Terms of Service
These Terms of Service (“Terms of Service”) form part of the Master Service Agreement (the “Agreement”) entered into by and between Evolv Health LLC (“Evolv Health”) and the applicable healthcare services provider entity that is Evolv Health’s client (“Client”), and govern the provision and use of the “Services” (as defined in the subscription terms of the Agreement (the “Subscription Terms”)), including, without limitation, the Evolv Health post-acute discharge and transitional care services software platform that Evolv Health provides for access and use by Client as an online service, and/or any other services for which these Terms of Service are posted or referenced (the “Evolv Health Software Platform”). Client shall designate authorized individual users to access and use of the Evolv Health Software Platform (each hereinafter referred to as a “User” and collectively, as “Users”) who shall all be required to comply with these Terms of Service with respect to the Services and all access to and use of the Evolv Health Software Platform, and failure by any User to comply with these Terms of Service shall constitute a breach of the Agreement by Client. User’s use of the Evolv Health Software Platform constitutes User’s acceptance of and agreement to comply with these Terms of Service.
Client represents and warrants that each User is over the age of 18 and has the capacity and authority to comply with and be bound by these Terms of Service. If User accesses and/or or uses the Evolv Health Software Platform on behalf of an entity other than Client, User represents and warrants that User has legal authority to bind such entity to these Terms of Service, and in such event the terms “User” and “User” also refer to such entity, except that if User does not have actual legal authority to bind such entity, User is and shall be personally bound and liable under these Terms of Service and User agrees to indemnify Evolv Health with respect to any claims, losses, expenses (including, without limitation, legal expenses), damages or other liability (collectively, “Claims”) arising or resulting therefrom. Evolv Health shall not have any liability for any Claims arising or resulting from reliance on any representation, warranty, agreement, instruction, notice or communication received from any User whether on User’s own behalf or on behalf of such entity.
1. PROVISION AND USE OF THE SERVICES.
Subject to payment of the applicable fees as provided in the Subscription Terms and Client’s and User’s full and ongoing compliance with the terms and conditions of these Terms of Service and other terms of the Agreement, Evolv Health shall provide the following Services:
1.1 Evolv Health Patient Discharge Coordination Support Services. Evolv Health shall provide patient discharge coordination Services referred to in the Subscription Terms and Attachment A to the Agreement. Timing, scheduling and frequency of such Services shall be determined by mutual agreement of the parties as part of the initial implementation of the Services.
1.2 Evolv Health Strategic Consulting Services. If indicated in Attachment A as included in Client’s subscription, Evolv Health shall provide the strategic consulting Services referred to in the Subscription Terms and Attachment A to the Agreement. Timing, scheduling and frequency of such Services shall be determined by mutual agreement of the parties.
1.3 Evolv Health Software Platform Services. Evolv shall provide to Client limited, revocable, non-exclusive, non-transferable, non-sublicenseable authorization for Client and its Users to access and use the Evolv Health Software Platform specified in the applicable Subscription Terms solely for their patient discharge and post-discharge coordination services for discharges of patients at the Client Locations covered by Client’s subscription. To the extent that Evolv Health makes the Evolv Health Software Platform available for direct integration with Client’s information technology systems, Evolv Health grants to such Client a personal, limited, revocable, non-transferable, non-sublicensable right to use such integration without modification to integrate its systems with Evolv Health Software Platform solely for such purpose. Additional Evolv Health Software Platform and Locations may be added by Clients by contacting Evolv Health regarding same, subject to the parties executing a service order and payment of the applicable additional fees and charges for same.
1.4 Client Responsibilities. Client acknowledges and agrees that the Services do not include or constitute the provision of medical or other health care or treatment services or the creation of any patient discharge, post-discharge or other care plan. Evolv Health’s Services only provide discharge and post-discharge workflow assistance and coordination for purposes of improving value, efficiency and patient customer service satisfaction. Client shall be solely responsible for providing all health care services, including, without limitation, all diagnoses, treatment and care and all instructions, prescriptions and decisions related to patient care. The Evolv Health Software Platform shall not be used for storage of patient medical records. Client acknowledges that Evolv Health shall not be responsible or liable for providing storage, data backup and disaster recovery services to Client for any patient data provided under this Agreement. Client is in no way relieved by this Agreement of any regulatory or contractual mandates, duties or responsibilities, and Client will retain all authority placed in it by applicable law, contractual obligations and internal policies as may be amended. Client and its Users shall not allow any unauthorized access to or use of the Evolv Health Software Platform (including, without limitation, by maintaining the confidentiality of all usernames, passwords, API keys, and similar access credentials), and Client will be solely liable for any and all activity or use of the Evolv Health Software Platform by Client’s Users. Client will notify Evolv Health promptly of any unauthorized access or use of the Evolv Health Software Platform and/or incorrect information submitted to Evolv Health to perform the Services. Client will take commercially reasonable action to mitigate any breach or suspected breach and will reasonably cooperate with Evolv Health in investigating and mitigating the unauthorized use or breach. Client and its Users will use the Evolv Health’s Services, including, without limitation, the Evolv Health Software Platform, only in accordance with these Terms of Service, applicable privacy policies, applicable laws, government regulations and third party agreements, if any, including without limitation, any and all laws, regulations, and obligations relating to healthcare services, privacy, publication of data or other content, consumer protection, advertising and data protection. Neither Client nor Users shall: (i) sell, resell, rent or lease the Evolv Health Software Platform, or make the Evolv Health Software Platform available to any third party on a service bureau basis, (ii) use the Evolv Health Software Platform to store or transmit malicious code, (iii) interfere with or disrupt the integrity or performance of the Evolv Health Software Platform or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Evolv Health Software Platform or related systems or networks or any other Client’s or User’s account or data. Client is responsible for verifying and controlling the data it provides as part of the Evolv Health Software Platform. Client will maintain industry standard organizational and technical security safeguards for patient and User data accessed or collected by Client through the Evolv Health Software Platform. If Client requires the use of Client’s or a third party’s proprietary assets (e.g. fonts, images, videos, etc.), Client will provide Evolv Health with any necessary permission or license for use of such proprietary asset as part of the Evolv Health Software Platform. EVOLV HEALTH EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY CLIENT OR USER CONTENT, OR ANY COMPLIANCE BY CLIENT OR USER WITH LAWS OR REGULATIONS GOVERNING HEALTH CARE OR HEALTH PROVIDERS. THE SERVICES AND ANY CONTENT, WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE EVOLV HEALTH SOFTWARE PLATFORM OR THROUGH ANY OTHER COMMUNICATIONS FROM EVOLV HEALTH, IS NOT INTENDED AS A SUBSTITUTE FOR, DOES NOT CONSTITUTE AND DOES NOT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. CLIENT’S AND USER’S USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION THE EVOLV HEALTH SOFTWARE PLATFORM AND/OR ANY SUCH CONTENT IS SOLELY AT CLIENT’S/USER’S OWN RISK. NOTHING STATED IN OR POSTED VIA THE SERVICES OR THE EVOLV HEALTH SOFTWARE PLATFORM IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTH CARE ADVICE OF EVOLV HEALTH, OR THE PROVISION OF ANY HEALTHCARE SERVICES BY EVOLV HEALTH. CLIENT AND USER SHALL NOT USE ANY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION THE EVOLV HEALTH SOFTWARE PLATFORM, FOR PURPOSES OF MAKING EMERGENCY COMMUNICATIONS.
1.5 Usage Limitations. The Evolv Health Software Platform may be subject to other limitations in the Agreement and/or other documentation and such limitations shall be deemed to be incorporated by reference into and made a part of these Terms of Service. Client and User will abide by any such limitations and will not attempt to exceed or circumvent such limitations. If Client or User exceeds, or Evolv Health reasonably believes that Client or User has circumvented any limitations, then Client’s and/or User’s ability to use the Evolv Health Software Platform may be temporarily or permanently blocked or suspended and Client may be subject to additional fees or other charges.
1.6 Support Services. Evolv Health will provide remote support services to Client to address reported incidents of the Evolv Health Software Platform not performing materially in accordance with applicable specifications when used by Client and User in accordance with the Agreement and all applicable documentation, in accordance with Evolv Health’s standard support procedures, which are included as Attachment D to the Agreement.
1.7 Fees and Payment. Client shall pay the applicable implementation, subscription and other fees and charges specified in the Subscription Terms of the Agreement in accordance with the payment terms set forth herein and in the Subscription Terms as a condition to the provision of the Services by Evolv Health, including, without limitation, any agreed upon access to and use of the Evolv Health Software Platform by Client and/or User. Fees for any additional products or services not specified in the applicable Subscription Terms shall be invoiced by Evolv Health to the applicable Client and are due and payable no later than thirty (30) days from the date of invoice. Monthly fees for each Renewal Period shall be subject to review by Evolv Health and shall be subject to fee increases from the prior twelve (12)-month period so long as Client is notified of such increase at least forty-five (45) days prior to the beginning of the Renewal Period for which the increase will take effect. Evolv Health shall provide notice of such increase(s) to Client upon calculation of the change and shall invoice Client for the amount of any deficiency in monthly fee payments during which such increase is applicable prior to such notification. Any failure by Client to timely pay applicable fees on or before the applicable due date shall constitute a material breach of the Agreement. Amounts not paid when due shall bear interest at the rate of one and one-half percent (1 1/2%) per month or the maximum legal rate, whichever is less, until paid in full (together with any accrued interest). All fees are nonrefundable except as otherwise agreed to by Evolv Health in writing. Client acknowledges and agrees that fees hereunder are not based on volume or value of referrals, or business otherwise generated between Evolv Health, Client or third parties, except as permissible by CMS.
1.8 Taxes. If any federal, state, local or foreign sales, use, property, value-added, excise or gross receipts taxes or any other taxes of any kind (other than Evolv Health’s income taxes) are imposed by applicable government authorities with respect to the provision of the Services, including, without limitation, any access to or use of the Evolv Health Software Platform or any license, software, hardware or other goods or implementation, support, maintenance or other services provided under the Agreement, then such taxes shall be billed to and paid by Client.
1.9 Additional Services and/or Services Locations. Clients may purchase additional Services and/or add Locations for use of the Evolv Health Software Platform under the terms of the Agreement at then current pricing or such other pricing as may be mutually agreed to by Evolv Health and Client by contacting Evolv Health and completing a separate service order with Evolv Health for same.
2. THIRD PARTY SERVICES.
The Services will include coordination with third party service providers engaged by Client or the applicable patient and the Evolv Health Software Platform may contain features designed to interoperate with third party applications, products or services (such as cloud-based services, web platforms, storage, and analytical services (all such third party services are collectively referred to as “Third Party Services”). To use such features, Client may be required to obtain access to such Third Party Services, or Evolv Health may be required to obtain access to such Third Party Services on behalf of Client, from the providers of such Third Party Services, and Client may be required to agree to the terms and conditions on which such third party provider offers such Third Party Services. If Client or its Users choose to use such features and Evolv Health is required to obtain access to Third Party Services on behalf of Client or Users, Client and Users authorize Evolv Health to access the applicable Third Party Services on Client’s behalf and obtain, access, store, and use the data made available to Evolv Health by the Third Party Services in accordance with the Agreement. Client and its Users are solely responsible for compliance with the terms and conditions applicable to any Third Party Services accessed by or on behalf of Client or Users in connection with the Evolv Health Software Platform and Client will indemnify Evolv Health from any and all harm, damages, costs, and expenses incurred by Evolv Health in connection with a breach of the foregoing. Evolv Health shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third Party Services and their providers. The provider of any such Third Party Service may cease to make the application available for interoperation with the corresponding feature of the Evolv Health Software Platform, and/or Evolv Health may otherwise cease providing such features at any time. Any acquisition or use of Third Party Services and any exchange of information between a Client or its Users and any third party is directly between the applicable Client and/or User and the applicable third party, and any interaction between Client and/or its Users with respect thereto is solely between Client and its Users, without obligations or liability on the part of Evolv Health. EVOLV HEALTH EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY THIRD PARTY SERVICES OR ANY CLIENT, USER OR PATIENT INTERACTIONS WITH ANY THIRD PARTY SERVICES.
3. PROPRIETARY RIGHTS.
3.1. Reservation of Rights in Evolv Health Software Platform. Evolv Health reserves all right, title and interest in and to the Evolv Health Software Platform, including all related software and intellectual property rights. No rights are granted to Client or Users other than as expressly set forth herein, whether by implication, estoppel, or otherwise. All enhancements, modifications, and derivative works made to the Evolv Health Software Platform (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by Evolv Health, whether or not such Derivatives are made at Client’s request or instruction, with the exception of any electronic data or information submitted, provided, or made available to Evolv Health by or on behalf of Client or its Users to the Evolv Health Software Platform (“Client Data”) contained in the Derivatives which shall continue to be owned by Client. Client hereby irrevocably assigns and shall cause its Users to assign to Evolv Health all right, title and interest in and to the Derivatives, including all intellectual property rights therein that may inure to Client or its Users or that Client or its Users are deemed to obtain pursuant to these Terms of Service or the Agreement.
3.2. Restrictions. Neither Client nor its Users shall: (i) modify or create derivate works based on the Evolv Health Software Platform, (ii) reverse engineer the Evolv Health Software Platform, or (iii) access the Evolv Health Software Platform in order to (a) build a similar or competitive product or service to the Evolv Health Software Platform or the Third Party Services, (b) carry out benchmarking of the Evolv Health Software Platform, including by monitoring their availability, performance or functionality, or (c) copy any features, functions or graphics of the Evolv Health Software Platform.
3.3. Confidentiality; Use of Non-Personally Identifiable Data. By virtue of the Agreement and the Services, the parties may have access to information that is confidential to one another (“Confidential Information”). Client and its Users acknowledge and agree that the Evolv Health Software Platform and its software, design, functionality and features constitute trade secrets within the Confidential Information owned by Evolv Health, in addition to other business, proprietary and/or otherwise non-public information pertaining to Evolv Health. Client, User and/or patient health/healthcare information and other non-public information that is stored on Evolv Health servers is considered to be Client Confidential Information. A party's Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act of omission of the other party; or (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is required to be disclosed by applicable laws or regulations or by an order of a court of competent jurisdiction or other legal process, provided that in the event of a compelled disclosure the party required to make such disclosure shall if reasonably practicable and permitted under applicable law, provide notice to the other party as early as practicable prior to such disclosure in order to enable the other party to contest and/or attempt to limit the extent of such disclosure. The parties agree, both during the term of the Agreement and for a period of two (2) years after termination of the Agreement, to hold each other's Confidential Information in confidence, except that with respect to information constituting “trade secrets” as defined under the Uniform Trade Secrets Act and except for “Protected Health Information” (as defined under HIPAA) or patient personal information, the obligations hereunder shall continue for as long as such information continues to constitute trade secrets, Protected Health Information or patient personal information. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than the use or provision of the Evolv Health Software Platform, as applicable, and the implementation of the Agreement. Each party agrees to take reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of the Agreement. Notwithstanding the foregoing, Client and its Users shall not, at any time whether while the Agreement is in effect or thereafter permit anyone other than Client’s Users to access or use the Evolv Health Software Platform.
