Updated on August 25, 2023
THESE PROVIDER TERMS AND CONDITIONS (TOGETHER WITH THE EXHIBITS HERETO AND NIRVANA HEALTH (AS DEFINED BELOW) DOCUMENTS REFERENCED HEREIN, THESE “STANDARD TERMS”) ARE FOR MENTAL HEALTH SOLUTIONS, INC., A DELAWARE CORPORATION, D/B/A NIRVANA HEALTH (“NIRVANA HEALTH”) AND APPLY TO THE PROVISION OF ACCESS TO THE PLATFORM (AS DEFINED BELOW) AND RELATED SERVICES PURSUANT TO THE SERVICE ORDER FORM OR OTHER DOCUMENTATION INTO WHICH THESE STANDARD TERMS ARE INCORPORATED BY REFERENCE(THE “ORDER FORM”) SIGNED OR OTHERWISE AGREED TO BY NIRVANA HEALTH AND PROVIDER (AS DEFINED IN THE ORDER FORM). EACH OF NIRVANA HEALTH AND PROVIDER MAY BE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY ASTHE “PARTIES.” ADDITIONAL DEFINITIONS ARE SET FORTH IN SECTION 11(ADDITIONAL DEFINITIONS). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN WILL HAVE THE MEANINGS SET FORTH IN THE ORDER FORM.
1. SCOPE; GRANT OF RIGHTS; RESTRICTIONS
1.1 Scope.
(a) Agreement. From time to time, Provider may request from Nirvana Health the provision of the Platform and/or related Services (each as defined below). After the Parties agree on the terms and conditions relating to the provision of such Platform and/or Services, they will enter into an Order Form. Each Order Form will expressly reference these Standard Terms and will contain, at a minimum, the modules of the Platform and/or Services ordered, additional responsibilities of the Parties with respect thereto (if any), applicable fees, and the Initial Term (as defined below) of the Agreement (as defined below). These Standard Terms are hereby incorporated by reference into each Order Form that references these Standard Terms to create a separate agreement between the Parties (the Order Form and these Standard Terms, the “Agreement”).
(b) Management Services Organization. If Provider is a management services organization, (i) Provider will indicate the same on the Order Form and (ii) the Agreement between the Parties relates solely to the mental health services practice (hereinafter the “Practice”) managed by Provider and identified on the Order Form.
1.2 Nirvana Health Platform. Subject to the terms and conditions of this Agreement:
(a) Access Grant. Nirvana Health will make available to Provider via the Internet Nirvana Health’s software-as-a-service platform, whereby Nirvana Health analyzes certain data provided by Provider and provides Provider with practice administration services and related reports and notifications based on Nirvana Health’s analysis of such data (the “Platform”). Nirvana Health hereby grants Provider a non-exclusive, non-transferable, non-sublicensable right to access and use the Platform solely (i) with respect to the module(s) purchased by Provider on the Order Form and (ii) for Provider’s internal business purposes, through any interface made available to Provider by Nirvana Health.
(b) Authorized Users. The Platform may be accessed or used only by the employees or contractors of Provider who are authorized to access the Platform using a user identifier and password provided to Provider by Nirvana Health or setup by Provider using functionality provided by Nirvana Health (“Authorized Users”). Provider will not make the Platform available to any person or entity other than Authorized Users. Provider will be responsible for Authorized Users’ compliance with this Agreement and for maintaining the confidentiality of all secure login information, passwords and other information related to its and its Authorized Users’ respective accounts at all times.
(c) Clients. If Provider selects on an Order Form any Platform modules that have Client-facing functionality, subject to the terms and conditions of this Agreement, Nirvana Health will make available to Clients such Platform functionality. Prior to any Client being permitted to access or use the Platform, Nirvana Health will require such Client to agree to Nirvana Health’s standard terms of service, privacy policy, or other clickthrough agreement(s) respecting the Platform as Nirvana Health makes available from time to time (“Standard Client Terms”).
