ACG® License – Customer’s Clients Flow-Down Provisions

DST Health Solutions, LLC d/b/a SS&C Health (“SS&C Health”) has entered into an agreement with Prime DataQ Health, LLC (“Customer”) to license certain software (“Programs”) developed by The Johns Hopkins University through John Hopkins HealthCare (“JHHC”). Customer has agreed that as a condition of providing its clients (“Client”), access to the results of the Programs, the following flow down provisions will be expressly incorporated into all agreements with a Client or included with the results provided to a Client, which may not be modified or amended without the prior written approval of SS&C Health.

 

Therefore Client agrees as follows:

1. Title to and Ownership of Programs, Client acknowledges that the Programs licensed by Customer are the commercially valuable, proprietary products and property of JHHC and/or SS&C Health (collectively, the “Owners”). Client further acknowledges that the Owners have invested substantial time and economic resources in the design and development of the Programs, which required the efforts of skilled development experts, and that the Owners treat the Programs as confidential and that the Programs constitute trade secrets of the Owners, regardless of whether the Programs are or may be copyrighted or patented. Title, full ownership and all proprietary rights to its Programs shall remain with each Owner. Client shall neither receive nor retain any interest in the Programs (other than the right to access the results of the Programs in accordance with the provision of this Agreement) nor will any right be vested in Client to transfer access to the results of the Programs to any other entity.
2. Client’s Client acknowledges and agrees that the Owners relationship with the Customer is solely that of a supplier and that it is solely the Customer’s and Client’s responsibility to determine their own data processing requirements and to satisfy themselves that the Programs meet such requirements. The Client further acknowledges and agrees that it is responsible for the selection of data and use of the Programs to achieve Client’s intended results.

Client shall keep and make available to Customer, upon request, true and accurate records of and account for the use and distribution of all copies of the results of the Programs made by Client including all the data reasonably required for the verification of the number of Covered Lives. All copies of the results of the Programs shall include the following notice: “The information herein contained has been processed by a software called The Johns Hopkins ACG^® System © 1990, 2017, Johns Hopkins University. All Rights Reserved.”

3. Restrictions on Except as required to further the Customer’s authorized use of the Programs under the Customer’s agreement with SS&C Health, Client has no right or license to and covenants not to, directly, indirectly, alone or with another party,: (i) sell, lease, sublicense, distribute, or otherwise transfer the Programs to any Person, in whole or in part; (ii) print, copy, reproduce, distribute, modify, transfer, transmit (whether physically or electronically), assign, create any derivative works based on, or in any other manner duplicate the Programs in whole or in part; (iii) decompile, disassemble, translate, or otherwise reverse-engineer the Programs or any part of the Programs; or (iv) obtain or use the source code for the Programs in whole or in part.
4. Use of the Programs. The Programs are provided as an information resource on measuring population morbidity for those with expertise in risk-adjustment models. The Programs should be used for informational purposes only. Neither information contained in the Programs nor the output from the Programs constitutes recommendations for or advice about medical treatment or business practices. Client acknowledges and agrees that it will be responsible for its own behavior and the results created from use of the Programs and its output.
5. Non-Disclosure. Client agrees not to transfer, distribute or disclose the results of the Programs, or any part thereof, to any other individual or Client shall use all reasonable efforts to confine knowledge and use of the results of the Programs solely to its employees who require such knowledge and use thereof in the ordinary course and scope of their employment by Client and agree to these flow-down terms and conditions. Client shall not permit access to or use of the results of the Programs by third parties, including, but not limited to, consultants, unless such third parties are bound by obligations of confidentiality that extend to and protect the Programs and the results of the Programs.

Client shall immediately notify Customer and the Owners upon discovery of any loss or unauthorized disclosure of the results of the Programs, in whole or in part.