3.4 Healthcare Law Compliance. The parties intend in entering into the Agreement to comply with all applicable federal and state laws and regulations, as well as all compliance guidance published by federal or state agencies, state licensing regulations, and rules and regulations of applicable healthcare accreditation organizations, including, without limitation, the Federal Anti-kickback Statute (42 U.S.C. § 1320a-7b), the federal Physician Self-Referral Statute (42 U.S.C. 1395nn) and the amendments, regulations and administrative rulings thereto (“Stark Law”); the Federal False Claims Act (31 U.S.C. 3729 et seq.) and amendments; the federal Civil Monetary Penalties Law (42 U.S.C. 1320a-7a); the federal Exclusion Authority Statute (42 U.S.C. 1320a-7); and any similar state and local laws (collectively, “Health Care Laws”). Each party represents and warrants to the other that neither it nor any person that has a direct or indirect ownership interest (as defined in 42 C.F.R. Section 1001.1001(a)(2)) in the party or who has an ownership or controlling interest (as defined in Section 1124(a)(3) of the Social Security Act or any regulations promulgated thereunder) in the party, or who is an officer, director, manager, agent or managing employee (as defined in 42 C.F.R. Section 1001.1001(a)(i)) of the party: (i) has been excluded, debarred, or otherwise ineligible to participate in the Federal health care programs as defined in 42 USC § 1320a-7b(f) (“FHCP”); (ii) has been convicted of a criminal offense related to the provision of health care items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in any FHCP; or (iii) is under investigation or otherwise aware of any circumstances which may result in either Party or their representatives being excluded from participation in any FHCP. This shall be an ongoing covenant during the term of the Agreement and either party shall notify the other party within five (5) business days of any change in the status set forth in this Section which shall give either party the right to terminate the Agreement immediately for cause.
3.5 Data Privacy and Security. The parties agree to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 USC § 1320d (“HIPAA”), and any current and future regulations promulgated thereunder, including, without limitation, the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security standards contained in 45 C.F.R. Part 142 (the “Federal Security Regulations”), the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, and all the amendments to HIPAA contained in Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HITECH”), all collectively referred to as “HIPAA Requirements.” Evolve Health agrees not to use or further disclose any Protected Health Information (as defined in 45 C.F.R. § 1320d), other than as permitted by HIPAA Requirements and the terms of the Agreement. Client and Evolv Health agree to enter into a customary HIPAA Business Associate Agreement upon entering into the Agreement in the form attached hereto as Attachment E or a reasonable alternate form provided by Client. Client will maintain appropriate security measures for all personnel, systems, and administrative processes used by Client and its Users to transmit and process electronic health information through the use of the Evolv Health Software Platform. Client hereby agrees that Evolv Health shall not be responsible or liable for any breach or security incident that exposes Protected Health Information to an unauthorized disclosure (a “Data Breach”), and that in the event of a Data Breach or a threatened Data Breach, Client’s obligations under the Agreement shall continue in full force and effect, including, without limitation, Client’s obligations to compensation and all other fees and expenses set forth in the Agreement.
3.6 Notwithstanding any other provision in the Agreement, Evolv Health shall own and have the right to gather, retrieve, compile, store, retain, use, sell, license, transfer or otherwise exploit all information that is not “Protected Health Information” as defined under 45 C.F.R. Section 164.501 or other “personally identifiable data” relating to use of the Evolv Health Software Platform for research, quality control, product development and refinement, commercial and other purposes as determined by Evolv Health without a duty to account to or obtain consent from Client or User or any third party. As used herein, “non-personally identifiable data” is any data element or collection of data elements that cannot be associated with a specific individual, whether by itself or in combination with other information. Evolv Health may use such information as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Evolv Health Software Platform; and (ii) in connection with the creation of any information or data derived from use of the Evolv Health Software Platform (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include Protected Health Information or personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, including as may be required to develop, deliver and provide ongoing innovation to the Evolv Health Software Platform.
3.7. Suggestions. Client and/or its Users may, but are not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by Client or Users (“Suggestions“). Client hereby grants and shall cause its Users to grant to Evolv Health a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate Suggestions into the Evolv Health Software Platform and its other Services, products, technologies, documentation or other development with no obligation to pay, attribute, license or to make available to, Client or Users or any other person or entity.
4. LIMITED WARRANTY; DISCLAIMER.
4.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into the Agreement and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. Client’s and User’s sole remedy for performance issues with respect to the Services, including, without limitation, the Evolv Health Software Platform shall be the provision of any support services Evolv Health is obligated to provide in accordance with the Agreement.
