Outcomemd r color logo2025
Contact us

Subscription and Services Agreement

This Subscription and Services Agreement (this “Agreement”) between OutcomeMD, a Delaware corporation (“OutcomeMD,” “we,” “us” or “our”) and you as a customer (“Customer,” “you,” “your”) is a contract governingyour use or access to our Services (defined below). OutcomeMD and Customer are hereinafter referred to from time to time individually as “Party” and collectively as “Parties”. For a list of defined terms, please refer to Section 3. This Services Agreement is included in its entirety as part of the Master Agreement.

 

RECITALS

OutcomeMD is a data company that provides patient outcome tracking software and services to help patients and clinicians follow and understand treatment results to improve care and enhance their business. Utilizing OutcomeMD’s owned and operated solutions, currently located at www.outcomemd.com (the “Site”); cloud-based patient outcome tracking, management and marketing platform, located at www.portal.outcomemd.com (the“Platform”); web-enabled emails and texts sent as part of, in connection with, or relating to such software and information services (“Patient Surveys”); consulting services related to patient outcome tracking and data analysis/utilization. OutcomeMD provides the following services (together with our related content, features, applications and other services, including, without limitation, any new features and applications, “Services”):

 

Subscription Services:

  • tracking, scoring, reporting, and visualization of PROs resulting from such Patient Assessments, administration,and related functionality (collectively, “OutcomeMD Tracking Services”);
  • access rights to all data captured by, and all records and PROs created in connection with, the OutcomeMD Tracking Services provided to Healthcare Professionals (HCPs) within a customer’s Network (“OutcomeMD Access Services”);
  • access rights to De-Identified Data provided to HCPs within a customer’s Network (“OutcomeMD Reporting Services”);
  • outcome empowered lead generation, reputation management, and search engine optimization services (“OutcomeMD Marketing Services)
 

Professional Services:

  • Consulting related to patient data collection, aggregation, and analysis (“Consulting Services”)
  • Data services for importing, migrating, or exporting patient outcome related data (“Data Services”)
  • integration of the Platform with third-party software (“Integration Services”);
  • onboarding and training of Customer Representatives (“Training Services”); and
  • custom development services, as mutually agreed upon by the Parties (“Development Services”, and collectively with the Integration Services and Training Services, “Professional Services”).

NOW THEREFORE, in consideration of the above, as well as the mutual promises described herein, the Parties agreeas follows:

 

1. ACCEPTANCE; ADDITIONAL TERMS AND POLICIES

  • 1.1 Binding Contract. By executing the Master Agreement), Customer accepts this Agreement as a binding contract. Subject to the terms of this Agreement, OutcomeMD agrees to provide to you the Services selected by you via our Platform. As part of the Master Agreement, the terms of this Agreement apply only to the extent such terms are not governed by the Master Agreement.
  • 1.2 Representations and Warranties. Each Party hereby represents and warrants to the other as follows: (i) it has theauthority to enter into this Agreement and to bind such Party to this Agreement, and that this Agreement constitutes the legal, valid, binding and enforceable agreement of such Party; and (ii) execution and performance ofthis Agreement (a) does not breach any agreement of such Party with any third party, or any duty arising in law or equity, (b) does not violate any law, rule or regulation applicable to such Party, and (c) is within such Party’s powers.
  • 1.3 Additional Terms and Policies. By using our Services, you agree to our Terms of Use and the Platform Privacy Policy, each of which is incorporated by reference into this Agreement.
  • 1.4 Business Associate Agreement In the event that you provide OutcomeMD with access to Patient Health Information (PHI), before using the Services, the Parties agree they shall enter into a Business Associate Agreement (BAA), inform and substance reasonably satisfactory to OutcomeMD, governing the use and disclosure of exchanged PHI. You further represent, warrant, and covenant to OutcomeMD that you have in effect a legal, valid and binding BAA containing the same or similar restrictions and conditions to those in the BAA with each of your third-party service providers from whom you receive PHI and to whom you disclose or transmit, or which requests, to use PHI.
  • 1.5 Affiliates. We agree that each of your Affiliates shall have the right to use the Services, and exercise all rightsunder this Agreement, as if such Affiliate were a party to this Agreement, provided (i) each such Affiliate complies with the terms and conditions hereunder, and (ii) Customer agrees, understands and covenants that with regard to each representation, warranty, and covenant Customer makes herein, it does so on behalf of itself and each Customer further agrees to be liable for any breach of this Agreement by its Affiliate(s), together with each of their respective Representatives.
  • 1.6 Verification. You acknowledge and agree that your use of the Services may be subject to verification by us of youridentity and credentials as a health care provider and your ongoing qualification as You agree that we may use and disclose information that could reasonably be anticipated to identify you as an individual and/or identifiers as defined under applicable state and federal law for these purposes, including making inquiries to third partiesconcerning your identity and professional and practice credentials. You authorize such third parties to disclose to ussuch information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. You agree that we may terminate your access to, or use of, the Services at any time if we are unable to determine or verify your identity, qualifications, or credentials.

 

2.     MODIFICATIONS

We reserve the right to modify the terms and conditions of this Agreement and our Company Policies at any time, effective thirty (30) days after posting of an updated version. Customer should review this Agreement and our Company Policiesregularly. The continued use of the Services by Customer, or any of its Authorized Users, after the date any such changes become effective constitutes Customer’s agreement to such changes.

We also reserve the right, in our sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of our Site or our Platform.

We will not have any liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse is to stop using the Services. Continued use of the Services following any such changes indicates youragreement to such changes and satisfaction with all the Services.

 

3.     DEFINED TERMS
  • 3.1 “Admin Account” means your primary, administrative
  • 3.2 “Affiliate” means any person or entity owned or controlled by a Party, owning or controlling a Party, or under common ownership and control with a Party, with “control” meaning the possession, directly or indirectly, of thepower to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract interest or otherwise; provided, however, Affiliate does not include (i) investors or entities controlled by Customer’s investors that are not involved in customer’s day-to-day operations; or (ii)independent, third-party HCPs with which Customer contracts to provide or receive services.
  • 3.3 “Arbitration Agreement” refers to the terms and conditions related to binding arbitration set forth in Section 20
  • 3.4 “Authorized Users” means your employees or contractors who are granted access rights to the Services and shall include accounts with such access rights used primarily for performing automated tasks (commonly called “machine users”).
  • 3.5 “BAA” means a Business Associate Agreement, as such term is defined in HIPAA, OutcomeMD’s current form ofwhich can be found here.
  • 3.6 “Company Policies” means OutcomeMD’s Terms of Use and Platform Privacy
  • 3.7 “Customer” has the meaning given to such term in the
  • 3.8 “Customer Data” means the information related to Customer and its Authorized Users provided by Customerand its Authorized Users.
  • 3.9 “Default” has the meaning given to it in Section 6.
  • 3.10 “De-Identified” means with regard to any type of Data, including, without limitation, Customer Data, Patient Data, and Service Data, Customer’s organizational identifiers are removed and if Customer Data, Patient Data or PROsare protected by HIPAA, then “de-identified” in accordance with the requirements of HIPAA.
  • 3.11 “Development Services” has the meaning given such term in the
  • 3.12 “Disclosing Party” has the meaning given to such term in Section 8.
  • 3.13 “Equipment” means hardware and software, including, without limitation, modems, servers, operating systems,networks, web servers and the like.
  • 3.14 “FAA” means the Federal Arbitration Act, 9 U.S.C. 1 et seq., and the regulations promulgated thereunder, as amended from time to time.
  • 3.15 “Fees” means, collectively, Subscription Fees and Professional Services
  • 3.16 “HCPs” means individual healthcare professionals and medical
  • 3.17 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Law No. 111-5 and the regulations promulgatedthereunder, each as may be amended from time to time.
  • 3.18 “Initial Term” has the meaning given to such term in Section 6.
  • 3.19 “Integration Services” has the meaning given to such term in the
  • 3.20 “License” has the meaning give to such term in Section 9.
  • 3.21 “Losses” means damages, losses, liabilities, judgments, settlements and expenses (including without limitationcosts and attorneys’ fees).
  • 3.22 “Marketing Materials” means any publication, press release, marketing or promotional material, or other form ofpublicity and other related materials.
  • 3.23 “Network” means the group of independent, third-party HCPs (which are neither Affiliates norRepresentatives of Customer) with which Customer contracts to provide or receive services.
  • 3.24 “OutcomeMD” has the meaning given to such term in the
  • 3.25 “OutcomeMD Access Services” has the meaning given to such term in the
  • 3.26 “OutcomeMD Marketing Services” has the meaning given to such terms in the
  • 3.27 “OutcomeMD Reporting Services” has the meaning given to such term in the
  • 3.28 “OutcomeMD Tracking Services” has the meaning given to such term in the
  • 3.29 “Party” or “Parties” has the meaning given to such term in the
  • 3.30 “Patient Data” means information related to patients, including, without limitation, PHI, provided byCustomer, Customer’s Authorized Users, the patient or any other individual or entity.
  • 3.31 “Patient Assessment” means any questionnaire given to patients that enables them to self-assess their condition.
  • 3.32 “PHI” means “personal health information”, as such term is defined under
  • 3.33 “Platform” has the meaning given to such term in the
  • 3.34 “Platform Privacy Policy” means OutcomeMD’s Platform Privacy Policy, which can be found at https://www.outcomemd.com/platform-privacy-policy, as the same may be amended from time to time, by OutcomeMD, in its sole discretion.
  • 3.35 “PROs” means “patient reported outcomes”, together with any information, data, images, artwork, text, videos, audio, pictures and other materials contained in the “patient reported outcomes”.
  • 3.36 “Professional Services” has the meaning given to such term in the
  • 3.37 “Professional Services Fees” has the meaning given to such term in Section 2.1.
  • 3.38 “Proprietary Information” means business, technical or financial information relating to a Party’s business;provided that Proprietary Information of OutcomeMD includes non-public information regarding features,functionality and performance of the Services, including the Platform.
  • 3.39 “Prospective Providers” has the meaning give to such term in Section 1.
  • 3.40 “Receiving Party” has the meaning given to such term in Section 8.
  • 3.41 “Relationship Manager” means the individual listed in your account as your primary point of
  • 3.42 “Released Parties” means OutcomeMD and its Affiliates, and their respective Representatives, successors and
  • 3.43 “Renewal Term” has the meaning given to such term in Section 6.
  • 3.44 “Representatives” means an entity’s officers, directors, employees, members, owners, contractors and
  • 3.45 “Service Data” means data relating to Customer’s use, support, and/or operation of the
  • 3.46 “Service Level Terms” means the service level terms, attached hereto as Exhibit A, as the same may beamended from time to time, by OutcomeMD, in its sole discretion.
  • 3.47 “Service Marks” means trademarks, service marks, trade names, trade names, logos, symbols, or brand names (or any abbreviation or adaptation thereof).
  • 3.48 “Site” has the meaning given to such term in the
  • 3.49 “Subscription Fees” has the meaning given to such term in Section 1.1.
  • 3.50 “Subscription Services” has the meaning given to such term in the
  • 3.51 “Support Hours” has the meaning given to such term in the Service Level Terms set forth in Exhibit A.
  • 3.52 “Term” has the meaning given to such term in Section 6.
  • 3.53 “Terms of Use” means OutcomeMD’s Terms of Use of Service, which can be found at https://www.outcomemd.com/terms-of-use, as the same may be amended from time to time, by the Company, in its sole
  • 3.54 “Training Services” has the meaning given to such term in the
 
