This Master Agreement("Master Agreement") is entered into as of ____________ (“Effective Date”), by and between Innovu, LLC, a Delaware limited liability corporation(“Innovu”) with its principal office located at 1250 Penn Avenue, Suite 300,Pittsburgh, PA 15222 and ________________("Customer") with its principal office located at ________________________________________________________________________________________.
In consideration of the mutual promises contained herein, the parties, intending to be legally bound, agree as follows:
1.1 Innovu will provide to Customer access to Innovu cloud offerings and/or services (collectively “Solutions”) specified in one or more order forms (“Order Form(s)”), which shall be signed by the parties or by Innovu and Customer’s designated agent (“Advisor”) and are hereby incorporated into this Master Agreement. The parties agree that this Master Agreement shall govern access to and use of the Solutions.
1.2 Any additional terms that apply to any specific type of Solutions are detailed in any attached Addenda to this Master Agreement (referred hereupon “Addendum” in the singular, and “Addenda” in the plural). Any Addenda shall be governed by and is hereby incorporated into this Master Agreement. Addenda may also contain website links to Innovu policies. Any such policies are also incorporated into this Agreement, and may be updated by Innovu at any time.
1.3 Innovu is a Business Associate as defined within the Health Insurance Portability and Accountability Act (“HIPAA”). As such Innovu agrees to provide Solutions in accordance with the HIPAA regulations or any updates to those regulations in the future. Innovu will periodically audit its internal processes to verify compliance with HIPAA regulations and shall make the resulting reports available to Customer.
1.4 This Master Agreement, any attached Addenda, Business Associate Agreement, and any Order Forms are collectively referred to herein as the “Agreement”.
2.1 Customer shall pay Innovu, or ensure that its Advisor pays Innovu, all Fees and applicable Taxes, as described below:
2.1.1 “Fees” means the amounts set forth in each Order Form payable to Innovu as full compensation for the Solutions to be provided by Innovu pursuant to the Agreement.
2.1.2 “Taxes” means all federal, state or local sales, use, excise, or other taxes imposed by any jurisdiction relating to the Solutions provided to Customer by Innovu under the Agreement, exclusive of taxes based on Innovu's net income. If Innovu is legally obligated to collect and remit any such Taxes, Innovu will invoice Customer, or its Advisor, as applicable, for such Taxes. Each party shall comply with all applicable tax laws and regulations.
2.1.3 Innovu shall invoice Customer or its Advisor at the address specified in the applicable Order Form for the Fees and any applicable Taxes according to the schedule set forth in the Order Form, or, if there is no invoice schedule in the Order Form, then upon execution of the Order Form. Customer shall pay, or shall ensure that its Advisor pays, all invoices within thirty (30) days from the date of the invoice in U.S. dollars from a U.S. location.
2.2 If Customer arranges for payment through its Advisor, and the Advisor fails to make payment in accordance with the Agreement, then Customer agrees that Customer shall guarantee and be responsible for such payment.
3.1 Innovu or its third party licensors own and retain any and all rights, title and interest in and to: (a) the Solutions, (b) any programs, software, documentation, models, templates, user interfaces, scripts, programming languages, libraries, screen designs, data, information and other work product developed by Innovu or its licensors independently or together with Customer or third parties in connection with Innovu’s provision of the Solutions; (c) any and all copyrights, trademarks, trade secrets, patent rights, and any other intellectual property rights associated with everything listed in the foregoing sections (a) and (b); and, (d) modifications to and derivatives of everything listed in the foregoing sections (a), (b) and (c) (all of (a) (b) (c) and (d) collectively referred to as “Innovu IP”). Customer is granted only the limited non-exclusive rights to access and/or use the Solutions as expressly set forth in the Agreement. This Agreement does not transfer from Innovu any proprietary right or interest in the Solutions or any Innovu IP. All rights not expressly granted in the Agreement are reserved by Innovu.
3.2 Customer will be responsible for the acts and omissions of its employees, Advisors, and contractors to whom Customer grants access to the Solutions and any other Innovu IP (“Customer Users”) as if they were the acts and omissions of Customer. Customer will not, and will not permit its Customer Users to: (a) reproduce, modify, alter, transfer, assign, reverse engineer, decompile, disclose, license, sublicense, sell, resell, lease, rent, distribute, or provide any third party with access to any Innovu IP except as expressly permitted by the Agreement; (b) access or use the Innovu IP except for Customer’s own internal business purposes or as otherwise expressly stated in the Agreement; (c) access and/or use any Solution in any manner that violates any applicable law or regulation, or violates the rights of any party.