4.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOLV HEALTH, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, CONTRACTORS AND OTHER REPRESENTATIVES (THE “EVOLV HEALTH PARTIES”) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE EVOLV HEALTH PARTIES SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND EVOLV HEALTH SOFTWARE PLATFORM OR THE RESULTS RECEIVED THEREFROM, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION THAT THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE EVOLV HEALTH SOFTWARE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WITH RESPECT TO ANY CLIENT OR USER DATA OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE SERVICES OR THE EVOLV HEALTH SOFTWARE PLATFORM; AND HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO. THE EVOLV HEALTH PARTIES DO NOT WARRANT THAT THE SERVICES OR THE EVOLV HEALTH SOFTWARE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE EVOLV HEALTH SOFTWARE PLATFORM WILL BE COMPATIBLE WITH ANY OTHER SOFTWARE, HARDWARE, OR OTHER MATERIALS, OR THAT THE EVOLV HEALTH SOFTWARE PLATFORM OR THE SERVERS THAT MAKE THE EVOLV HEALTH SOFTWARE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND THE EVOLV HEALTH PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO. CLIENT AND USER UNDERSTAND AND AGREE THAT IF CLIENT OR USER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ANY THIRD PARTY SERVICES OR CONTENT OR DATA THEREIN, IT IS AT CLIENT’S AND/OR USER’S OWN DISCRETION AND RISK AND THAT CLIENT AND/OR USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S OR USER’S PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE EVOLV HEALTH SOFTWARE PLATFORM. EVOLV HEALTH HAS NO CONTROL OVER ANY THIRD PARTY SERVICES AND DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE COMMUNICATIONS FACILITIES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY, OR RELIABILITY OF THIRD PARTY SERVICES AVAILABLE IN CONNECTION WITH THE SERVICES. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN EVOLVE HEALTH AND THE THIRD-PARTY CONTENT PROVIDER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY CONTENT. EVOLV HEALTH PROVIDES ACCESS TO THIRD PARTY SERVICES TO CLIENT’S USERS ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL, OR FEATURES ON THE EVOLV HEALTH SERVICES TO THIRD PARTY SERVICES DOES NOT IMPLY EVOLV HEALTH’S AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD PARTY SERVICE OR ANY CONTENT OR DATA THEREIN. CLIENT AND ITS USERS ARE SOLELY RESPONSIBLE FOR, AND THE EVOLV HEALTH PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT TO, PATIENT SERVICES OR THE USE OF ANY HEALTH-RELATED DATA OR USER DATA, OR CLIENT’S OR ITS USERS’ COMPLIANCE WITH ANY REGULATORY OBLIGATIONS RELATED THERETO. CLIENT ACKNOWLEDGES AND AGREES THAT EVOLV HEALTH IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND IS NOT DETERMINING APPROPRIATE PATIENT CARE, PATIENT CARE PLANS, OR MEDICAL USE OF ANY DATA OR ANALYSES PROVIDED BY EVOLV HEALTH OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE EVOLV HEALTH SOFTWARE PLATFORM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EVOLV HEALTH SOFTWARE PLATFORM IS NOT, AND DOES NOT PROVIDE, AN ELECTRONIC MEDICAL RECORD AND SHALL NOT BE RELIED ON AS AN ELECTRONIC MEDICAL RECORD IN WHOLE OR IN PART UNDER ANY CIRCUMSTANCES.
5. INDEMNIFICATION.
Client shall indemnify, defend and hold the Evolv Health Parties harmless from and against any Claim(s) incurred or suffered by any of them with respect to any breach of any of Client’s or User’s representations, warranties or obligations hereunder or any act or omission by Client or any of its Users or other personnel that results in a Claim. The Evolv Health Parties shall have the right to engage their own counsel in connection with such matters and shall notify Client promptly in writing of any such claim or suit against any of the Evolv Health Parties.
