WAYFINDER™ SERVICE HIIN SUBLICENSE AGREEMENT
This Wayfinder™ Service HIIN Sublicense Agreement (“Agreement”) is made on ______, 201_ (“Effective Date”) by and between ______, an Ohio corporation, located at ______, ______, Ohio (“Sublicensee”), and the Ohio Hospital Association, an Ohio nonprofit corporation, located at 155 East Broad Street, Columbus, Ohio (“OHA”).
Recitals
OHA has entered into a Wayfinder™ Agreement with Battelle Memorial Institute (“Battelle”) to provide hospitals and health care systems access to, the Wayfinder™ Service, a web-based healthcare analytics service providing information and tools which display the results of one or more Wayfinder™ Modules for the assessment of hospital performance against a range of quality measures, both on an individual hospital snapshot basis and as part of aggregated hospital data benchmarked and analyzed for trends over time (“Wayfinder™ Service”). Because Sublicensee will have access to Wayfinder™ Service only if Sublicensee data is released to OHA, Sublicensee agrees to authorize such release of Sublicensee data under the terms and conditions of this Agreement.
NOW, THEREFORE, subject to the terms and conditions set forth below, the parties agree as follows:
1.Wayfinder™ Service. OHA grants, and Sublicensee accepts, a nonexclusive, nontransferable, revocable sublicense to use the Wayfinder™ Service during the term of this Agreement by employees of Sublicensee. Sublicensee may use the Wayfinder™ Service at theSublicensee Site to access aggregate Sublicensee data and to run customized reports for Sublicensee’s internal operations, in accordance with the terms of this Agreement. Sublicensee use of Wayfinder™ Service is strictly limited to the internal needs of Sublicensee; no resale or use on behalf of third parties is permitted. The Wayfinder™ Service will include any updates, modifications, enhancements and derivative programs as made available by Battelle, in its sole discretion. Documentation will be available in the help files of the Wayfinder™ Service and in a User Guide posted on the Wayfinder™ website.
2.Sublicensee Responsibilities.
2.1Access Requirements. Sublicensee is responsible for obtaining and maintaining sufficient computer equipment, printers, web browsers, and an internet connection to access and use the Wayfinder™ Service at Sublicensee’s site, in accordance with the specifications described in Attachment 1, which may be modified by OHA upon 90 days’ notice to Sublicensee.
2.2Submission of Data. Sublicensee agrees to submit to OHA the Sublicensee’s administrative claims data through the OHA Data Management Web Site. OHA will provide Sublicensee with the recommended data format and specifications following the execution of this Agreement. Sublicensee shall use its best efforts to ensure that all the information Sublicensee provides to OHA will be correct, current and complete. Sublicensee authorizes OHA to incorporate such Sublicensee data into the OHA Statewide Data Base and into the OHA Wayfinder™ website.
2.3User Access. Sublicensee shall be responsible for issuing and terminating passwords, verifying the status of employees and contractors authorized to access the Wayfinder™ Service and the web site designated by OHA from which Sublicensee can obtain online access to the Wayfinder™ Service (“Wayfinder™ website”), providing lists of valid passwords or sets of IP addresses of such “Authorized Users” to OHA, and updating such lists on a regular basis. The parties shall cooperate in the implementation of additional security procedures as may be required.
2.4Use of Wayfinder™ Website. Sublicensee shall be responsible for the following in relation to the Wayfinder™ website and data maintained or accessible on the Wayfinder™ website:
(i)using reasonable efforts to ensure that only Authorized Users are permitted access to the Wayfinder™ website.
(ii)taking reasonable steps to advise all Authorized Users of the terms and conditions of this Agreement and alert them that they may not use the Wayfinder™ Service or any of its integrated software or data for any use in violation of this Agreement, or otherwise reproduce, redistribute, retransmit, republish or exploit material accessed via this Agreement.
(iii)taking reasonable steps to monitor compliance with the terms of this Agreement and immediately on becoming aware of any breach by an Authorized User of this Agreement, terminate such Authorized User's access and notify in writing of such breach and termination.
2.5Security and Confidentiality. Sublicensee is responsible for securing access to and use of the Wayfinder™ Service in a manner to preserve the proprietary nature and confidentiality of the Wayfinder™ Service, and any related information and any patient or provider identifying information accessed pursuant to this Agreement.
3.OHA Responsibilities.
3.1Data Management. OHA will gather, clean and manage data collected from OHA Sublicensees and customers and deliver such data to Battelle on a quarterly basis to support the Wayfinder™ Service.