1.3 Restrictions. Provider will not, directly or indirectly, permit Authorized Users, Provider’s employees and contractors, or any other third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party; (b) copy, modify, duplicate, reproduce, translate, or otherwise create derivative works based on the Platform; (c) interfere with or disrupt the integrity or performance of the Platform; (d) reverse engineer, decompile, disassemble, re-program, or analyze the Platform (in whole or in part) or otherwise attempt to reconstruct, identify or discover the source code, object code, underlying structure, ideas, or algorithms of the Platform; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (f) remove or obscure any proprietary notices or labels of Nirvana Health on the Platform or the Nirvana Health Content (as defined below); (g) use the Platform or any information contained therein or otherwise provided by Nirvana Health or its licensors for the purposes of developing, or having developed, any products or services competitive with the Platform; or (h) otherwise access or use the Platform in a manner inconsistent with this Agreement or applicable Law.
2. OWNERSHIP; RESERVATION OF RIGHTS; PROVIDER DATA
2.1 Reservation of Rights. Subject only to the rights expressly granted to Provider under this Agreement, as between Nirvana Health and Provider all rights, title and interest in and to the Platform and all reports, information, content and materials shared with Provider in connection therewith (“Nirvana Health Content”) will remain with and belong exclusively to Nirvana Health. Provider is permitted to make a reasonable number of copies of the Nirvana Health Content in the form provided by Nirvana Health, and Provider will use the Nirvana Health Content (including any such copies) solely for Provider’s internal business purposes.
2.2 Feedback. Provider (including its Authorized Users) may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback to Nirvana Health with respect to the Platform or Nirvana Health Content (“Feedback”). Nirvana Health will have full discretion to determine whether to proceed with the development of the requested enhancements, new features or functionality. Provider hereby grants Nirvana Health a royalty-free, fully paid-up, worldwide, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to (a) copy, distribute, transmit, display, perform, and modify and create derivative works of the Feedback, in whole or in part; and (b) use the Feedback and/or any subject matter thereof, in whole or in part, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which incorporate, practice or embody, or are configured for use in practicing, the Feedback, in whole or in part.
2.3 Provider Data.
(a) Data will be collected from Provider or by Nirvana Health on Provider’s behalf and/or otherwise provided or made available by Provider and its Authorized Users to Nirvana Health, including through the Platform, to enable the provision of the Platform to, and operation of the Platform by, Provider or otherwise to perform the Services (as defined below) (collectively, “Provider Data”). As between the Parties, Provider will retain all right, title and interest in and to the Provider Data.
(b) Provider hereby grants to Nirvana Health a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Nirvana Health’s contractors and service providers), right and license to copy, distribute, display, modify, create derivative works of and otherwise use the Provider Data solely to perform Nirvana Health’s obligations under this Agreement, except as provided in Section 2.3(c).
(c) Provider also hereby grants to Nirvana Health a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Nirvana Health’s contractors and service providers) and irrevocable license to copy, modify, process, deidentify,,and aggregate Provider Data with data from other sources (data aggregation services) to create derivative works to be used by Nirvana Health for purposes of: (i) providing services to Provider and other covered entities related to their healthcare operations; and/or (ii) for Nirvana Health’s own management and administration, including deriving anonymous statistical and usage dat, and data related to the functionality of Nirvana Health’s products and services, all provided such data does not identify and cannot be used to reidentify Provider, Authorized Users, Clients, or any data subject (“Aggregated Data”). For purposes of clarity, Aggregated Data does not constitute Provider Data, and deidentified data does not constitute PHI within the meaning of HIPAA. Nirvana Health may use Aggregated Data and deidentified data for the purposes set forth herein and for any other legally permissible purposes.
2.4 Protected Health Information. The Parties acknowledge that the Provider Data may include PHI. Nirvana Health and Provider agree to comply with the terms and conditions of any Business Associate Agreement(s) or Subcontractor Business Associate Agreement(s) (the “BAA”) entered into between the parties, if/as applicable, regarding the use and disclosure of PHI. In the event of a conflict between these Standard Terms and the BAA, the BAA will govern with respect to the subject matter thereof.