6. WARRANTY THE RESULTS OF THE PROGRAM ARE PROVIDED “AS IS” AND THE OWNERS HAVE MADE NO REPRESENTATION OR WARRANTIES WITH RESPECT TO THE RESULTS OF THE PROGRAMS OR THE PERFORMANCE OF THE PROGRAMS INCLUDING ITS SAFETY, EFFECTIVENESS, OR COMMERCIAL VIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE OWNERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND TO CLIENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. THE OWNERS DO NOT WARRANT THAT THE PROGRAMS OR RESULTS OF THE PROGRAMS WILL MEET CLIENT’S REQUIREMENTS OR THAT THEY WILL OPERATE IN COMBINATION WITH SOFTWARE OR EQUIPMENT OBTAINED BY CLIENT OR CUSTOMER FROM ANOTHER SOURCE, OR THAT OPERATION OF THE PROGRAMS OR THE RESULTS OF THE PROGRAMS WILL BE ERROR FREE.
7. LIMITATION OF CLIENT AGREES THAT IN NO EVENT SHALL THE OWNERS’ TOTAL CUMULATIVE LIABILITY TO CLIENT FOR ANY LOSS, INJURY, DAMAGE OR EXPENSE UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, OR OTHER TORTS, ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF, OR PERFORMANCE OF, THE PROGRAMS, RESULTS OF THE PROGRAMS OR PROVISIONS OF ADDITIONAL PRODUCTS OR SERVICES RENDERED HEREUNDER BY THE OWNERS EXCEED ONE HUNDRED DOLLARS ($100.00). UNDER NO CIRCUMSTANCES SHALL THE OWNERS BE LIABLE FOR PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, DATA, USE OR INFORMATION, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGE TO PROPERTY, INJURY TO PERSONS, LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION IT ARISES FROM, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, WARRANTY, TORT, DELAYS, INCONVENIENCE, STRICT LIABILITY, THIRD PARTY CLAIMS AGAINST CLIENT ARISING FROM THE USE OF THE PROGRAMS, PERFORMANCE OF THE PROGRAMS, RESULTS OF THE PROGRAMS, PROVISION OF ADDITIONAL PRODUCTS OR SERVICES RENDERED BY THE OWNERS, OR OTHERWISE, EVEN IF THE OWNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH LOSSES OR DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
8. Specific Limitation. Client agrees that the use of the Program for any purpose related to patient care must not be substituted for professional skill and Client acknowledges that SS&C Health and JHHC are not, and shall be in no way, responsible for the use of the Programs or the output of the Programs to make clinical decisions related to patient care. In no event shall SS&C Health or JHHC be liable to Client or Client’s members, clients, patients, providers, or customers, as applicable, for any damages relating to any personal injury or loss of life claims resulting from patient care.
9. Indemnification. Without regard to whether Client’s claim is based on the negligence, passive, active or otherwise, of the Owners, its contractors or both, Client hereby absolutely and unconditionally agrees to indemnify and defend the Owners and its contractors, and to hold them harmless from and against any and all claims, liabilities, costs, and damages (including attorneys’ fees) arising, made, incurred, or suffered, directly or indirectly, by a Person from or in connection with Client’s use of the Programs for any reason, including: (a) to determine whether, and under what circumstances, a Person is or is not entitled to be reimbursed or compensated for medical treatment or care administered or received, or proposed to be administered or received, in a hospital or other medical facility (whether inpatient or outpatient); (b) to determine whether, and under what circumstances, any Person is or is not entitled to be admitted to a hospital or other medical facility (whether inpatient or outpatient); and (c) any negligent act, omission or misconduct caused by Client or Client’s members, clients, patients, providers, or customers, as applicable, in undertaking and refusing to undertake professional medical services and for any errors, misinformation, or undocumented information in the data input to the Programs.
10. Third Party The Owners (JHHC and SS&C Health) shall be third-party beneficiaries of this Agreement.
11. Survival. The following flow-down provisions shall survive the expiration or termination of the agreement between Customer and Client: Section 1 (Title to and Ownership of Programs, Modifications) Section 5 (Non-Disclosure), Section 6 (Warranty Disclaimer), Section 7 (Limitation of Liability), Section 8 (Indemnification), Section 9 (Third Party Beneficiary), this Section 10 (Survival), and Section 11 (Equitable Relief).
12. Equitable Relief. For disputes relating to this Agreement, Client acknowledges and agrees that Customer and Owners will be irreparably harmed, will not have an adequate remedy at law, and therefore will be entitled to equitable relief, including orders for specific performance and injunctions, in addition to all other legal remedies, such as damages, without showing or proving any actual damage and without any
13. Effective Date. The effective date shall be the date of execution of the Master Agreement between the Client and Prime DataQ Health, LLC.

 

Client

 

______________________

By: