Master Service Agreement
THIS MASTER SERVICES AGREEMENT (this “Master Agreement”) is entered into by and between you (“you” or “Customer”) and Healthy Roster, Inc. located at 20 North St., Dublin, Ohio 43017 LLC (“Healthy Roster”), as of the Effective Date listed on any applicable Order Form (the “Effective Date”). The parties agree as follows:
1.1 Your purchase of a subscription grants you access to the Healthy Roster Services for the duration and from the start date listed on any applicable Order Form (“Term”). Only licensed users in good standing may access the Services. The terms of your access to the Services, including without limitation, user limitations, usage or storage limitations, access to premium features such as efaxing and other restrictions will be provided on the Order Form. If you choose to downgrade your account, we are not liable for the resulting loss of content, features, or capacity.
1.2 The Services are always evolving and the form, nature and features of the Services may change from time to time without prior notice to you. If Healthy Roster makes any changes to the Services that, in its sole discretion are material, it will give you the opportunity to cancel your Subscription without penalty. If Healthy Roster is required to stop providing the Services for any reason, Healthy Roster will make reasonable effort to notify you prior to the service interruption. If the interruption is for, in Healthy Roster’s sole discretion, an extended period of time, you may be refunded a prorated portion of your unused subscription fees.
Software Access Terms.
2.1 Customer shall limit administrative-level access to the Services to the authorized users included in the applicable Order Form. Customer shall not allow any unauthorized user to access the Services. Account time sharing is strictly prohibited.
2.2 Customer may not copy any content provided on the Services for anyone that is not an authorized user.
3.1 Customer expressly represents that Customer Users are over 18 years of age, qualified to use the Services and that their use of the Services is in conformance with applicable law, licensing requirements and professional standards of care. Customer will be held directly liable for any loss or damages that occur as a result of a Customer User using the Services beyond the scope of their licensed expertise or credentials or in violation of this Agreement.
3.2 Customer acknowledges that Healthy Roster provides a platform for you and your users to connect with the users under your care and that Healthy Roster does not offer any medical advice or treatment recommendations. You are fully responsible for establishing appropriate medical or treatment protocols and for providing care in conformance with those protocols. You acknowledge that any features, options, standards or resources that Healthy Roster makes available to characterize, customize, sort, respond to or otherwise interact with users or the Services are provided for your convenience and are not a recommendation by Healthy Roster regarding an appropriate course of action or treatment plan.
3.3 Customer Users that access the Healthy Roster mental health platform are granted access to questionnaires. Whether prepared for the Customer or customized by the Customer, Healthy Roster is in no way endorsing the questionnaire’s accuracy, fitness or appropriateness for any given use. If you access or use the mental health platform or the related questionnaires, you are expressly representing that: (i) you and your users are qualified and fully licensed to administer and interpret the questionnaires; (ii) you have established and will follow an appropriate standard of care and protocol to administer, interpret and respond to the results of the questionnaires; (iii) you acknowledge that any features or default settings of the mental health platform that allow you to sort or set response protocols within the Services are provided for your convenience only and are in no way a recommendation by Healthy Roster regarding an appropriate response, interpretation or classification of the questionnaires (iv) if your users are under 18 years of age, you have informed their parents of your intention to use the questionnaires and your protocol regarding administration of the questionnaires and response to the questionnaire results; (v) you will follow your protocol in responding to questionnaires; and (vi) you acknowledge that your failure to follow to follow the requirements of this Section could result in serious harm or death to the users under your care.
3.4 Customer expressly represents that Customer Users are fully aware of their obligations under HIPPA, HITECH or other applicable law regarding the collection, use or disclosure of medical information. Customer may only use the Services in accordance with applicable laws.
Term and Termination
4.1 At the end of each Term, your Subscription will automatically renew at the same subscription level and for the same duration unless you notify Healthy Roster in writing with your intent to cancel your subscription at least thirty days prior to expiration of the previous Term.
4.2 If you fail to maintain your Subscription in good standing your access to the Services will immediately terminate following expiration of the Term or your failure to pay any outstanding amounts.
4.3 After receiving your cancellation notice, and at the end of your contract term your account will be closed and your users and patients will no longer have access to the data or services. You may request the data be provided in csv format for up to 30 days after the end of your then current contract term. After 30 days that data will be destroyed and will be unrecoverable. Alternatively, you may request that we retain your data with a nominal storage fee, to be paid annually.
4.4 Upon termination or expiration of the Agreement, the provisions of this Master Services Agreement shall terminate except those Sections you would expect to survive termination.
Pricing, Payment Terms and Refunds.