3. RESPONSIBILITIES
3.1 Provider Responsibilities.
(a) Platform. Provider will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and notify Nirvana Health promptly of any such unauthorized access or use; (ii) use the Platform only in accordance with the documentation, applicable Laws, and the terms of this Agreement; and (iii) notify Clients eligible to benefit from the Platform and/or Services of the availability of the same.
(A)
(b) Material Change. If Provider implements a material change to its practice or (if Provider is a management services organization) the Practice, as applicable, that would affect the ability of Nirvana Health to perform its obligations hereunder, Provider will provide Nirvana Health advance written notice no less than thirty (30) days prior to implementation of such change as to allow reasonable time for Nirvana Health to implement necessary changes to ensure smooth delivery of the Platform and Services.
(c) Delays. Nirvana Health is not responsible for any delays to Nirvana Health’s performance of its obligations under this Agreement due to Provider’s failure to timely comply with its obligations in this Section 3.1.
(d) Fees and Pricing for Professional and Clinical Services. Provider represents, warrants, and covenants that Provider is solely and entirely responsible for determining and setting all fees and prices for professional and clinical services provided to patients (hereinafter “Professional Services Fees”) by Provider and its employed, affiliated, and associated providers and clinicians, and for ensuring that all such Professional Services Fees charged by Provider to patients or third-party payors, if/as applicable, are legal and appropriate. Provider understands and acknowledges that: (1) Nirvana Health is being engaged pursuant to this Agreement solely as a technology provider, services vendor, and processing intermediary, is neither involved in nor responsible for any determinations regarding Provider’s Professional Services Fees; and (2) Provider shall indemnify, defend, and hold harmless Nirvana Health from any and all costs, claims, losses, and/or damages resulting from issues regarding Professional Services Fees, including but not limited to costs, claims, losses, and/or damages resulting from inquiries and/or disputes raised by third-party payors and/or government agencies.
(e)
3.2 Nirvana Health Responsibilities.
(a) Platform. Nirvana Health will use commercially reasonable efforts to provide Provider with access to the Platform for the amount of Uptime set forth in the applicable Order Form between Nirvana Health and Provider, the terms and conditions of which are incorporated by reference into this Agreement. Nirvana Health will use commercially reasonable efforts to provide the Platform in a manner that minimizes errors, and interruptions in accessing the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nirvana Health or by third-party providers, or because of other causes beyond Nirvana Health’s reasonable control, but Nirvana Health will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. Nirvana Health will provide second tier technical support to Authorized Users for issues and questions arising from the operation of the Platform to the extent such issue or question requires escalation. Nirvana Health will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Provider Data that this Agreement does not expressly authorize.
(b) Concierge Services. The obligations of Nirvana Health set forth in this Section 3.2(b) are the “Concierge Services”.
(i) Plan Verification: Nirvana Health will reasonably support Provider in verifying existing or new Clients’ Health Benefit Plan(s);
(c) Relationship Management. Nirvana Health will appoint a dedicated relationship manager for Provider. Such relationship manager will meet (which meeting may be remote) with Provider semi-annually to update Provider on the impact of Provider’s use of the Platform and Services hereunder.
3.3 Services. From time to time, Nirvana Health may agree to provide additional implementation, integration, consulting and other services (such services, together with the Concierge Services, the “Services”) described in a statement of work that is executed by both Parties and expressly references this Agreement (each, a “Statement of Work”). All Services will be provided in accordance with the provisions of this Agreement and the applicable Statement of Work. In providing the Services, Nirvana Health will utilize only qualified, appropriately trained, and, if/as applicable, certified or licensed personnel and will be solely responsible for assuring that such personnel are appropriately qualified and trained to provide Services under this Agreement. Each Statement of Work will contain a description of the tasks to be performed, a schedule of payments and payment terms (if applicable) and any additional terms and conditions as the Parties may wish to include. Provider will use reasonable efforts to provide Nirvana Health with the necessary items and assistance necessary for Nirvana Health to complete the Services. Any dates or times relevant to performance by Nirvana Health hereunder will be appropriately and equitably extended to account for any delays or change in assumptions due to Provider. In the event of a conflict between any term or condition of this Agreement and any Statement of Work, the applicable term or condition of this Agreement will govern unless and solely to the extent that the Parties expressly state in such Statement of Work that they intend to override the terms and conditions of this Agreement. Upon execution of any Statement of Work, the terms and conditions of such Statement of Work are hereby incorporated into and become part of this Agreement.