4.     AUTHORIZED USERS

As part of the registration process, you will identify an administrative username and password for your AdminAccount. You may grant access rights to the Services to your Authorized Users. Customer agrees and understandsthat each Authorized User will be required to agree to OutcomeMD’s Terms of Use and Platform Privacy Policy.Customer is responsible for all use of the Services by its Authorized Users and for any breach of this Agreement, the BAA, Company Policies or applicable laws or regulations by its Authorized Users. Authorized Users may be added and removed via the Admin Account or as otherwise directed in writing by OutcomeMD. When an Authorized User ends his or her employment or contractual relationship with you, you agree to remove the Authorized User within one (1) business day of such event. You agree to restrict Authorized Users to individualslocated in the United States or its territories.

 
5.     RESPONSIBILITIES & OBLIGATIONS
  • 5.1 Services. Subject to the terms hereof, OutcomeMD will provide the Services to you in accordance with prevailingindustry standards, but, in no event, less than the ordinary standard of OutcomeMD further agrees to providethe Services, with reasonable technical support services, in accordance with the Service Level Terms.
  • 5.2 Customer Data; Patient Data. You agree that you will provide us with the relevant Customer Data and Patient Data to the extent required for OutcomeMD to deliver the Services. You understand, agree and covenant that you are solely responsible for the accuracy, quality, and legality, and authorization and/or consent to release, of any Customer Data and Patient Data provided by you or your Representatives and the means by which you, or yourRepresentatives, acquired such
  • 5.3 Relationship Manager. Each Party agrees to set forth its Relationship Manager, which Relationship Manager may be changed from time to time by updating the information in your Admin Account.
  • 5.4 Equipment. You acknowledge and agree that you are solely responsible for (i) obtaining and maintaining any Equipment needed to connect to, access or otherwise use the Services; and (ii) the maintenance and security of the Equipment.
  • 5.5 Safeguards. You shall implement and maintain appropriate administrative, physical, and technical safeguards to protect information within the Services, including maintaining appropriate security with respect to all personnel, systems, and administrative processes used by you and your Authorized Users to transmit, store, and process Customer Data and Patient Data through the Services. If you believe there has been unauthorized access or use of the Services, you must notify us immediately and take appropriate remedial action.
  • 5.6 Healthcare Services. You acknowledge and agree that you shall be solely and exclusively responsible for, andshall have complete authority, control and supervision over, all aspects of health care services, health care operations, billing and claims submission, the practice of medicine and the provision of clinical services related thereto. OutcomeMD will not have, nor will we exercise, any control or discretion over the methods by which you and/or your affiliated physicians or professional employees practice medicine. The Parties acknowledge that OutcomeMD is not authorized or qualified to engage in any activity that may be construed or deemed to constitute the practice of medicine, health care, health care operations, or Notwithstanding any other provision inthis Agreement to the contrary, the Parties hereby covenant and agree that the relationship between the Partiescreated in this Agreement is not intended to, shall not, and in fact does not, affect or limit in any way the exercise of the independent professional judgment of any physician or professional employee employed by, or undercontract to, you and/or your Affiliates regarding the diagnosis or treatment of any patient. OutcomeMD makes no representations or guarantees of payment or coverage with respect to any Patient Survey or Billing Documentation Services. You are solely responsible for determining appropriate billing codes, billing frequency, and making all final billing-related decisions when submitting claims to Medicare or other insurers.
 