3.3 Innovu shall, at its sole expense, defend Customer against any claims that Customer’s use of the Solutions violates, infringes or misappropriates any third party U.S. patent, copyright or trade secret. Innovu shall pay any damages finally awarded to such third party, or any amount specified in a settlement between Innovu and such third party to settle the claim, in addition to reasonable attorneys’ fees and other costs of defense. In the event that Customer is enjoined from using the Solutions as a result of such claim, Innovu shall (i) modify the Solution so as to make it non-infringing while preserving equivalent or better functionality; (ii) replace the Solution with mutually agreeable functionally; or, (iii) terminate Customer’s subscription to the Solution, and refund any portion of the Fees prepaid by Customer or its Advisor for the Solution for the time period subsequent to such termination. Innovu’s obligations described in this section are conditioned upon: (a) Customer providing Innovu of timely notice of such claim; (b) Customer permitting Innovu sole control of the defense of such claim; and, (c) Customer reasonably cooperating with Innovu and Innovu counsel in the defense of such claim. Innovu shall not have any obligations pursuant this section to the extent that such claim is caused by Customer’s non-compliance with this Agreement, modification of the Solutions not authorized by Innovu, Customer’s use of the Solutions in combination with third party products not authorized by Innovu, and/or Customer’s continued use of the Solutions after Innovu has notified Customer to cease use and provided Customer with replacement functionality (in compliance with the foregoing) at no additional charge. THE PROVISIONS OF THIS SECTION STATE INNOVU’S ENTIRE OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR THIRD PARTY INTELLECTUAL PROPERTY CLAIMS.
3.4 The terms of this Section 3 shall survive any expiration or termination of the Agreement.
4.1 The term "Confidential Information" shall mean any Personally Identifiable Information (“PII”), any Protected Health Information (“PHI”), any Innovu IP, Innovu or Customer’s trade secrets, existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and information relating to business plans, sales or marketing methods and customer lists or requirements.
4.2 The parties shall each (i) hold the Confidential Information of the other in trust and confidence and prevent the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to prevent unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under the Agreement. Each party shall disclose the Confidential Information of the other only to those of its employees having a need to know such Confidential Information, and to such other recipients as the other party may approve in writing; provided, that all such persons and entities have signed a non-disclosure agreement containing provisions no less restrictive than those contained in this Section 4. In addition, each party may disclose the Confidential Information to any entity that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such party (collectively, the "Affiliates") and to contractors of each party and its Affiliates under an obligation to maintain the confidentiality of the Confidential Information. Neither party nor any recipient may alter or remove from any materials or documentation owned or provided by the other party any proprietary copyright, trademark or trade secret legend.
4.3 The obligations of either party under this Section 4 will not apply to information or materials that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, or (iv) is independently developed by the receiving party without reference to the Confidential Information of the other party. The obligation of non-disclosure shall not apply to the extent that such disclosure is required by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall (unless otherwise prohibited by applicable law) furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party's cost and expense, in the disclosing party's lawful attempts to seek a protective order or other appropriate protection of its Confidential Information.
4.4 The obligations imposed by this Section 4 shall survive any expiration or termination of this Agreement.
5.1 Customer shall own and be solely responsible for the data that Customer enters into Innovu Solutions and/or otherwise provides to Innovu (“Customer Data”), subject to the limited rights granted to Innovu in the Agreement, and except to the extent such Customer Data is transformed into Aggregated Data as described below.
5.2 Customer hereby grants Innovu the right and license to use, process, reproduce, distribute and disclose Customer Data solely in the performance of Innovu’s obligations under this Agreement, and subject to all terms and conditions set forth in this Agreement. Customer hereby consents to the following Innovu activities in connection with its Customer Data: Aggregation of Customer Data with data provided by other Innovu customers, and cleansing of such aggregated data so that it will not identify any individual member and cannot be associated with any particular Innovu customer (resulting data referred to as "Aggregated Data"). Such Aggregated Data will be deemed part of Innovu IP and may be retained by Innovu for use, disclosure, and reproduction, at Innovu’s sole discretion, during and subsequent to expiration or termination of the Agreement.
5.3 At Customer’s request or at the termination of this Agreement, Innovu shall delete or return any source data provided to Innovu from Customer. Innovu will only return source data to Customer in a secure manner and with a HIPAA compliant method. However, Innovu may retain a reasonable number of archival copies to perform services under this Agreement.