3.2Wayfinder™ Service Access. OHA will designate the Wayfinder™ website from which Sublicensee can obtain online access to the Wayfinder™ Service. OHA will work to properly link Battelle’s Quality Measures web-based dashboard products within the OHA Insight software platform to facilitate Sublicensee’s seamless access to the Wayfinder™ Service.
3.3Wayfinder™ Service Support. OHA will make available any necessary support for Sublicensee to install and begin to operate the Wayfinder™ Service. Battelle will make available to Sublicensee general service-wide updates and bug fixes for the Wayfinder™ Service, as determined in Battelle’s sole discretion. OHA will provide first level support for non-emergency informational and problem management assistance in the use of the Wayfinder™ Service. In the event that OHA determines that OHA will not be able to promptly resolve or respond to problems or requests for assistance, OHA will escalate the matter to Battelle. Battelle will maintain a problem/request management process to support the Wayfinder™ Service. Wayfinder™ Service Support is described in greater detail in Attachment 1 to this Agreement. Battelle will use reasonable efforts to respond to Sublicensee’s requests for assistance on any day of the week as soon as practicable following the time a call, email or fax is received by Battelle from Sublicensee.
3.4Use of Sublicensee Data. OHA agrees to comply with and to cause contractors of OHA to comply with all provisions of the Agreement for Release of and Access to Hospital Data previously entered into between OHA and Sublicensee. The use and disclosure of Protected Health Information shall be governed by Attachment 2 to this Agreement and the Agreement for Release of and Access to Hospital Data.
4.Proprietary Protection and Restrictions. No rights to any intellectual property or proprietary or confidential information, including without limitation the OHA Insight software and OHA Statewide Database, the Wayfinder™ Service or Wayfinder™ website (collectively “Proprietary Property”) are transferred by this Agreement. OHA and Battelle each shall be and remain the exclusive owner of all its respective Proprietary Property. The OHA Statewide Database and Wayfinder™ Service contain confidential information and trade secrets of OHA and Battelle. Sublicensee agrees to use the Wayfinder™ Service only as provided in this Agreement and agrees not, at any time, to copy, sell, transfer, publish, disclose, display or otherwise make the Wayfinder™ Service available to any employee or agent who does not need access thereto in connection with its use of the Wayfinder™ Service, and further agrees not to make available the Wayfinder™ Service to any third party without the advance written approval of OHA. Any modifications, updates, enhancements and derivative programs to the Proprietary Property of OHA or Battelle shall become and remain the property of OHA or Battelle, as the case may be. Sublicensee shall not engage in (a) reverse engineering, disassembling or decompiling the Proprietary Property or otherwise deriving the source code for the Proprietary Property, or converting the Proprietary Property to another programming language; (b) modifying or translating the Proprietary Property; (c) utilizing the Proprietary Property in connection with the provision of products or services of any kind or nature outside of the internal quality purposes of Sublicensee and/or to a third party; and (d) assigning, selling, pledging or otherwise transferring of the Proprietary Property. Sublicensee may allow third party contractors to access and use the Proprietary Property solely for Sublicensee’s projects in accordance with the terms of this Agreement, provided that each contractor has executed a confidentiality agreement with Sublicensee and Sublicensee assumes responsibility for their access and use of Proprietary Property. The obligations of this Section shall apply to the Wayfinder™ Service regardless of its use with or incorporation by Sublicensee into any other programs not provided by OHA or Battelle.
5.Warranty/Warranty Disclaimer and Limitation of Liability.
5.1Warranty/Warranty Disclaimer. OHA warrants that the Wayfinder™ Service will function substantially in accordance with documentation contained in the help files of the Wayfinder™ Service and the User’s Guide posted on the Wayfinder™ website, and that OHA will perform any services provided under this Agreement with the degree of skill and judgment normally exercised by recognized professional firms performing the same or substantially similar services. Nothing in this Agreement shall be deemed to be a representation or warranty by OHA or Battelle of the accuracy, safety or usefulness for any purpose, of the Wayfinder™ Service and the results from the use thereof at any time made available by OHA or Battelle. OHA, ON BEHALF OF ITSELF AND ON BEHALF OF BATTELLE, DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE WAYFINDER™ SERVICE, PROPRIETARY PROPERTY AND THE WAYFINDER™ WEBSITE, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO ACCURACY, COMPLETENESS, CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR MEETING SUBLICENSEE’S BUSINESS REQUIREMENTS OR EXPECTATIONS. OHA MAKES NO WARRANTY THAT THE WAYFINDER™ SERVICE WILL BE ERROR FREE OR THAT ACCESS TO THE WAYFINDER™ SERVICE WILL BE UNINTERRUPTED. AS SUBLICENSEE’S EXCLUSIVE REMEDY FOR ANY MATERIAL DEFECT IN THE WAYFINDER™ SERVICE AND WAYFINDER™ WEBSITE, OHA SHALL USE REASONABLE EFFORTS TO FACILITATE THROUGH BATTELLE THE CORRECTION OF ANY REPRODUCIBLE DEFECT. OHA AND BATTELLE SHALL NOT BE OBLIGATED TO CORRECT OR OTHERWISE REMEDY ANY NONCONFORMITY OR DEFECT CAUSED BY SUBLICENSEE OR SUBLICENSEE’S AGENTS OR CONTRACTORS OR BY FORCES OR CIRCUMSTANCES BEYOND THE CONTROL OF OHA AND BATTELLE.