6.     TERM AND TERMINATION 
  • 6.1 Term. Subject to the early termination rights set forth in this Agreement, this Agreement shall have the same term as defined in the Master Agreement. The termination descriptions below apply to both agreements.
  • 6.2 Termination for Cause. In addition to any other remedies it may have, either Party may terminate this Agreement upon thirty (30) days’ prior written notice, in the event of a “Default” by the other Party that the other Party fails to cure within the thirty (30) days’ notice period. A “Default” means a (i) a material breach of this Agreement, Company Policies, the BAA or applicable laws or regulations; (ii) termination of the BAA; (iii) non-payment of Fees owed; (iv) the filing of bankruptcy, receivership or similar proceeding due to insolvency (voluntarily or involuntarily),of the other Party; (v) the dissolution, liquidation or other discontinuation of a significant part of the other Party’sbusiness operations or the threat to cease to carry on a significant part of its business operations; or (vi) a materialadverse change in the other Party’s financial condition or failure to meet any of its obligations when due.
  • 6.3 Additional Termination Rights. In addition to any other remedies it may have, either Party may suspend Services or terminate this Agreement, effective immediately, upon such other Party’s exclusion, suspension, debarment, or other sanction against participation in any federal or state healthcare, procurement or non-procurement program, including Medicare, Medicaid, or TRICARE/CHAMPUS program, or conviction or violationof any federal or state fraud and abuse or illegal remuneration law.
  • 6.4 Additional Suspension In addition to any other remedies it may have, OutcomeMD may suspendCustomer’s right to access or use any portion or all of the Services immediately until such time as the condition triggering such suspension is, as determined in OutcomeMD’s sole discretion, resolved, if (x) OutcomeMD, in itssole discretion, believes Customer, or an HCP in Customer’s Network, as applicable, does not have the requiredconsents to share Patient Data; or (y) Customer or its Authorized User’s use of the Services (i) poses a security risk to the Services or any third party; (ii) could adversely impact OutcomeMD’s systems, the Services or the systems, Customer Data, Patient Data, or Service Data of any of OutcomeMD’s other customers or end users; (iii)could subject OutcomeMD or any third party to liability; or (iv) could be fraudulent or illegal. OutcomeMD will not have any liability for any Losses (including any loss of data or profits), or any other consequences that OutcomeMD or any third party may incur as a result of any such suspension.
  • 6.5 Effects of Suspension or Termination. If, at any time, any of the Services or this Agreement (or any portionhereof) are suspended or terminated for any reason, you agree to pay all Fees in full for the Services up to and including the last day on which the Services are provided and you will not be entitled to a refund of anyamounts paid, to the fullest extent permitted by Upon any termination (other than termination by theOutcomeMD for cause), OutcomeMD will make all Customer Data and Patient Data available to Customer; provided, however Customer will not otherwise be able to utilize the Services, the Platform or the PROs. Notwithstanding anything stated to the contrary, all sections of this Agreement which by their nature should survive termination will survive termination. Upon termination of this Agreement by either Party, (i) the Parties shallimmediately discontinue making all representations or statements from which it might be inferred that any relationship exists between OutcomeMD and Customer; (ii) Customer shall immediately return to OutcomeMD all Marketing Material in its possession, custody or control in whichever form held (including all copies of embodiments thereof) and (iii) each Party shall immediately cease using any of the other Party’s Service Marks.
 
7.     COMPENSATION AND INVOICING
  • 7.1 Payment. Fees and payment schedules will be set forth in each Order Form. Payments can be made via ACH, wire transfer, check, or credit card within thirty (30) days of your receipt of the invoice.
  • 7.2 Dispute: If you believe you have been billed incorrectly, you must contact OutcomeMD in writing no later thanthirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in orderto receive an adjustment or credit. Inquiries should be directed to billing@outcomemd.com.
  • 7.3 Taxes. The amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall be responsible for all taxes associated with the Services. You agree to reimburse OutcomeMD and hold OutcomeMD harmless for all sales, use, VAT, excise, property or other taxes or levies which OutcomeMD is required to collect or remit to applicable tax authorities. Notwithstanding the foregoing, this provision does not apply to OutcomeMD’s income or franchise taxes, or any taxes for which you are exempt,provided you have furnished OutcomeMD with a valid tax exemption certificate.
 
8.     CONFIDENTIALITY
  • 8.1 Proprietary Information. Each Party (the “Receiving Party”) understands that the other Party (the “DisclosingParty”) has disclosed, or may disclose, Proprietary Information relating to the Disclosing Party’s The Receiving Party agrees (i) to keep such Proprietary Information confidential; (ii) not to use or divulge to any thirdperson (except as expressly authorized by this Agreement) any such Proprietary Information; and (iii) to limit access to the Disclosing Party’s Proprietary Information to those of its Representatives who are bound by confidentiality obligations at least as restrictive as those contained herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after seven (7) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally publicly known without breach of this Agreement, (b) was in its possession or known by its prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, with respect to any Proprietary Information which constitutes PHI or which qualifies as a trade secret, the obligations of confidentiality and non-useshall remain in place for so long as the applicable Proprietary Information retains its status as PHI or a trade secret, as applicable, under applicable law.
  • 8.2 Mandated Disclosure. The Receiving Party may disclose Proprietary Information of the Disclosing Party withoutliability hereunder to comply with applicable laws or regulations or in response to a valid order or requirement by a court or other governmental body, provided that the Receiving Party gives the Disclosing Party prior written notice of such disclosure in order to permit the Disclosing Party to seek an appropriate protective order. In the event the Receiving Party is legally obligated to disclose Proprietary Information of the Disclosing Party, the Receiving Partyshall furnish only that portion of the Proprietary Information which the Receiving Party is advised by the Receiving Party counsel is legally To the extent permitted by applicable law, the Parties shall cooperate with each other to minimize the disclosure of the Proprietary Information consistent with the applicable order or law.
 