6.1 Innovu warrants that the Solutions will substantially conform to the specifications stated in the Agreement, and that it will perform all services in a workmanlike and professional manner consistent with generally accepted industry practices. The foregoing warranty shall not apply to the extent the Solution is not being used in accordance with this Agreement, or any non-conformity is caused by Customer or a third party, or by third party products, services, or data. Customer's sole and exclusive remedy, and Innovu's entire liability for breach of the foregoing limited warranty shall be correction of the warranted non-conformity or, if Innovu is unable to correct the non-conformity, then Innovu will terminate the applicable portion of the Order Form for the non-conforming Solution. In the event of such termination, Customer (or its Advisor, as applicable, per Section 2 above) shall pay all fees, Taxes and expenses due upon to the date of such termination, but shall be relieved from any obligation to pay any fees for any period subsequent to such termination. In order to obtain the remedies described in this section, Customer must notify Innovu of any non-conformity within ninety (90) days of discovery.
6.2 EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 6.1 ABOVE, NO WARRANTY IS MADE WITH RESPECT TO THE SOLUTIONS OR ANY PART THEREOF INCLUDING ACCURACY OR RESULTS. NEITHER INNOVU NOR ITS LICENSORS WARRANT THE USE OF THE SOLUTIONS FOR ANY SPECIFIC SITUATION OR FOR ANY SPECIFIC APPLICATION. INNOVU AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABLITY AND FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ASSUMES ALL LIABILITY RESULTING FROM THE USE OF THE SOLUTIONS AND AGREES TO HOLD INNOVU AND ITS LICENSORS HARMLESS FROM ALL LOSSES OR DAMAGES RESULTING FROM SUCH USE.
6.3 Except for a party’s breach of confidentiality obligations hereunder or Customer’s material breach of section 3 above, each party’s liability under this Agreement or any Order Form for damages, regardless of the form of action, shall not exceed in the aggregate 100% of the total amount paid, due and/or chargeable (or in the case of Customer’s liability, 100% of the total amount paid plus any outstanding amounts due) for Solutions under the applicable Order Form. The parties agree that amounts stated herein are fair under the circumstances and that the prices reflect the parties’ agreement to the limitations of liability set forth in this Section 6. Neither party shall be liable for any damages arising from or in connection with a breach of a party’s confidentiality obligations hereunder in excess of two million dollars in the aggregate.
6.4 EXCEPT FOR DAMAGES ARISING FROM A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER (SUBJECT TO SECTION 6.3 ABOVE) OR CUSTOMER’S MATERIAL BREACH OF SECTION 3 ABOVE, NEITHER CUSTOMER NOR INNOVU (OR ITS LICENSORS) SHALL BE LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, IRRESPECTIVE OF THE CAUSE OR CAUSES, INCLUDING STRICT LIABILITY, BREACH OF WARRANTY OR NEGLIGENCE OF ANY PARTY.
6.5 In the event either party is delayed or prevented from performing this Agreement due to any cause beyond its reasonable control, including but not limited to, strike, labor or civil unrest or dispute, embargo, blockage, work stoppage, protest, acts of terrorism, or acts of God, such delay shall be excused during the continuance of such delay, and the period of performance shall be extended to such extent as may be reasonable to perform after the cause of delay has been removed. In the event any such delay continues for a period of more than ninety (90) days, either party may terminate any Order Form under which performance is delayed upon written notice to the other party. In the event of any such termination, Customer shall pay Innovu for work performed through the effective date of termination.
7.1 The term of this Agreement shall begin on the Effective Date written above and will remain in effect until either party terminates the Agreement as set forth in this Section 7. This Agreement shall remain in effect until all Solutions and/or services have expired or are cancelled with such termination effective with a ninety (90) day, written notice to the other party.
7.2 Any Order Form(s) hereunder may be terminated by either party (the "non-defaulting party") if the other party (the "defaulting party") commits a material breach of any of its obligations hereunder or in any Order Form and such breach remains uncured for thirty (30) days following receipt of written notice from the other party.
