of the programs and services provided to it by athenahealth under this Agreement, Company may receive advice and counsel from such athenahealth staff or such other person or persons as athenahealth may designate (the Representatives ). Company and its officers, employees and other agents shall rely on any advice provided by the Representatives in their sole discretion and neither athenahealth or any Representative shall have any liability to Company or its successors, directors, shareholders, members, mangers, assigns, predecessors, officers, employees or other agents for any such advice. (b) Promotion. Company hereby grants to athenahealth a non-exclusive, sublicensable (through multiple tiers of sublicensees), transferable (to permitted assigns or delegatees of athenahealth), perpetual, royalty-free and fully paid-up right and license to display, perform, and use Company s trademarks, logos, trade names, business names, domain names and service marks (collectively, the Company Marks ), as athenahealth deems appropriate in connection with the advertising, marketing and other promotional activities for athenahealth and its programs. The foregoing license shall include, but is not limited to, the right for athenahealth to use Company Marks on athenahealth s web site and in athenahealth s printed marketing materials, and to include descriptions of Company s business in connection with the foregoing. athenahealth agrees that its use of Company Marks shall be subject to Company s usage guidelines, as Company may communicate in writing to athenahealth from time to time. athenahealth encourages, but does not require, Company to publicize its involvement in athenahealth s MDP Labs program by means including, but not limited to, Company s web site, printed marketing materials and press releases, and to include athenahealth s description of its MDP Labs program in connection with such publication, provided that, Company shall obtain athenahealth s prior written consent for each such publication. As and if directed by athenahealth, Company will cease publicizing its involvement with athenahealth s MDP Labs program. 3. INDEPENDENT CONTRACTOR. Company is an independent contractor and is not an agent or employee of, and has no authority to bind, athenahealth, its employees, or any of its affiliates or any other participants in the MDP Labs program by contract or otherwise. 4. REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) Rules; Compliance with Laws. Company agrees to abide by, and to cause its employees and contractors to abide by, all federal, state and local laws, regulations and ordinances ( Applicable Laws ). 1

2 (b) Pre-existing Obligations; Authority. Company represents and warrants that Company is not under any pre-existing obligation inconsistent with the provisions of this Agreement and that the person entering into this Agreement on behalf of Company is duly authorized by Company to do so. (c) Solicitation of Employment. Because of the nature of the relationship between the parties, Company agrees that it will not solicit the services of or hire any of the employees or consultants of athenahealth or athenahealth affiliates during the Term and for twelve (12) months thereafter without the consent of athenahealth, which consent may be granted or withheld in athenahealth s sole discretion. 5. INDEMNIFICATION. Company will indemnify and hold harmless athenahealth, its affiliates and each of their respective successors, assigns, employees, directors, officers, managers, agents and predecessors (each an Athena Party ) from and against all claims, liabilities, damages, costs, losses and expenses, including court costs and reasonable fees and expenses of attorneys, expert witnesses and other professionals (collectively, Claims ), arising out of, related to or in connection with any alleged act or omission of Company or any of its agents, and (at the applicable Athena Party s option) Company will defend each Athena Party against, any action by a third party that is based on any alleged act or omission of Company or any of its Agents. 6. DAMAGES AND INSURANCE. 7. DEFAULT AND REMEDIES. Company shall be deemed to be in default under this Agreement: (a) if Company is adjudicated bankrupt; files a voluntary petition of bankruptcy; makes a general assignment for the benefit of creditors; is unable to meet its obligations in the normal course of business or if a receiver is appointed on account of Company s insolvency; (b) Company defaults under any other agreement between Company and athenahealth or any affiliate of athenahealth, if such default is not cured within the applicable cure period provided therein, if any; or (c) Company engages in conduct that athenahealth believes in its sole discretion is harmful to other companies participating in the MDP Labs program or to the business interests of any athena Party if, after notice to Company of such conduct in this subsection (c), Company does not correct such conduct within five (5) days of such notice. Should Company be in default hereunder, athenahealth shall have the option to pursue any one or more of the following remedies without any additional notice or demand whatsoever and without limitation to athenahealth in the exercise of any remedy: (a) Termination. athenahealth may, if athenahealth so elects, without any additional notice of such election or demand to Company, either immediately terminate this Agreement. (b) Election of Remedies. athenahealth may pursue any other remedy now or hereafter available to athenahealth. The election by athenahealth or Company to terminate this Agreement in accordance with its terms shall not be deemed an election of remedies, and all other remedies provided by this Agreement or available at law or in equity shall, subject to the terms of this Agreement, survive any termination. 8. TERM; TERMINATION BY EITHER PARTY. (a) This Agreement shall expire on April 30, 2018 (the Term ). (b) Either party may terminate this Agreement at any time, for any reason or for no reason, by written notice to the other party, given no later than thirty (30) days prior to the date specified in such notice. 9. EFFECT OF EXPIRATION OR TERMINATION. Upon the expiration or termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except that expiration or termination of this Agreement will not relieve Company of its obligations under Sections 4(c), 9-11 and 13, nor will expiration or termination relieve Company from any liability arising from any breach of this Agreement. Further, upon the expiration or termination of this Agreement, Company will immediately cease using any systems, platforms, servers, tools or credentials directly or indirectly provided by athenahealth to Company, including, without limitation, any third party systems, platforms, servers, tools or credentials, and Company shall ensure its employees and agents comply with the foregoing. 2