4. FEES
4.1 Platform Subscription and Services Fees. Provider will pay to Nirvana Health the fees as set forth on an Order Form or Statement of Work, as applicable, in accordance with the payment schedules set forth therein.
4.2 Payment Terms. All fees paid are non-refundable. If payment of any fees (including any reimbursement of expenses) is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by Law, and Provider will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Nirvana Health within thirty (30) days from the time such payment is due, Nirvana Health may suspend access to the Platform until such payment is made. Nirvana may increase the pricing for any Renewal Term.
4.3 Net of Taxes. All amounts payable by Provider to Nirvana Health hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Provider will be solely responsible for payment of any Taxes, except for those taxes based on the income of Nirvana Health. Provider will not withhold any Taxes from any amounts due to Nirvana Health.
(a)
5. TERM, TERMINATION
5.1 Term. Unless earlier terminated in accordance with the terms of this Agreement, this Agreement will commence on the Effective Date and the Initial Term of this Agreement will be as set forth on the Order Form. Thereafter, unless this Agreement terminates earlier in accordance with the terms of this Agreement, this Agreement may renew upon mutual written agreement for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
5.2 Termination. Either Party may terminate this Agreement, for cause, (a) in the event of a breach of this Agreement by the other Party that is not cured within thirty (30) days (or ten (10) days in the event of non-payment by Provider) after the breaching Party receives notice of such breach; or (b) upon the commencement of any bankruptcy proceeding (or other insolvency proceeding) of the other Party or the dissolution of the other Party. In addition, Nirvana Health may terminate this Agreement immediately in the case of a breach by Provider of Section 1.3. Neither Party will incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such Party (or expiration) that complies with the terms of the Agreement whether or not such Party is aware of any such damage, loss, or expenses.
5.3 Effect of Expiration or Termination. Except as expressly stated herein, upon expiration or termination of the Agreement, (a) all rights granted hereunder and all obligations of Nirvana Health to provide the Platform or the Services will immediately terminate; (b) Provider will immediately cease access and use of the Platform; and (c) each Party will return or destroy all copies or other embodiments of the other Party’s Confidential Information, subject to Nirvana Health’s rights in Section 2.3(c). Upon Provider’s written request within thirty (30) days after such expiration or termination, Nirvana Health will make available to Provider an export of Provider Data in Nirvana Health’s systems in a format reasonably requested by Provider, subject to Nirvana Health’s rights in Section 2.3(c). After the expiration of such thirty (30) day period, Nirvana Health may at its discretion purge Provider Data from its systems[sl1] . Nirvana Health will continue to provide Concierge Services with respect to Clients that received Mental Health Services prior to the date of expiration or termination of the Agreement. Upon Provider’s written request within thirty (30) days after such expiration or termination and upon mutual agreement of the Parties, Nirvana Health will also provide support to Provider for the mutually agreed post-expiration or -termination period in exchange for mutually agreed fees.
5.4 Survival. Sections 1.3 (Restrictions), 2.1 (Reservation of Rights), 2.2 (Feedback), 2.3(c), 4 (Fees), 5.3 (Effect of Expiration or Termination), 6 (Confidential Information), 7.4 (Exclusions), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General) and the BAA (to the extent set forth therein) will survive the termination or expiration of this Agreement.