7.3 Innovu may suspend Customer’s access to the Solution(s) and stop related services if: (a) Customer or its Advisor, as applicable, fails to pay any invoice issued by Innovu in accordance with the Agreement within ten (10) business days after the due date; or (b) such suspension is necessary to stop or prevent illegal activity on the Solution by Customer or Customer Users. In the case of such suspension, Innovu will (unless otherwise prevented by applicable law or court order) restore Customer’s access and resume provision of Solutions promptly upon: (i) receipt of payment, or, as applicable, (ii) cessation of illegal activity and reasonable assurance from Customer that such illegal activity will not resume.
7.4 All provisions of this Agreement that, by theirnature and content, should survive the completion, rescission, termination orexpiration of this Agreement in order to achieve the fundamental purposes ofthis Agreement shall so survive and continue to bind the parties. If Customer terminates its relationship withEPIC it will no longer be eligible to receive EPIC’s preferred pricing andCustomer’s pricing will be adjusted upon renewal to the appropriate Innovustandard pricing.
8.1 Innovu shall, at its sole cost and expense, secure and maintain the following coverage, at all times during the term of this Agreement, with one or more insurance companies:
8.1.1 Automobile Liability insurance with One Million Dollars ($1,000,000) Combined Single Limit for bodily injury per person/per accident and property damage per event;
8.1.2 Worker's Compensation/Employer’s Liability insurance of not less than Five Hundred Thousand Dollars ($500,000) each accident, each employee and policy limit;
8.1.3 General Liability insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate insuring against loss, damage or injury to property or persons that might arise out of Innovu’s activities in connection with this Agreement;
8.1.4 Errors & Omissions, Network Security and Privacy Liability (Cyber) coverage in an amount of not less than Five Million Dollars ($5,000,000) per occurrence and aggregate; and
8.1.5 Excess Liability Policy (Umbrella policy) in an amount not less than Four Million Dollars ($4,000,000) to be excess over the underlying General Liability, Automobile Liability and Employers Liability as it relates to Workers Compensation.
9.1 Innovu’s personnel are not and shall not be deemed to be employees of Customer. Innovu shall be solely responsible for the payment of all compensation to its personnel, including provisions for employment taxes, workmen's compensation and any similar taxes associated with employment of Innovu’s personnel. Innovu’s personnel shall not be entitled to any benefits paid or made available by Customer to its employees.
10.1 No failure or delay by any party in exercising any of its rights or remedies hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Except as otherwise expressly stated in the Agreement, the rights and remedies of the parties provided in this Agreement are cumulative and not exclusive of any rights or remedies provided under this Agreement, by law, in equity or otherwise.
10.2 Innovu and Customer are not partners or joint ventures’; neither party is the agent, representative or employee of the other party; and nothing in this Agreement will be construed to create any relationship between them other than an independent contractor relationship.
10.3 All notices, consents and other communications required or that may be given under this Agreement will be deemed to have been given (a) when delivered by hand; (b) three (3) days after being mailed by registered or certified mail, return receipt requested; or (c) when received by the addressee, if sent by facsimile transmission or by Federal Express or other express delivery service (receipt requested), at the address set forth at the beginning of this Agreement, (or to such other person or address as such party may hereafter designate by notice to the other party hereto).
10.4 Neither this Agreement nor any right, interest or obligation hereunder may be assigned, pledged or otherwise transferred by any party without the prior consent of the other party, except in the case of a successor to substantially all of the interests of such party. This Agreement shall inure to the benefit of and shall be binding upon Innovu, Customer and their respective successors, heirs and permitted assigns.
10.5 If and to the extent any provision of this Agreement is held illegal, invalid or unenforceable at law, such provision will be deemed stricken from the Agreement and the remainder of the Agreement will continue in effect and be valid and enforceable to the fullest extent permitted by law.
10.6 This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to the principles of conflicts of law. The prevailing party in any legal proceedings brought by or against the other party to enforce any provision or term of this Agreement shall be entitled to recover against the non-prevailing party the reasonable attorneys' fees, court costs and other expenses incurred by the prevailing party. Suit to enforce any provision of this Agreement or to obtain any remedy with respect hereto shall be brought EXCLUSIVELY in the applicable state or federal courts of Allegheny County, Pennsylvania. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.
10.7 This Agreement (including any Addenda) and each Order Form, now or hereafter executed, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous proposals, communications, representations and agreements, whether oral or written, with respect to the subject matter hereof. No course of dealing, trade customs, other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Innovu, by any of its sales personnel, employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject hereof. This Agreement may not be amended or modified, nor may any right or remedy of any party be waived, unless the same is in writing and signed by a duly authorized representative of such party. No consent by any party to, or waiver of, a breach by the other party shall constitute consent to, waiver of, or excuse of any other different or subsequent breach.