9.     INTELLECTUAL PROPERTY RIGHTS
  • 9.1 License. Subject to your compliance with this Agreement, and provided we have not terminated or suspended all,or any portion of, this Agreement or your Services, OutcomeMD grants to you a limited, non-exclusive, non-sublicensable, revocable, non-transferable, license for your Authorized Users to access and use the Platform, thePROs, the Professional Services deliverables, and any software and deliverables that may be made available to you through the Services, in each case solely during the Term and exclusively for your internal business purposes. Any rights not expressly granted herein are reserved by OutcomeMD and OutcomeMD’s licensors. OutcomeMD alone (and its licensors, where applicable) shall own all right, title and interest, including, without limitation, allrelated intellectual property rights, in and to the Services, including, without limitation, to the PROs.
  • 9.2 License is Private to Customer. We do not grant you a license, and you acknowledge that you are not permitted to sell, distribute, or publish in any way to any other party without express written permission from OutcomeMD, any portion of the Services (including any PROs) or any derivative or modification of the Services created by you,even if we otherwise publish or redistribute the Services or any portion thereof.
  • 9.3 License to Customer Data; Patient Data. You grant us a worldwide, non-exclusive license to use, disclose, host, copy, process, transmit, and display Customer Data and Patient Data for the purpose of providing the Services toyou, and, to the extent applicable, to your You also grant us a worldwide, non-exclusive license to share De-identified Patient Data collected as part of our engagement. Subject to this limited license, as between us and you, Customer retains all right, title, and interest, including all related intellectual property rights, in and to the Customer Data.
  • 9.4 Service Data, Customer Data, Patient Data, PROs. Subject to Customer’s ownership rights outlined herein and applicable laws and regulations, including, without limitation, HIPAA, OutcomeMD shall have the right, which rightshall survive termination of this Agreement, to (i) collect, use, and disclose De-identified, aggregated Service Datafor any lawful business purposes, including, without limitation, (a) for accounting, tax, billing, audit, and compliance purposes; (b) to provide, develop, optimize, and maintain the Service; (c) to investigate fraud, spam, wrongful or unlawful use of the Services; and (d) as required by applicable law; and (ii) retain and use De-identified CustomerData, Patient Data and PROs, as well as any data that is based on or derived therefrom, for the purposes of disclosing such data solely in aggregate or other De-identified form in connection with OutcomeMD’s business and any other lawful purpose, including, without limitation, analyses, publications, studies, presentations, evaluations, characterizations, research, and marketing. For the avoidance of doubt, except as otherwise agreed upon in writing by Customer or otherwise required by applicable law, regulation or court order, any disclosure of Customer Data, Patient Data or PROs by OutcomeMD to third parties for the purposes of (ii) above you will only be in a De-identified Furthermore, OutcomeMD shall ensure that any agreement for such disclosure to a third party includes a contractual prohibition on re-identifying the data.
  • 9.5 OutcomeMD IP. Notwithstanding the foregoing, OutcomeMD shall own and retain all right, title and interest in and to (a) the Services, including, without limitation, the Platform and PROs, and all improvements, enhancements ormodifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation services (if any) or support, and (c) all intellectual property rights related to any of the Notwithstanding anything stated to the contrary herein, no rights or licenses are granted except as expressly set forth herein.
  • 9.6 Use with Other Customers. We reserve the right to use the Services or any portion thereof for any and all purposes. We intend and reserves the right, and you hereby acknowledge our intent and right, to incorporate theServices or any portion thereof into projects for customers other than you, and, without limitation, to license the Services or any portion thereof to other customers and other third parties.
  • 9.7 Marketing. Customer consents to OutcomeMD using Customer’s and clinician names to identify Customer as acustomer of OutcomeMD and in Marketing Materials.
  • 9.8 Feedback. You hereby grant us a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual licenseto use, reproduce, translate, modify, create derivative works from, distribute, and incorporate into the Services, any suggestions, enhancement requests, recommendations or other feedback provided by you or your AuthorizedUsers relating to Notwithstanding anything stated to the contrary in this Agreement, this irrevocable license will continue after the expiry or termination of this Agreement for any reason.
 
10.  COMPLIANCE
  • 10.1 Applicable Law; HIPAA. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the Company Policies, this Agreement and all applicable laws and regulations. The Partiesshall comply with all privacy and security laws, including, without limitation, HIPAA and the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Pub. Law No. 111-5 and the regulations promulgated thereunder (which shall be included in the definition of “HIPAA” as used in this Agreement), as amended from time to time.
  • 10.2 Procurement Programs. Customer represents, warrants, and covenants to OutcomeMD that neither Customer nor its Affiliates nor their respective Representatives is or has been excluded terminated, suspended, or debarred from a federal or state health care program or from participation in any federal or state procurement or non-procurement Customer further agrees that if during the Term of this Agreement it or any of its Affiliates ortheir respective Representatives becomes so excluded, terminated, suspended, or debarred from such a program,Customer shall within three (3) business days of such exclusion, termination, suspension or debarment notify the other Party. OutcomeMD retains the right to immediately suspend, terminate or modify this Agreement in the event of your (or your Affiliates or your respective Representatives) exclusion from a federal or state health care program.
 
11.  CERTAIN TERMS FOR OUTCOMEMD TRACKING SERVICES ONLY
  • 11.1 Patient Consent. Customer understands and agrees that Customer is responsible for ensuring that every patient or patient parent or guardian has given consent to the transfer, creation, and/or use of all Patient Data, as requiredby applicable law, this Agreement, and any applicable BAA for OutcomeMD to provide the Services to Customer,and to the extent applicable, Customer’s Network.
  • 11.2 Marketing. OutcomeMD and Customer are each responsible for compliance with all laws relating to thetransmission of text messages, automated or pre-recorded phone calls, emails, and other communications; including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (codified at 15 U.S.C. Chapter 103), the Telephone Consumer Protection Act of 1991 (codified at 47 S.C. 227 et seq.), Do-Not-Call legislation and all similar international, federal or state laws. Without limiting the foregoing, Customer is solely responsible for obtaining any consent or other permission required by such laws from patients or patient parents or guardians to send communications under this Agreement.
 