5.1 All payments will be collected in full prior to the start of any Term. If you downgrade your access in the middle of a Term, the decreased charges will go into effect for the following Term. If you upgrade in the middle of a Term, you will be charged in full for the increased rate immediately.
5.4 After the expiration or termination of the Term provided in any applicable Order Form prices and rates are subject to change at Healthy Roster’s sole discretion. Such increases will be effective for any renewal terms.
5.5 All prices are exclusive of taxes and fees. You are responsible for payment of all such taxes or levies imposed on you as an account holder.
5.6 Billing discrepancies must be reported within 90 days of occurrence.
6. Warranties and Limitations of Liability.
6.1 In the event Customer and Healthy Roster have executed a Business Associates Agreement with terms that conflict with any provisions in this Section 6, the terms of the Business Associates Agreement control.
6.2 The Customer hereby represents and warrants to Healthy Roster that: (a) as of the Effective Date, it has the full right, power and authority to enter into, and fully perform its obligations under the Agreement; and (b). it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement.
6.3 Your access to and use of the Services or any Content is at your own risk. You understand and agree that the Services is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, HEALTHY ROSTER ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT
6.4 Healthy Roster Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis; (v) any advice or treatment information you receive through the Services; (vi) any injuries or harm you or a third party incurs as a result of information or advice received through the Services; and (viii) any condition, injury or harm to you or to a third party that occurred despite your use of the Services. No advice or information, whether oral or written, obtained from Healthy Roster Entities or through the Services, will create any warranty not expressly made herein.
6.5 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HEALTHY ROSTER ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE HEALTHY ROSTER ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID HEALTHY ROSTER, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE HEALTHY ROSTER ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6.6 CUSTOMER HERETO ACKNOWLEDGES THAT HEALTHY ROSTER HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN §6 AND THIS AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THE AGREEMENT.
6.7 The Healthy Roster Entities shall have no liability whatsoever to Customer for any damages related to the non-functioning of the Services (whether as a whole or in part) due to unavailability of the internet or due to changes in legislation or technical restrictions that limit access to or functionality of the Services. In the event of a change in laws or regulations in any of the countries in which Customer has Users, including changes to laws and regulations on cloud computing services, data protection and privacy, or Software as a Service, which impact Healthy Roster’s ability to offer the Services, Customer accepts that Healthy Roster may limit the availability of the Services in a manner to be determined in Healthy Roster’s sole discretion, and Customer hereby releases Healthy Roster from any liability relating to such limitation.
7. Indemnification. To the extent not prohibited by law, Customer expressly agree to defend, indemnify, and hold the Healthy Roster Entities harmless from and against any third-party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, without limitation, reasonable attorney fees) arising out of or related to: (i) any medical advice, treatment plan or other Content you share on the Services; (ii) your failure to take any action that results in harm, injury or death of a user, including without limitation, your failure to take necessary action upon receiving the results of a PHQ-9 form; (iii) your handling of the personal or medical information of a third party including without limitation your or Customer’s User’s actions in violation of HIPPA, HITECH or any other applicable law, regulation or standard, (iv) your misuse of the Services; or (v) any violation of this Agreement or applicable laws, rules or regulations, including without limitation, the obligations provided in Section 3 of this Agreement.
8. Controlling Law and Jurisdiction. The Agreement, including without limitation, any applicable Order Form and any action related thereto will be governed by the laws of the State of Ohio without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in Franklin County, Ohio, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Ohio (excluding choice of law).
9. General Provisions.
9.2 Any term of the Agreement may be amended, waived, terminated or discharged only with the written consent of both of the Parties. The failure of either Party to insist upon the performance of any of the terms or conditions contained in the Agreement, and the failure of either Party, to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.
9.3 If any provision of the Agreement is held to be unenforceable, the Parties shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each Party prior to such holding with respect to each such provision rendered unenforceable. If the Parties cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from the Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, the Agreement shall be enforceable in accordance with its terms.
9.4 Customer may not assign the Agreement, in whole or in part, by operation of Law or otherwise, without Healthy Roster’s consent. Any attempt by Customer to assign the Agreement other than in accordance with this Section shall be null and void and of no legal force or effect. The Agreement shall be binding upon and shall inure to the benefit of the parties successors and permitted assigns.
9.5 Neither Party may be held liable for its failure to perform hereunder or for any loss or damage due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.
9.6 Neither the Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the Parties. For the avoidance of doubt, neither Party has the power or authority to, and no Party may, assume or create any obligation or responsibility on behalf of the other.
9.7 The Agreement may be executed in two or more counterparts (including by electronic transmission), each of which shall be deemed an original and all of which together shall constitute a single instrument.