10.8 Dispute Resolution. Any controversy, claim, or dispute (“Disputed Claim”) arising out of or relating to this Agreement must follow the dispute resolution process stated in this Agreement. The parties shall use reasonable efforts to resolve any claim or dispute arising under this Agreement as soon as is reasonably practicable. In the event of a Disputed Claim, each party shall in the first instance promptly bring the Disputed Claim to the attention of a Director or similar person in a management position (“Responsible Executives”). If any Disputed Claims are not resolved by the Responsible Executives within a reasonable time period, but in no instance more than sixty (60) days, either party may pursue its rights and remedies available under law or in equity. Notwithstanding the foregoing, nothing shall prevent either party from seeking temporary injunctive relief to protect its intellectual property rights, Confidential Information, or to maintain the status quo pending resolution of any dispute.
10.9 Innovu shall not use Customer's name, Customer's Affiliates in any press release or marketing materials without Customer's prior consent. Customer agrees that Innovu may reference its general business relationship with Customer for marketing purpose
10.10 Innovu shall retain the right to perform similar work for others, including competitors of the Customer, during the term of this Agreement. Customer shall retain the right to cause work of the same or a different kind to be performed by its own personnel during the term of this Agreement.
10.11 The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement. Any dispute or other action arising out of this Agreement must be brought within one (1) year of the date the cause of action accrued, except that an action for nonpayment may be brought within one (1) year of the date of the last payment.
10.12 This Agreement may be signed in counterparts, each of which shall be deemed an original, but both of which taken together shall constitute one and the same instrument. To expedite order processing, both parties agree that the other party may treat documents faxed or emailed as original documents.
1. The specific Innovu Cloud Solution to which Customer has been granted access is described in applicable documentation that can be found at the following location https://innovu.com/documentation Innovu reserves the right to update any policies and/or documentation for the Innovu Cloud Solutions at any time.
2. For purposes of this Innovu Cloud Solutions Addendum, “Customer” shall be understood to include “End Customers” when the Customer signing this Addendum is acting in the role of Advisor.
3. Use of Innovu Cloud Solutions
4. Rights in Innovu Cloud Solutions
5. Usage metrics for Innovu Cloud Solutions
6. The Provision of Services and System Availability for Innovu Cloud Solutions can be found at https://innovu.com/provision-of-services.
7. The Security & Privacy Disclosures for Innovu Cloud Solutions can be found at https://innovu.com/security-privacy-disclosures.
8. The Standard Support Plan will be provided to Customer's Users at no additional charge. The Standard Support Plan for Innovu Cloud Solutions can be found at can be found at https://innovu.com/standard-support-plan.
9. The following terms apply to Customer for the use of the American Medical Association (AMA) CPT codes in the Innovu Cloud Solutions.
9.1 Grant of Rights Restrictions
i. Innovu has licensed the 2014 Editorial Content from the AMA and the license granted is a nontransferable, nonexclusive license, for the sole purpose of internal use by Customer within the United States.
ii. Customer is prohibited from publishing, distributing via the Internet or other public computer based information system, creating derivative works (including translating), transferring, selling, leasing, licensing or otherwise making available to any unauthorized party Innovu Cloud Solutions, or a copy or portion of Innovu Cloud Solutions.
iii. Provision of updated Editorial Content in Innovu Cloud Solutions is dependent on continuing contractual relationship between Innovu and the AMA.
b. Notices
i. CPT is copyrighted by the AMA and CPT is a registered trademark of the AMA.
ii. U.S. Government Rights
This product includes CPT which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Medical Association, AMA Plaza, 330 N. Wabash Ave., Suite 39300, Chicago, IL 60611-5885. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (February 2014) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (May 2014) and/or subject to the Limited Rights Notice or the Restricted Rights Notice of FAR 52.227-14 (May 2014) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
9.3 Back Up Rights
Customer may only make copies of the results of Innovu Cloud Solutions’ product for back up or archival purposes and all notices of proprietary rights, including trademark and copyright notices, must appear on all permitted back up or archival copies made.
9.4 Miscellaneous
Editorial Content as contained in the Innovu Cloud Solutions is provided “as is” without any liability to the AMA, including without limitation, no liability for consequential or special damages, or lost profits for sequence, accuracy, or completeness of data, or that it will meet the Customer’s requirements, and that the AMA’s sole responsibility is to make available to Innovu replacement copies of the Editorial Content if the data is not intact; and that the AMA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in Editorial Content.