3 10. LIMITATION OF LIABILITY. IN NO EVENT SHALL ATHENAHEALTH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF ATHENAHEALTH HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NO REPRESENTATIONS OR WARRANTIES ARE MADE BY ATHENAHEALTH REGARDING THE RESOURCES OR SERVICES PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND ATHENAHEALTH HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF INFORMATION, PRODUCTS, OR SERVICES; (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY LIABILITY OF ATHENAHEALTH, ITS AFFILIATES, AGENTS OR CONTRACTORS (INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION) SHALL BE STRICTLY LIMITED TO $1, Termination of Non-Disclosure Agreement. Company and athenahealth hereby agree that (i) the Non-Disclosure Agreement by and between Company and athenahealth is hereby terminated, (ii) all terms, conditions and obligations therein, including obligations with respect to Confidential Information (as defined therein) are of no further force and effect and (iii) notwithstanding anything to the contrary in such Non-Disclosure Agreement, none of the foregoing terms, conditions or obligations will survive the termination of such Non-Disclosure Agreement. 12. Third Party Terms. Company hereby agrees to comply with the third party terms and conditions set forth below related to its use of Slack Technologies, Inc. s ( Slack ) communication and productivity software as a service and related systems and technologies made available by athenahealth or Slack (the Slack Services ) and Google, Inc. s or its affiliates s ( Google ) Gsuite or other offerings (the Google Services and, together with the Slack Services, the Third Party Services ), and will ensure its employees comply as well. athenahealth may suspend or terminate Company s access to the Third Party Services at any time for any reason. (a) Company will not upload or otherwise input any content into Third Party Services that contains PHI (as defined under the Health Insurance Portability and Accountability Act of 1996 and associated regulations, as may be amended from time to time). (b) Company will not share any credentials between individuals and is responsible for maintaining the confidentiality of its logins, passwords and accounts and for all activities that occur related to its use of the Third Party Services. Company will comply with Slack s online user guides and policies, as updated from time to time, accessible via or such successor site, including any obligations related to storage limits and content, and Google s online terms of use, including its Acceptable Use Policy posted at or such other URL that may be provided by Google. Company will promptly notify athenahealth of any unauthorized access or use of Slack Services and will only use Slack Services in compliance with Applicable Laws. (c) Company may not (a) make any Third Party Services available to, or use any Third Party Services for the benefit of, anyone other than itself and the users to whom athenahealth issues credentials; (b) upload, post, transmit, or otherwise make available any content that (i) Company knows or reasonably should know is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable, or (ii) that Company does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that it knows to infringe any patent, trademark, trade secret, copyright or other proprietary rights; (c) sublicense, resell, timeshare or similarly exploit the Third Party Services; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Third Party Services, or otherwise attempt to gain unauthorized access to the Third Party Services or its related systems or networks; or (f) use the Third Party Services for any high risk activities, including nuclear facilities, air traffic control or life support systems, where the use or failure of the Third Party Services could lead to death, personal injury or environmental damage. 13. GENERAL. (a) Assignment. Company may not assign Company s rights or delegate Company s duties under this Agreement either in whole or in part (including by merger, operation of law or a change of control) without the prior written consent of athenahealth, which consent may be granted or withheld in athenahealth s sole discretion. Any attempted assignment or delegation without such consent will be void, and, at the option of athenahealth, shall terminate this Agreement. 3

4 (b) Governing Law; Venue; Waiver of Jury Trial; Severability. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding that body of law pertaining to conflict of laws. This Agreement will be governed exclusively by the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws principles. The Federal District Court for the District of Massachusetts or the business litigation section of the state superior court of Massachusetts will be the exclusive venue for any court proceeding between the Parties arising out of, or in connection with, this Agreement. The Parties hereby submit to and consent irrevocably to the jurisdiction of such courts for these purposes. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect. (c) Notices. Any notices under this Agreement will be sent by personal delivery, by confirmed delivery, by a nationally recognized overnight courier, or by certified or registered mail, return receipt requested, to the address specified herein, the intake form referenced above or such other address as the party specifies in writing. Such notice will be effective upon personal delivery, one day after deposit with an overnight courier, and three days after its mailing as specified. (d) Complete Understanding; Modification. This Agreement, together with each Exhibit and attachment to this Agreement, constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. (e) Counterparts. This Agreement may be executed by electronic acceptance, which such acceptance shall be deemed to be an original. 4

5 EXHIBIT A SERVICES A. Tailored Programming & Mentorship. Company will receive structured meetings with a dedicated athenahealth designated contact (i.e., champion) over the next 6-8 months, after establishing mutual goals and milestones. The athenahealth designated contact may also introduce Company or its employees to other athenahealth employees, as athenahealth designated contact determines is appropriate in his or her sole discretion. B. Athenahealth May Explore Other Opportunities. athenahealth may, in its sole discretion, explore and consider other potential business development opportunities with Company. Company acknowledges athenahealth may never initiate or may terminate any such discussions at any time in its sole discretion with no liability. C. Exposure to Provider Clients. If athenahealth decides in its sole discretion that introductions are desirable and appropriate, Company may be provided with opportunities to demonstrate its offering to, and receive feedback from, healthcare providers and other potential clients. D. Community and Learning. Company will join an athenahealth hosted and nurtured community of likeminded health IT entrepreneurs addressing specific industry needs and facing similar challenges. If athenahealth determines in its sole discretion that introductions are desirable and appropriate, athenahealth may introduce Company to third parties that may be interested in providing services to Company or otherwise exploring business opportunities with Company. E. Disclaimer of Services Not Specified. athenahealth is under no obligation to provide services other than those specified in this Agreement.