6. LIMITATION OF LIABILITY.
6.1. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE EVOLV HEALTH PARTIES HAVE ANY LIABILITY TO CLIENT OR ANY USER OR TO ANY THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, OR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING AS A RESULT OF STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, RELATING TO THESE TERMS OF SERVICE OR THE AGREEMENT, THE SERVICES OR THE EVOLV HEALTH SOFTWARE PLATFORM, WHETHER OR NOT THE EVOLV HEALTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY EVOLV HEALTH PARTIES’ AGGREGATE TOTAL LIABILITY TO CLIENT OR ANY USER OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF THESE TERMS OF SERVICE OR THE AGREEMENT OR RELATING TO THE SERVICES OR THE EVOLV HEALTH SOFTWARE PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY EVOLV HEALTH WITH RESPECT TO CLIENT’S SUBSCRIPTION FOR THE SERVICES GIVING RISE TO THE APPLICABLE CLAIM DURING THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CLIENT’S OR USERS’ REMEDIES UNDER THESE TERMS OF SERVICE OR THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
7. TERM AND TERMINATION.
7.1. Term of Agreement. The Agreement commences on the Effective Date and continues until non-renewal or termination in accordance with the terms provided below or in the Subscription Terms of the Agreement.
7.2. Termination/Nonrenewal. The Agreement may be terminated by a party if the other party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within thirty (30) days after receipt of written notice from Evolv Health. Evolv Health may also suspend the provision of the Services, including, without limitation, Client’s and its User’s access to or use of the Evolv Health Software Platform in the event of nonpayment or other breach until such time as payment in full has been made or such other breach has been fully cured. A party may also terminate the Agreement upon providing written notice to the other party if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Evolv Health and/or the applicable Client may elect to not renew the Agreement by providing written notice of non-renewal to the other party not less than thirty (30) days prior to the end of the applicable subscription period. Client will be permitted to terminate the Subscription Services with respect to a Location if neither Client nor any of its affiliates any longer meet the below definition of a Managing Party for that Location, so long as Evolv Health is notified of such termination at least ninety (90) days prior to said termination of the Location in question; provided further that Strategic Consulting Services with respect to any Market can only be terminated for that Market (also only with 90 days prior written notice) if Client nor any of its affiliates any longer meet the below definition of a Managing Party for all Facilities in said Market. The term “Managing Party” means any one or more of the following: (1) a person or entity that has a direct or indirect ownership interest in the Location in question, (2) a person or entity that directly or indirectly controls either the Location in question or the direct or indirect owner of the Location in question, or (3) a person or entity that directly or indirectly either (a) manages the Location in question, (b) has an ownership interest in the manager of the Location in question, or (c) controls the manager of the Location in question. Notwithstanding the forgoing no service can be terminated unless client has continuously maintained compliance with all terms of this agree through the date of any such termination.
7.3 Effect of Termination/Nonrenewal. Upon the effective date of termination or expiration of the Agreement: (a) Client and its User shall cease all use of the Services and the Evolv Health Software Platform and Evolv Health may immediately cease providing same; (b) any and all payment obligations of Client under the Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements. Except in the event that the Agreement is terminated by Evolv Health based on a breach of the Agreement by Client or a User, if requested by Client, Evolv Health shall use reasonable efforts to assist such Client in transferring such Client’s data to Client or another service provider (such services to be subject to Evolv Health’s customary fees on a time and materials basis unless otherwise agreed to in writing by Evolv Health).
7.4. Surviving Provisions. The following provisions of these Terms of Service shall survive any termination or expiration of the Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1.3, 1.6, 1.7, 2-6, 7.3, 7.4, 8 and 9.
8. MODIFICATIONS TO THE TERMS OF SERVICE OR THE AGREEMENT.
Evolv Health reserves the right, at its discretion, to change these Terms of Service or other terms of the Agreement on a going-forward basis at any time by posting revised Terms of Service on its website or otherwise providing notice to Client and/or Users. Client and Users should check these Terms of Service online at the link referred to above periodically for changes. All changes are effective upon the earlier of Client’s or User’s use of the Evolv Health Software Platform after following publication of the modified Terms of Service. Disputes arising under the Terms of Service or the Agreement will be resolved in accordance with the terms in effect at the time that the dispute arose.
9. GENERAL PROVISIONS.
9.1. Relationship. The parties are independent contractors, and the Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. No party shall take any action or permit any action to be taken on its behalf which purports to be done on behalf of or in the name of another party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to anyone that it has such power or authority.
9.2. Notices. All notices under these Terms of Service or the Agreement shall be in writing and shall be delivered, for notices to Client or User, to the address set forth in Client’s or User’s registration information as provided for use of the Evolv Health Software Platform, and for notices to Evolv Health, to Evolv Health LLC, 700 S. Rosemary Avenue, Suite 204-A14, West Palm Beach, FL 33401, provided that Evolv Health may provide notices to Client and/or User via the email address provided at the time of registration.
9.3. Waiver and Severability. No failure or delay by a party in exercising any right under these Terms of Service or the Agreement shall constitute a waiver of that right. If any provision of these Terms of Service or the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to affect the original intent to the fullest extent possible, if at all, and the remaining provisions of these Terms of Service and the Agreement shall remain in full force and effect.
9.4. Assignment. Client and its Users may not assign any of their rights or obligations hereunder or the Agreement without the prior express written consent of Evolv Health. Evolv Health may assign the Agreement together with all rights and obligations hereunder, without restriction, including to an affiliate or to a successor entity resulting from a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to the Agreement. Any attempt by a party to assign its rights or obligations hereunder or under the Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.5. Governing Law. These Terms of Service and the Agreement shall be governed by and construed in accordance with the laws of the laws of the State of Florida without application of conflicts of laws rules or principles. Any dispute relating to the terms, interpretation or performance of these Terms of Service or the Agreement (other than claims for injunctive relief or other equitable remedies) will be submitted at the request of either party to binding arbitration. Arbitration will be conducted in West Palm Beach, Florida, under the rules and procedures of JAMS. The parties will request that JAMS appoint a single arbitrator. Any claims for injunctive or other equitable relief shall be brought and heard in the state or federal courts located in West Palm Beach, Florida, and Client consents to such venue and personal jurisdiction therein for any such proceedings. CLIENT AND USERS HEREBY IRREVOCABLY WAIVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM THAT THEY MAY HAVE AGAINST EVOLV HEALTH INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. In the event any provision of these Terms of Service or the Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of these Terms of Service or the Agreement will remain in full force and effect. The waiver of any breach or default of these Terms of Service or the Agreement will not be valid unless given in writing signed by the party giving the waiver and shall not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. As used herein, “affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists. A printed version of these Terms of Service and/or the Agreement and of any notice given in electronic form shall be admissible in any legal proceedings based upon or relating to these Terms of Service or the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. In the event of any conflict or inconsistency between these Terms of Service and other terms contained in the Agreement, the terms contained elsewhere in the Agreement shall control.
9.6. Export Control. Client and its Users shall comply fully with all relevant regulations of the United States Department of Commerce and with the United States Export Administration Act to assure that the Evolv Health Software Platform or any software provided by Evolv Health in connection therewith is not exported in violation of United States law.
9.7 Marketing References. Client acknowledges and agrees that Evolv Health may use Client’s name and logo in Evolv Health’s advertising marketing and promotional materials, including, but not limited to, in connection with sales presentations and on Evolv Health’s website.
9.8 Force Majeure. Except for Client’s payment obligations hereunder, no party will be liable for any failure or delay in its performance under these Terms of Service or the Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, storms or other weather or natural events, embargo, riot, sabotage, terrorism, epidemic, pandemic, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
9.9. Integration. These Terms of Service and the Agreement as may be modified from time to time as set forth herein, as well as other documents or additional terms referenced herein and/or in the Agreement constitute the entire agreement between Evolv Health and Client and between Evolv Health and User, respectively, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms of Service and the Agreement.
9.10. Change in Law. If at any time while the Agreement is in effect, a governmental law or regulation is adopted or promulgated that prohibits, limits or in any way materially affects either party’s rights or obligations hereunder, either party may give the other party notice of its intent to amend the Agreement in a fashion that is equitable to each party considering such restriction, prohibition, limitation or change, and the parties shall negotiate in good faith to accomplish such amendment. If, after thirty (30) days, agreement on the amendment is not reached, either party shall have the right to immediately terminate the Agreement upon written notice to the other party.
9.11. Definitions. Any capitalized term used but not defined in these Terms of Service shall have the applicable meaning set forth in the Subscription Terms.