5.2LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCE SHALL SUBLICENSEE, BATTELLE OR OHA, OR ANY OF THEIR RESPECTIVE AFFILIATES OR CONTRACTORS, HAVE ANY LIABILITY WHATSOEVER TO THE OTHER PARTY OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED UPON THE OTHER PARTY OR ANY OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE OTHER PARTY’S ACTS OR OMISSIONS IN (I) THE USE, SALE OR DISTRIBUTION OF THE WAYFINDER™ SERVICE OR ANY APPARATUS OR PRODUCT, OR PROCESS; (II) THE USE OF ANY TECHNICAL INFORMATION, SEARCH RESULTS, TECHNIQUES, OR PRACTICES CONNECTED TO THE WAYFINDER™ SERVICE; OR (III) ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES WITH RESPECT TO ANY OF THE FOREGOING. EXCEPT FOR VIOLATIONS OF SECTION 4, THE CUMULATIVE LIABILITY OF SUBLICENSEE, OHA AND BATTELLE FOR ALL CLAIMS RELATING TO THE WAYFINDER™ SERVICE, THE WAYFINDER™ WEBSITE AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FIFTEEN THOUSAND DOLLARS ($15,000.00). THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. OHA AND BATTELLE SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT SUBLICENSEE IS RESPONSIBLE FOR REASONABLE BACKUP PRECAUTIONS.
5.3DISCLAIMER OF DAMAGES. EXCEPT FOR VIOLATIONS OF SECTION 4, IN NO EVENT SHALL SUBLICENSEE, OHA OR BATTELLE BE LIABLE FOR ANY LOSS OF PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY CLAIMS OR DEMANDS BROUGHT BY A THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS.
5.4ACKNOWLEDGEMENT. THE LIMITATIONS UPON LIABILITY AND DISCLAIMERS OF DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. NO ACTION RELATING TO THIS AGREEMENT OR THE WAYFINDER™ SERVICE MAY BE INSTITUTED BY ANY PARTY MORE THAN ONE (1) YEAR AFTER THE INSTITUTING PARTY HAS ACTUAL NOTICE OF THE EVENT GIVING RISE TO SUCH ACTION.
5.5NO RESPONSIBILITY FOR OUTSIDE SOURCES. THE WAYFINDER™ SERVICE AND WAYFINDER™ WEBSITE MAY CONTAIN REFERENCES OR LINKS TO OUTSIDE SOURCES, WORLD WIDE WEB SITES, OR INFORMATION, REFERENCES OR RESOURCES COMPILED FROM DATA AND MATERIALS FURNISHED BY THIRD PARTIES (“OUTSIDE SOURCES”). SUBLICENSEE ACKNOWLEDGES THAT OHA AND BATTELLE HAVE NO CONTROL OVER OUTSIDE SOURCES AND AGREES THAT OHA AND BATTELLE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELEVANCY, COMPLETENESS OR AVAILABILITY OF SUCH OUTSIDE SOURCES, OR FOR ANY CONTENT ON OR AVAILABLE FROM SUCH OUTSIDE SOURCES. ANY RECOMMENDATIONS OR STATEMENTS MADE BY OHA OR BATTELLE AS PART OF THE WAYFINDER™ SERVICE SHALL NOT BE CONSTRUED, IN ANY MANNER, IN WHOLE OR IN PART, AS AN EXPRESS OR IMPLIED WARRANTY OF THE SYSTEMS, PROCEDURES, PRACTICES OR POLICIES REFERRED TO IN THE OUTSIDE SOURCES.