12.  CERTAIN TERMS FOR OUTCOMEMD ACCESS SERVICES ONLY

Prior to receiving OutcomeMD Access Services with regard to the Patient Data and Customer Data of an HCP within Customer’s Network that is neither an Affiliate or Representative of Customer, Customer, as a “BusinessAssociate” of a “Covered Entity”, as such terms are defined under HIPAA, understands and agrees that such HCPmust consent, in writing, and in compliance with the requirements of HIPAA and other applicable laws, to the disclosure to Customer of Patient Data and Customer Data of such HCP’s patients, Authorized Users, and Representatives, as applicable. Customer understands and agrees that Customer is responsible for ensuring that such HCP within its Network provides such consent to us, in form and substance reasonably satisfactory to us.

 
13.  CERTAIN TERMS FOR OUTCOMEMD REPORTING SERVICES ONLY

If you are receiving OutcomeMD Reporting Services, any disclosure of Customer Data, Patient Data or PROs byOutcomeMD to you will only be in a De-identified format. Furthermore, you understand and agree that you maynot, nor direct any other party to, “re-identify” the data.

 
14.  CERTAIN TERMS FOR OUTCOMEMD PROFESSIONAL SERVICES ONLY
  • 14.1 Professional Services. To the extent you require Professional Services, we will work with you to define the scope of, and deliver upon, the applicable Professional Services to be provided, the details, fees and timeline for delivery of which, will be further set forth in a separate order Notwithstanding the foregoing, we reserve the right todetermine, in our sole discretion, whether your requests are outside the scope of our Professional Services offerings.
  • 14.2 Ownership. As set forth in Section 1, OutcomeMD hereby grants you a license to use the Professional Services deliverables; provided, however, notwithstanding anything contained herein to the contrary, OutcomeMD retains allrights in and to any Professional Services deliverables.
  • 14.3 Integrations. To the extent that you use the Services to establish integrations or other connections with one or more components of your environment (including components of your environment hosted by third parties), you grant OutcomeMD the right, and expressly instruct OutcomeMD, to access and interoperate with that componentduring the Term in order to provide and support the Services. You are responsible for complying with all applicable third-party terms, policies, and licenses governing access and use of such components and associated Youfurther understand and agree that (i) you are responsible for facilitating the relationship between OutcomeMD and any such third party and (ii) to the extent Patient Data will be shared by and between Outcome MD and such thirdparty, you are responsible for ensuring that (x) the required BAAs and consents are in place to allow such third party to share such Patient Data with us, and (y) such third party enters into a data processing agreement with us in compliance with HIPAA and in form andsubstance reasonably satisfactory to us.
 
15.  CUSTOMER INTRODUCTIONS
  • 15.1 Customer Introductions. If Customer elects to introduce OutcomeMD and its Services to HCP’s within Customer’s Network (“Prospective Providers”), Customer agrees to (i) promote the Services to such Prospective Providers, including via direct emails and webinars developed by OutcomeMD, in good faith, with the frequency andmethod of such promotions to be determined solely by Customer; and (ii) direct introductions to Prospective Providers to OutcomeMD, in good faith, with the frequency and method of such introductions to be determined solely by the Customer. OutcomeMD shall be responsible for any further communications in furtherance of relationships with Prospective Provider(s). Nothing herein shall require Customer to provide a certain number of Prospective Providers or be deemed to create any agency between OutcomeMD and Customer. Customer shall exercise its own independent professional judgment in determining whether to introduce Prospective Providers to OutcomeMD or the Services.
  • 15.2 Access to Services. Customer shall not provide access to any of the Services to Prospective Providers without a further mutually agreed upon amendment hereto.
  • 15.3 License. Subject to the terms and conditions of this Agreement, OutcomeMD hereby grants to Customer a limited, non- exclusive, and non-transferable right and license during the Term to use OutcomeMD’s Service Marks in any Marketing Materials for the sole purpose of introducing and marketing the Services to Prospective Providers or patients, subject to the prior written approval of such Marketing Materials by OutcomeMD.
  • 15.4 Marketing. Customer shall submit to OutcomeMD, without charge, for inspection and written approval by OutcomeMD, complete and accurate specifications and all copy, layouts, slogans, websites artworks, graphicmaterials, photography and related detail for all Marketing Materials mentioning OutcomeMD prior to use. Customer specifically undertakes to revise, to the reasonable satisfaction of OutcomeMD, any such MarketingMaterials that are not approved by Nothing set forth herein shall be deemed to obligate the Customer to use the OutcomeMD’s Service Marks or Marketing Materials. In the event OutcomeMD requires alterations to the Marketing Materials after approval, OutcomeMD shall credit Customer for the reasonable cost of such alterations; provided, however, if the Marketing Materials must be altered due to a failure by Customer to comply with OutcomeMD’s marketing guidelines or applicable laws or regulations for any reason outside of OutcomeMD’s reasonable control (e.g., changes in applicable laws or regulations), Customer shall be responsible for all such costs. In no event, however, shall OutcomeMD be responsible for any costs relating to any physical signage or any alterations thereto.
  • 15.5 Reputation. The Parties shall (i) conduct business in a manner that reflects favorably at all times on each of theParties and the Services and the good name, goodwill, and reputation of the Parties; (ii) strictly avoid any and all deceptive, misleading, illegal, immoral or unethical practices that are or might be detrimental to the Parties or the Services, including disparagement of the Parties or the Services; (iii) make no false or misleading representation with respect to the Services; and (iv) make no representations, warranties or guarantees to Prospective Providers with respect to the specifications, features or capabilities of the Services that are inconsistent with the Services and Marketing Materials distributed by OutcomeMD or otherwise not authorized by OutcomeMD in writing.
  • 15.6 Fair Market Value. The Parties each acknowledge and agree that the financial terms set forth in this Agreementhereunder have been negotiated at arm’s length, and are intended to represent fair market value for the exchange of Services to be rendered hereunder, and that the financial terms have not been determined in a manner whichtakes into account the volume or value of any referrals or business otherwise generated or to be generated between and among the parties and each of their respective affiliates, nor are any such referrals There shall be no adjustment to the financial terms agreed to hereunder due to the presence or absence of any introduction, recommendation or referral by Customer or Customer’s or the Prospective Providers’ separate purchases of Services from OutcomeMD. Further, Customer acknowledges that OutcomeMD has not offeredanything of value to induce Customer to enter into this Agreement or to refer any Prospective Provider to purchase Services. The Parties further represent, warrant and agree that Services do not involve the counseling or promotion of a business arrangement or other activity that violates any state or federal law, and the Services do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purpose ofthe Services.
  • 15.7 Access to Books and Records. Until the expiration of four (4) years after the furnishing of the Services provided under this Agreement, Customer shall make available to the Secretary, United States Department of Health and Human Services, and the United States Comptroller General, and their representatives, a copy of this Agreementand such books, documents and records of the Customer that are necessary to certify the nature and extent of any cost incurred by either Party. If Customer carries out the duties of the Agreement through a subcontract worth $10,000 or more over a 12-month period with a related organization, the subcontract shall contain a clause placing the same obligations on subcontractor as this clause places on Customer.
 