6. CONFIDENTIAL INFORMATION
6.1 Definition. The Parties anticipate that they will exchange Confidential Information (as defined below) during the Term. “Confidential Information” means any and all tangible and intangible information, either written, oral, or in any other medium, disclosed or made available by a Party (“Disclosing Party”) to the other Party (the “Receiving Party”), including research and development, patents or trade secrets, financial information, know-how, designs, samples, processes, methodologies, manuals, vendor names, supplier lists, customer lists and other information related to clients, employee lists, databases, sales and marketing information, and computer programs, or any other confidential information or proprietary aspects of the business of the Disclosing Party. The Platform and Nirvana Health Content are Nirvana Health’s Confidential Information. The Provider Data is Provider’s Confidential Information. Information will not be considered to be Confidential Information to the extent that the Receiving Party can prove by reliable written record that such information: (a) is already known to the Receiving Party free of any restriction at the time it is obtained by the Receiving Party; (b) is subsequently learned from an independent third party free of any restriction or obligation of confidentiality and without breach of this Agreement; (c) becomes publicly available through no wrongful act of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
6.2 Obligations. The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information. The Receiving Party will protect all Confidential Information received from the Disclosing Party with the same degree of care used by the Receiving Party to protect its own confidential information of like importance from unauthorized use or disclosure, but in no event less than a reasonable degree of care. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights and perform its obligations under this Agreement. Notwithstanding any provision of this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information, in whole or in part to the Receiving Party’s employees, officers, directors, consultants, contractors and/or professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound by written agreements (or, in the case of professional advisors, are bound by ethical duties) imposing confidentiality and nonuse obligations with respect to such Confidential Information no less restrictive than those set forth in this Section 6. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required to be disclosed by Law, court order, or subpoena, provided that the Receiving Party will exercise reasonable efforts to notify the Disclosing Party in writing prior to disclosure and will limit such disclosure to the extent legally permissible. The Receiving Party acknowledges that (a) the provisions contained in this section are reasonable and necessary to protect the legitimate business interests of the Disclosing Party; and (b) its breach of this Section 6 will cause irreparable damage to the Disclosing Party and agrees that the Disclosing Party will be entitled to seek injunctive relief from a court of competent jurisdiction as a result of any breach as well as such further or other equitable relief as may be granted by such court, without the posting of any bond or other security and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Any right, power, or remedy provided under this Agreement to the Disclosing Party will be cumulative and in addition to any other right, power, or remedy provided under this Agreement or existing in Law or in equity (including the remedies of injunctive relief and specific performance).
7. WARRANTIES AND EXCLUSIONS
7.1 Mutual. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when the Order Form is signed by both Parties.
7.2 By Nirvana Health. Nirvana Health represents, warrants, and covenants to Provider that the Platform will substantially conform with the specifications for the Platform provided by Nirvana Health to Provider. In the event of a breach of the foregoing, Nirvana Health’s sole obligation, and Provider’s sole remedy, will be for Nirvana Health to use commercially reasonable efforts to correct the Platform.
7.3 By Provider. Provider represents, warrants, and covenants to Nirvana Health that Provider has and will have the legal authority and all rights necessary (a) to provide the Provider Data to Nirvana Health and to comply with the BAA; and (b) for Nirvana Health to fulfill its obligations and exercise its rights with respect to the Provider Data as set forth in this Agreement. .