6.Term of Agreement; Termination. The term of this Agreement shall commence on the Effective Date and shall continue until the later of December 31, 2018 or in the event the HIIN Contract option period is exercised, December 31, 2019, unless sooner terminated as provided herein. Either party may terminate this Agreement: (i) immediately if the other party is excluded, suspended or debarred from any federal health care program as defined at 42 USC 1320a-7b(f); (ii) if the other party fails to comply with any material term of this Agreement and fails to cure the breach within thirty (30) days after written notice of such breach from the other party; or (iii)without cause or penalty, upon ninety (90) days written notice. This Agreement may be terminated by OHA upon notice to Sublicensee in the event of termination of the OHA-Battelle Wayfinder™ Agreement. Upon termination, Sublicensee immediately will surrender all access to the Wayfinder™ Service and the Wayfinder™ website, and all copies of related application documentation, in any form. The Sublicensee data files generated by Sublicensee through use of the Wayfinder™ Service shall remain owned by Sublicensee and may be retained by Sublicensee on termination.
7.Limited Data Set. Sublicenseeacknowledges that the Wayfinder™ Service may incorporate a Limited Data Set(s) of Protected Health Information (“PHI”) as defined at 45 C.F.R. §164.514. Sublicensee agrees to comply with all applicable privacy and security regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) applicable to the Limited Data Set(s), as set forth in 45 C.F.R. Parts 160 and 164, including without limitation, all of the following:
a.Sublicensee will not use or further disclose the Limited Data Set(s) other than as permitted by this Agreement, or as otherwise required by law;
b.Sublicensee will use appropriate safeguards to prevent the use or disclosure of the Limited Data Set(s) other than as provided for by this Agreement;
c.Sublicensee will report to OHA any use or disclosure of the Limited Data Set(s) not provided for by this Agreement of which it becomes aware;
d.Sublicensee will ensure that any agents, including subcontractors, to whom Sublicensee provides the Limited Data Set(s) agree to the same restrictions and conditions that apply to Sublicensee with respect to the Limited Data Set(s); and
e.Sublicensee will not attempt to identify the individuals whose information is contained in the Limited Data Set(s) or attempt to contact the individuals.
OHA reserves the right to terminate Sublicensee’s use of and access to the Wayfinder™ Service at any time that OHA has reason to believe that Sublicensee has violated any of the conditions set forth in paragraphs (a) through (e) of this Section.
8.Confidentiality.
8.1OHA Confidentiality Obligation. Except as otherwise provided herein, OHA agrees not to disclose to a third party any written information obtained from Sublicensee pursuant to this Agreement, that is marked as “Confidential,” “Proprietary,” or “Business Sensitive” or with like proprietary designation without Sublicensee’s written consent, except as required by law, or except as necessary to protect OHA’s or Battelle’s intellectual property rights. Nothing contained herein restricts or impairs OHA’s right to use, disclose or otherwise deal with any data, results or information which: (a) was generally available to the public or thereafter becomes generally available to the public by publication or otherwise through no fault of OHA; (b) was made available to OHA under another agreement; (c) was in OHA’s possession prior to the time of disclosure to or development by OHA hereunder; (d) was independently made available to OHA with no restriction on use or disclosure as a matter of lawful right by a third party; (e) was independently developed by OHA; or (f) is required to be disclosed by a court of competent jurisdiction or by a government agency.
8.2Sublicensee Confidentiality Obligation. Except as otherwise provided herein, Sublicensee agrees to not disclose to a third party any written information obtained from OHA, that is marked as “Confidential” “Proprietary,” or “Business Sensitive” or with like proprietary designation without OHA’s written consent, except as required by law. Nothing contained herein restricts or impairs Sublicensee’s right to use, disclose or otherwise deal with any data, results or information which: (a) was generally available to the public or thereafter becomes generally available to the public by publication or otherwise through no fault of Sublicensee; (b) was in Sublicensee’s possession prior to the time of disclosure to or development by Sublicensee hereunder; (c) was independently made available to Sublicensee with no restriction on use or disclosure as a matter of lawful right by a third party; or (d) was independently developed by Sublicensee. Information that comprises a combination of features shall not be within any of the exceptions set forth above merely because individual features are known or received by Sublicensee or are in or fall into the public domain, but only if the combination is known or received by Sublicensee or is in or falls into the public domain as provided above. Sublicensee may disclose Proprietary Information of OHA to the extent necessary to comply with an order from a court or government agency under conditions that maintain the confidentiality of such Proprietary Information; provided, however, that Sublicensee promptly notifies OHA of such order to allow OHA the opportunity to seek an appropriate protective order, exemption or other relief from such requirement or request.