1.1 The parties desire to comply with federal and Pennsylvania laws regarding the use and disclosure of individually identifiable health information, in particular with the provisions of the federal Health Insurance Portability and Accountability Act (HIPAA), and the Health Information Technology for Economic and Clinical Health Act (HITECH), and regulations promulgated under these laws.
1.2 In order for Innovu to allow Advisor, its designated agents, contractors and subcontractors access to Advisor Data (as defined below), the parties agree that they must enter into this Business Associate Agreement (“Agreement”).
1.3 The parties have accordingly agreed to enter into the following terms and conditions.
Now therefore, in consideration of the promises set forth herein, the parties agree as follows:
2.1 Definitions. The parties agree that any capitalized terms shall have the same definition as given to them under HIPAA and HITECH and regulations promulgated under these laws.
2.2 Protected Health Information and Customer Data. Business Associate may use or disclose Protected Health Information (“PHI”) to perform functions, activities, or services for or on behalf of, the Advisor subject to the limitations in this Business Associate Agreement. Except as otherwise limited by this Agreement, Business Associate may use PHI to provide data aggregation services to Advisor as permitted by 45 CFR §164.504(e)(2)(i)(B). Data that are entered into Innovu Solutions and/or otherwise provided to Innovu (“Advisor Data”) shall continue to be Advisor’s, subject to the limited rights granted to Innovu in the Agreement, and except to the extent such Advisor Data is transformed into Aggregated Data as described below. At Advisor’s request, Innovu shall delete or return any source data provided to Innovu from Advisor. Innovu will only return source data to Advisor in a secure manner and with a HIPAA compliant method. However, Innovu may retain a reasonable number of archival copies to perform services under this Agreement.
2.3 Obligations of Business Associate. Business Associate shall limit its use and disclosure of PHI: (i) as necessary and appropriate to fulfill its obligations to Advisor, and, (ii) as set forth in Section 2.3.1 below. Business Associate agrees to the following, without limiting the foregoing:
2.3.1 Use of PHI: Business Associate and its agents, employees and subcontractors:
(a) Shall not use or disclose PHI in a manner that would violate applicable law regarding the confidentiality of PHI;
(b) To the extent feasible, shall minimize any Access, Use or Disclosure of PHI while performing obligations under this Agreement;
(c) May use PHI to create a Limited Data Set to perform certain health care operations for any of Business Associate’s customers who are covered entities under HIPAA, or the business associates of covered entities, during and/or subsequent to the term of this Agreement;
(b) May de-identify PHI in accordance with the requirements of 45 C.F.R. §164.514 for use by Business Associate to carry out any of the permissible uses or disclosures under this Agreement and/or to provide services to any of Business Associate’s customers during and/or subsequent to the term of this Agreement.
2.3.2 Safeguards: Business Associate shall implement and use Administrative Safeguards as required by 45 C.F.R. Section 164.308, Physical Safeguards as required by 45 C.F.R. Section 164.310, and Technical Safeguards as required by 45 C.F.R. Section 164.312 that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI, including Electronic PHI that Business Associate creates, receives, maintains or transmits on behalf of Advisor. Business Associate shall also comply with the policies and procedures and documentation requirements of the HIPAA Security Rule, including, but not limited to, 45 C.F.R. Section 164.316.
2.3.3 Reporting: Business Associate shall report to the President of Advisor any Breach of PHI by Business Associate, its agents or subcontractors within 5 calendar days of discovery. Reports shall include, to the extent possible: A description of what happened, including the date of the Breach and the date of the discovery of the Breach, if known; A description of the types of Unsecured PHI that were involved in the Breach; Any steps individuals should take to protect themselves from potential harm resulting from the Breach; and a description of what Business Associate is doing to investigate the Breach, to mitigate harm to individuals, and to protect against any further Breaches. Business Associate shall also promptly report in electronic form to the Security Officer of Advisor any Security Incident relating to Electronic PHI of which Business Associate becomes aware.