7.4 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, NIRVANA HEALTH CONTENT, AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND NIRVANA HEALTH DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER ACKNOWLEDGES THAT NIRVANA HEALTH DOES NOT WARRANT THAT THE PLATFORM WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES OR THAT THE PLATFORM, NIRVANA HEALTH CONTENT, OR SERVICES WILL MEET PROVIDER’S REQUIREMENTS. NIRVANA HEALTH DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR NIRVANA HEALTH CONTENT. PROVIDER ACKNOWLEDGES THAT THE NIRVANA HEALTH CONTENT REFLECTS NIRVANA HEALTH’S SUBJECTIVE ANALYSIS, CONCLUSIONS, AND ASSESSMENTS, AND PROVIDER AGREES THAT NIRVANA HEALTH WILL HAVE NO LIABILITY TO PROVIDER WITH RESPECT TO THE NIRVANA HEALTH CONTENT, INCLUDING ANY STATEMENTS, INFORMATION, OR OTHER CONTENT CONTAINED IN THE NIRVANA HEALTH CONTENT. FURTHER, PROVIDER ACKNOWLEDGES THAT IT REMAINS RESPONSIBLE AT ALL TIMES FOR ITS (INCLUDING ITS HEALTH PROFESSIONALS’) ACTIVITIES (INCLUDING THE PROVISION OF MENTAL HEALTH SERVICES), AND PROVIDER AGREES THAT NIRVANA HEALTH WILL HAVE NO LIABILITY FOR (A) ANY ACTIONS OR INACTIONS OF PROVIDER (INCLUDING ITS HEALTH PROFESSIONALS) RESPONSE TO OR AS A CONSEQUENCE OF ANY NIRVANA HEALTH CONTENT OR ABSENCE OF NIRVANA HEALTH CONTENT OR (B) ANY MEDICAL SERVICES (INCLUDING MENTAL HEALTH SERVICES), CLAIMS, INSURANCE PAYMENTS, OR OTHER BILLING MATTERS.
8. INDEMNIFICATION
8.1 By Nirvana Health. Nirvana Health will indemnify, hold harmless and defend at its expense any claim, suit or proceeding (each a “Dispute”) brought against Provider by a third party based upon a claim that Provider’s use of the Platform as contemplated by this Agreement infringes such third party’s copyrights or misappropriates such third party’s trade secrets, and Nirvana Health will pay all reasonable costs and damages finally awarded against Provider by a court of competent jurisdiction as a result of any such Dispute or amounts payable pursuant to a settlement agreed to by Nirvana Health; provided, however, that Provider (a) promptly notifies Nirvana Health in writing of such Dispute; (b) promptly gives Nirvana Health the right to control and direct the investigation, preparation, defense, and settlement of such Dispute, with counsel of Nirvana Health’s own choosing (provided that Provider will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Dispute); and (c) gives assistance and full cooperation for the defense of same. Nirvana Health will not settle or compromise any Dispute against Provider without Provider’s written consent, which may not be unreasonably withheld, conditioned, or delayed. If the use of the Platform by Provider has become, or in Nirvana Health’s opinion is likely to become, the subject of any claim of infringement or misappropriation, Nirvana Health may, at its option, (i) procure for Provider the right to continue using the Platform as set forth hereunder; (ii) replace or modify the Platform to make it non-infringing; or (iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement. Notwithstanding the foregoing, Nirvana Health will have no liability or obligation under this Section 8.1 (A) based on any use of the Platform outside the scope of this Agreement; (B) modification of the Platform in accordance with Provider’s specifications or instructions by any person or entity other than Nirvana Health without Nirvana Health’s express consent; or (C) the combination, operation or use of the Platform with other applications, portions of applications, product(s), data or services not provided by Nirvana Health; or (D) use of the Platform by Provider after Provider has been notified by Nirvana of claims of the potential infringement or misappropriation and that it must accordingly cease use of the Platform pending resolution of same. This Section 8.1 states Nirvana Health’s entire obligation and Provider’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 By Provider.
(a) Provider will indemnify, hold harmless and defend at its expense any Dispute brought against Nirvana Health by any third party arising out of (a) a claim that the Provider Data infringes on third party rights; (b) Provider’s access to and/or use of information and/or content supplied by third-parties in connection with Nirvana’s Cardless Eligibility modules/services (if applicable); (c) any medical services (including Mental Health Services) provided by Provider or (if Provider is a management services organization) the Practice (including by any Health Professional); or (d) any Client or Payer (including with respect to any Claims, Insurance Payments, or other billing matters) and Provider will pay all costs and damages finally awarded against Nirvana Health by a court of competent jurisdiction as a result of any such Dispute or amounts payable pursuant to a settlement agreed to by Provider; provided, however, that Nirvana Health (i) promptly notifies Provider in writing of such Dispute; (ii) promptly gives Provider the right to control and direct the investigation, preparation, defense and settlement of such Dispute, with counsel of Provider’s own choosing (provided that Nirvana Health will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Dispute); and (iii) gives assistance and full cooperation for the defense of same. Provider will not settle or compromise any Dispute against Nirvana Health without Nirvana Health’s written consent, which may not be unreasonably withheld, conditioned or delayed.
9. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM (A) PROVIDER’S BREACH OF SECTION 1.3 (RESTRICTIONS), (B) A PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, AND (D) EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (I) PROVIDER’S BREACH OF SECTION 1.3 (RESTRICTIONS), (II) A PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) (III) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, AND (IV) EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PAID OR PAYABLE BY PROVIDER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
10. GENERAL
10.1 Force Majeure. Nirvana Health will not be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, epidemic, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any Law, judgment, or decree.
10.2 Compliance with Laws; Export Control. Each Party will comply with all applicable Laws in performance of its obligations hereunder. In addition, Provider will comply with all applicable Laws in connection with the provision of Mental Health Services and other professional activities in which it engages. Provider will not transfer, either directly or indirectly, the Platform, either in whole or in part, to any destination subject to export restrictions under United States Law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export Laws.
10.3 Publicity. Neither Party will, without prior written consent of the other Party, issue or have issued a press release or other public statements or announcements regarding their business relationship or entry into this Agreement
10.4 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party; provided however that a Party may assign this Agreement without the prior written consent of the other Party to an acquirer of or successor to all or substantially all of such Party’s business or assets to which the applicable agreement relates. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 10.4 will be null and void.
10.5 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.6 Relationship. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.7 Headings; Interpretation. The headings and captions used in these Standard Terms are used for convenience only and are not to be considered in construing or interpreting this Agreement.
10.8 Severability. If any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
10.9 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York (the “New York Courts”) for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the New York Courts and agrees not to plead or claim in any New York Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the New York Courts.
10.10 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (a) delivered personally; (b) sent by confirmed telecopy or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Order Form, or such other addresses designated pursuant to this Section 10.10.
10.11 Entire Agreement. This Agreement (including the Order Form and any Statement(s) of Work) constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.
11. ADDITIONAL DEFINITIONS
11.1 “Client” means the individual who receives Mental Health Services.
11.2 “Downtime” means is any interruption in Provider’s access to the Platform of five (5) consecutive minutes or more, excluding interruptions due to: (1) access issues resulting from or caused by the acts or omissions of Provider or its agents or employees; (2) Platform maintenance for which Nirvana has provided Provider at least twenty-four (24) hours advance notice; (3) planned releases for which Nirvana has provided Provider at least seven (7) days’ advance notice; (4) other software updates and patches for which Nirvana has provided Provider commercially reasonable advance notice given the circumstances; (5) downtime resulting from or related to payor systems and services that support Platform connectivity; (6); and force majeure events, including but not limited to internet blackouts, slowdowns or failures related to or caused by third-party internet, service, and/or cloud services providers, disasters, and disaster recovery efforts.
11.3 “Health Benefit Plan” means the medical benefit coverage that the Client is eligible for with respect to Mental Health Services.
11.4 “Health Professional” means a psychologist, counselor, clinical therapist, licensed social worker, psychiatrist, mental health nurse practitioner, psychiatric nurse practitioner, or other clinician licensed, certified, or registered under the laws of any state in the United States that is either employed or engaged by Provider or (if Provider is a management services organization) the Practice, as applicable.
11.5 “Law” means any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order or other similar requirement
(including any state or federal directive or other requirement that relates to this Agreement) enacted, adopted, promulgated or applied by a government agency that is binding on a Party—including the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the regulations codified at 45 C.F.R. Parts 160 and 164; the Health Information Technology for Economic and Clinical Health Act, including all applicable regulations and guidance issued by the Secretary of the Department of Health and Human Services—all as amended from time to time.
11.6 “Mental Health Services” means services provided to the Client by Provider or (if Provider is a management services organization) the Practice (including by any Health Professional) to treat mental health illnesses or issues.