16.  DISCLAIMER; LIABILITY
  • 16.1 Limited Warranty. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNLESS OTHERWISE SPECIFIED IN WRITING. OUTCOMEMD DISCLAIMS ALL REPRESENTATIONSAND WARRANTIES (EXPRESS, IMPLIED, STATUTORY AND OTHERWISE), IN RESPECT OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, NON- INFRINGEMENT, TITLE, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, OUTCOMEMD DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, MEETANY PERFORMANCE OR RELIABILITY STANDARDS OR WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE FROM VIRUSES OROTHER HARMFUL COMPONENTS. WHILE REASONABLE EFFORTS HAVE BEEN MADE TO ENSURE MATERIALS ARE ACCURATE AND RELIABLE WHEN POSTED ON THE PLATFORM. OUTCOMEMD DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE. NOR DOES OUTCOMEMD WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF SERVICES. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK.
  • 16.2 Exclusion of Liability. Notwithstanding anything stated to the contrary herein, in no event will the Released Parties be liable for lost revenues, lost profits or any special, incidental, or consequential damages, whether in an action in contract or tort, or otherwise, even if the covered party has been advised of the possibility of such damages. You and OutcomeMD agree to this limitation even if the remedy for any breach of this agreement fails of its essential purpose.
  • 16.3. Limitation on Liability. Notwithstanding anything stated to the contrary, the Released Parties total liability to you under this Agreement for Losses will not exceed the greater of one hundred thousand dollars ($100,000) or the Fees paid to OutcomeMD byCustomer under this Agreement for the 12-month period prior to the act that gave rise to the Losses; provided, however, the foregoing limitation shall not apply to claims arising from (a) a breach of the BAA; (b) breach of applicable law; or (c) fraud, death or personal injury caused by OutcomeMD’s own gross negligence or willful misconduct. The foregoing limitations shall apply notwithstanding any failure of essential purpose or any remedy and whether OutcomeMD has been advised of the possibility of such damages. The Parties agree that this Section, and Section 13.2, represent a reasonable allocation of risk.

    Notwithstanding anything stated to the contrary, the Released Parties shall not be liable for delay or failure in performance resulting from causes beyond OutcomeMD’s reasonable control, including, without limitation, delays and other problems inherent in the use of the internet and electronic communications. OutcomeMD is notresponsible for any delays, delivery failures, or other damage resulting from such problems.

  • 16.4 Agreement. YOU AND OUTCOMEMD AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BYEACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND OUTCOMEMD AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE
 
17.  INDEMNIFICATION
  • 17.1 Customer Indemnification. You agree to indemnify and hold the Released Parties harmless from and against any Losses arising out of or in connection with (a) your use of the Services; (b) your breach of this Agreement, the Company Policies, the BAA, or applicable laws, rules or regulations; (c) your violation of any rights of a third party, including intellectual property rights; and (d) any act or omission by you that results in (i) bodily injury, sickness,disease or death; or (ii) damage, injury or destruction to tangible or intangible property.
  • 17.2 OutcomeMD Indemnification. OutcomeMD shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided OutcomeMD is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and OutcomeMD will not be responsible for any settlement it does not approve in writing. The foregoing obligations donot apply with respect to portions or components of the Services (i) not supplied by OutcomeMD, (ii) made in wholeor in part in accordance with Customer specifications, (iii) that are modified after delivery by OutcomeMD, (iv) combined with other products, processes or materialswhere the alleged infringement relates to such combination, (v) where Customer continues allegedly infringingactivity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed byOutcomeMD to be infringing, OutcomeMD may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing iscommercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
 
18.  EXPORT CONTROL

The Services may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department ofCommerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department ofState. Customer warrants that it is (1) not located in any country to which the United States has embargoed goodsor has otherwise applied any economic sanctions; and (2) not a denied party as specified in any applicable export or re-export laws or regulations or similar laws applicable in other jurisdictions.