2.3.4 Workforce and Agents: Business Associate represents and warrants that it shall not disclose PHI to any member of its workforce, or to any of its agents or subcontractors, unless such person has a need to know the PHI. Business Associate shall also ensure that the requirements of this Agreement are incorporated into each agreement with any agent or subcontractor to whom Business Associate discloses PHI, and that each such agent and/or subcontractor shall agree in writing to be bound to the same terms and conditions that apply to Business Associate with respect to PHI. In addition, Business Associate shall ensure that any agent or subcontractor to whom Business Associate discloses PHI shall implement reasonable and appropriate safeguards to protect the PHI. Business Associate shall not disclose any PHI to any agent or subcontractor that is located outside of the United States of America without the express written consent of Advisor.
2.3.5 Access to PHI: Upon the request by Advisor, Business Associate shall promptly provide PHI to Advisor to permit any individual whose PHI is maintained by Business Associate to have access to and to copy his/her PHI in accordance with 45 C.F.R. §164.524, the HITECH Act and applicable Pennsylvania law. Such PHI shall be produced in the format requested by Advisor, unless it is not readily producible in such format, in which case it shall be produced in hard copy format. If Business Associate maintains an Electronic Health Record, Business Associate shall provide such information in electronic format to enable Advisor to fulfill its obligations under the HITECH Act. If an individual contacts Business Associate directly for such access, Business Associate shall direct the individual to contact the Advisor. This requirement to provide access to the PHI shall only apply if the PHI in Business Associate’s possession is part of the Advisor’s Designated Record Set.
2.3.6 Amendment of PHI: Upon the request of Advisor, Business Associate shall amend PHI and/or make PHI available to Advisor for amendment, in such manner as Advisor may from time to time request, in accordance with 45 C.F.R. §164.526 and applicable Pennsylvania law. If an individual contacts Business Associate directly to amend PHI, Business Associate shall direct the individual to contact the Advisor. This requirement to amend the PHI shall only apply if the PHI in Business Associate’s possession is part of the Advisor’s Designated Record Set.
2.3.7 Accounting of Disclosures of PHI: Upon the request of Advisor, Business Associate shall provide to Advisor an accounting of all disclosures of PHI in order for Advisor to comply with 45 C.F.R. §164.528, the HITECH Act and regulations promulgated thereunder. Business Associate shall provide the date of the disclosure, the name and, if known, the address of the recipient of the PHI, a brief description of the PHI disclosed, and the purpose of the disclosure. If an individual contacts Business Associate directly for such an accounting, Business Associate shall direct the individual to contact the Advisor.
2.3.8 Audits and Inspections: Business Associate shall make its internal practices, books, and records relating to the use and disclosure of PHI, as defined under this Agreement, available to the Secretary of the United States Department of Health and Human Services (“Secretary”), or the Secretary’s designee, for purposes of determining the Advisor’s and Business Associate’s compliance with the applicable laws and regulations. Business Associate shall make its internal practices, books, and records relating to the Use and Disclosure of PHI available to Advisor for purposes of determining Business Associate’s compliance with this Agreement.
2.3.9 Identity Theft Red Flags: To the extent Business Associate performs a service or activity on behalf of Advisor in connection with a covered account (as defined by 16 C.F.R. Part 681.1(b)(3)), Business Associate will perform the service or activity in accordance with reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft (as defined in 16 CFR 681.1).
2.3.10 Mitigation Procedures: Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI in violation of this Agreement.
2.3.11 Insurance: Business Associate shall obtain and maintain all proper and necessary insurance to protect the PHI pursuant to this Agreement in the minimum amounts necessary.
2.4 Legal Process: In the event that Business Associate is served with legal process (e.g. a subpoena) or request from a government agency (e.g. the Secretary) that potentially could require the disclosure of PHI, Business Associate shall provide prompt notice of such legal process to the President of Advisor. In addition, Business Associate shall not disclose the PHI without the express written consent of Advisor unless pursuant to a valid and specific court order or to comply with a request by a governmental regulatory agency under its statutory or regulatory authority.
2.5 Management and Administration. Business Associate and its respective agents, employees and subcontractors are authorized to use or disclose PHI for Business Associate’s own proper management and administration, and to fulfill any of Business Associate’s legal responsibilities; provided, however, that the disclosures are required by law or Business Associate has received from any third party recipient of PHI written assurances that (i) the PHI will be held confidentially and used or further disclosed only as required by law or for the purposes for which it was disclosed to the third party, and (ii) the third party will notify Business Associate of any instances of which the third party becomes aware that the confidentiality of the PHI has been breached.
2.6 Obligations of Advisor.
2.6.1 Authorizations: Advisor shall obtain from organizations any applicable consents, authorizations and other permissions necessary or required by law for Advisor and Business Associate to fulfill their obligations under this Agreement. Advisor shall not require Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA.
2.6.2 Restrictions: Advisor shall promptly notify Business Associate in writing of any restrictions in the use or disclosure of PHI about individuals that Advisor has agreed to that may affect Business Associate’s ability to perform its obligations under this Agreement, such as in a change of its privacy policy.
2.6.3 Revocations: Advisor shall promptly notify Business Associate in writing of any changes in, or revocation of, permission by an Individual or organization relating to the use or disclosure of PHI, if such changes or revocation may affect Business Associate’s ability to perform its obligations under this Agreement.
2.7 Termination.
2.7.1 Breach: Without limiting the rights of the parties under this Agreement, if either party breaches its obligations under this Agreement, the non-breaching party may provide the breaching party an opportunity to cure the breach within thirty (30) days. If such cure is not possible within thirty (30) days, the non-breaching party may terminate this Agreement immediately thereafter. If such termination is not feasible, the non-breaching party shall report this breach to the Secretary.
2.7.2 Automatic Termination: This Agreement shall automatically terminate upon the mutual agreement of the parties.
2.7.3 Procedure upon Termination: At the termination of this Agreement, Innovu shall destroy (and/or return upon request) any PHI provided to Business Associate from Advisor. Business Associate will only return PHI to Advisor in a secure manner and with a HIPAA compliant method. However, Business Associate may retain a reasonable number of archival copies. This section shall survive any expiration of this Agreement.
2.8 Amendment. The parties agree to take such action as is necessary to amend this Agreement for Advisor to comply with HIPAA or other applicable law. The parties agree that this Agreement may only be modified by mutual written amendment, signed by both parties, effective on the date set forth in the amendment.
2.9 Third Party Claims. Each party (“Defending Party”) will defend, at its sole expense, the other party and its officers, directors, members, attorneys, agents and employees (collectively the “Protected Party”) against claims by third parties (including claims by law enforcement entities) arising from or related to any breach by the Defending Party of its obligations under this Agreement with respect to PHI (“PHI Claim(s)”). The Defending Party will pay damages finally awarded against the Protected Party (or the amount of any settlement entered into by the Defending Party), any governmental fines and penalties, and reasonable attorney’s fees, and expenses in connection with such defense, up to an aggregate maximum of five-million U.S. dollars ($5,000,000). The obligations of the Defending Party described in this section are conditioned on: (a) Protected Party providing timely notice to the Defending Party of any PHI Claim; (b) Defending Party have all necessary rights to fully control the defense of the PHI Claim; and, (c) the Protected Party providing reasonable cooperation to the Defending Party in the defense of such PHI Claim. The Defending Party may enter into any settlement of a PHI Claim provided that such settlement does not: (i) contain any admission of liability on the part of the Protected Party; (ii) require any specific performance by the Protected Party (other than compliance with applicable law and this Agreement); and, (iii) does not require any payment obligation on the part of the Protected Party. This section states the sole, exclusive, and entire liability of each party in relation to a PHI Claim. This provision shall survive the termination or expiration of this Agreement.
2.10 Limitation of Liability. Except for any damages or costs due to a party for a cause in the Third Party Claims Section 2.9 in this Business Associate Agreement up to the maximum set forth therein, neither party shall be liable for any damages arising from or in connection with a breach of a party’s other obligations in this Business Associate Agreement in excess of a maximum aggregate of one-million U.S. dollars ($1,000,000).
NEITHER ADVISOR NOR INNOVU SHALL BE LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, IRRESPECTIVE OF THE CAUSE OR CAUSES, INCLUDING STRICT LIABILITY, BREACH OF WARRANTY OR NEGLIGENCE OF ANY PARTY.
2.11 No Third Party Beneficiaries. Unless otherwise set forth herein, nothing contained herein is intended nor shall be construed to create rights running to the benefit of third parties.
2.12 Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking or condition of this Agreement shall not be deemed to be a waiver of such term, undertaking or condition. To be effective, a waiver must be in writing, signed and dated by the parties to this Agreement.
2.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall be deemed one and the same instrument. Any photocopy of this executed Agreement may be used as if it were the original.
2.14 Governing Law. This Agreement has been executed in the Commonwealth of Pennsylvania and shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any conflict of the law’s provisions.
© 2025 innovu, LLC
Template Version 1.0 | Image Licensing | Made By Deni Bozo