Customer agrees to comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not– directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any the Services, including, without limitation, the products, software, or technology (including products derived from or based on such technology) received from OutcomeMD, to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. As defined in FAR section 2.101, the Softwareand documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance,display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

 
19.  CHOICE OF LAW

This Agreement is governed by the FAA, AAA Rules, federal arbitration law, and the laws of the State of California, without regard to the choice or conflict of law principles of any jurisdiction, except as may be otherwise provided in the Arbitration Agreement contained in this Agreement. This choice of law provision applies only to the interpretation of this Agreement and is not intended to create any other substantive right to non-Californians to assert claims under California law or bring claims in California courts whether that be by statute, common law, orotherwise. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law.

 
20.  DISPUTE RESOLUTION

By agreeing to this Agreement, you agree that you are required to resolve any claim that you may have against OutcomeMD on an individual basis in arbitration, rather than in court, as set forth in this Arbitration Agreement.More specifically, in the event of any material conflict under this Agreement, the Parties agree that, as a first step, within thirty (30) days of the disput e, the CEOs from each Party shall try to resolve the issue in good faith via one or several phone calls or another mutually agreed upon manner. In the event such efforts are unsuccessful, theParties agree to arbitrate any such dispute, claim, or demand, including all claims regarding arbitrability, inaccordance with the Commercial Arbitration Rules and Expedited Procedures of the American ArbitrationAssociation (“AAA”) (Rules E-1–E-10), regardless of the amount in controversy. Such arbitration will take place in Wilmington, Delaware, though either Party may elect to participate telephonically or entirely upon submissions.

 
21.  EXCLUSIVE VENUE

To the extent the parties are permitted under this Agreement to initiate litigation in a court, the parties agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federalcourts located in the United States District Court for the district in which you reside.

 
22.  NOTICE

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Where OutcomeMD requires that you provide an e-mail address, youare responsible for providing OutcomeMD with your most current e-mail address. In the event that the last e-mail address you provided to OutcomeMD is not valid, or for any reason is not capable of delivering to you any noticesrequired or permitted by this Agreement, OutcomeMD’s dispatch of the e- mail containing such notice will constitute effective notice. You may give notice to OutcomeMD through the following address, support@outcomemd.com. Such notice shall be deemed given on the next business day after such e-mail is actually received by OutcomeMD.

 
23.  ELECTRONIC COMMUNICATIONS

For contractual purposes, you understand and agree (a) to receive communications from OutcomeMD in an electronicform; and

(b) that all terms and conditions, agreements, notices, disclosures, and other communications that OutcomeMD provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You may withdraw your consent to the use of the electronic record by emailing us at support@outcomemd.com with “Revoke Electronic Consent” in the subject line.

 
24.  FORCE MAJEURE

No failure or omission by either Party in the performance of any obligation of this Agreement will be deemed a breach of this Agreement or create any liability if the same will arise from any cause or causes beyond the control of such Party, including, without limitation, the following: acts of god, storm, flood, or earthquake; any act, rule,regulation, order or requirement of any governmental authority or by any officer, department, agency or instrumentality thereof; fire; accident; war; rebellion; insurrection; riot; invasion; national emergency; pandemic; lack of or inability to obtain fuel or power; or other similar causes beyond the control of such Party provided thatsuch Party provides notice to the other Party of such an event and such failure or omission resulting from one of the above causes is cured as soon as is practicable.

 
25.  GENERAL

You may not assign this Agreement without our prior written approval. We may assign this Agreement withoutrestriction. This Agreement binds and inures to the benefit of each Party and the Party’s successors and permitted assigns. Any purported assignment by you in violation of this section shall be void. No agency, partnership, jointventure, or employment is created as a result of this Agreement, or the Services and Customer does not have anyauthority of any kind to bind OutcomeMD in any respect whatsoever. OutcomeMD may use subcontractors, provided OutcomeMD requires subcontractors to comply with applicable portions of this Agreement and applicable laws and regulations. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. All waivers andmodifications must be in a writing signed by both Parties, except as otherwise provided herein. Our failure toenforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unlessacknowledged and agreed to by us in writing. This provision shall not affect the severability and survivability section of the Arbitration Agreement of this Agreement. This Agreement supersedes prior agreements or arrangements with you regarding the use of the Services, unless explicitly stated otherwise.

 
26.  CONTACT

If you have any questions regarding this Agreement or the Services, please contact support@outcomemd.com.

 

 

Exhibit A

 
Service Level Terms

OutcomeMD will provide technical support to Customer via electronic mail or via our web portal onweekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays(“Support Hours”). Customer may initiate a helpdesk ticket any time by using the support section of our web portal or emailing support@outcomemd.com. OutcomeMD will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days.

The System shall be available 99% of the time, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages ofthird-party connections or utilities or other reasons beyond OutcomeMD’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and OutcomeMD’s entire liability, in connectionwith Service availability shall be that for each period of downtime lasting longer than sixty minutes, OutcomeMD will credit Customer 3% of subscription fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to OutcomeMD) recognizes that downtime is taking place and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify OutcomeMD in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right toreceive downtime credit. Such credits may not be redeemed for cash, shall not be cumulative beyond a total of credits for one (1) week of subscription fees in any one (1) calendar month in any event, and shall not accrue to the extent you receive the services without fees. OutcomeMD will only be applied as a credit to the following month after which the incident occurred. OutcomeMD’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of OutcomeMD to provide adequate service levels under this Agreement.