TERMS OF USE BY REGISTERED USERS

Symphony Performance Health, Inc., d/b/a SPH Analytics and its wholly-owned subsidiaries, including MDdatacor, LLC (also referred to herein as “SPH”, “we”, “us”, or “our”) is an information technology company that provides data analytic and support services to healthcare providers, other healthcare organizations, health plans, and business associates of such entities (referred to as “Healthcare Organization(s)“) for the purposes of facilitating healthcare operations, electronic exchange of health information, pay for performance programs, clinical trial participation eligibility review, referral management, and patient satisfaction evaluation. SPH provides such
services via various secure, proprietary software and hardware platforms and/or network systems owned or operated by, or on behalf of, SPH and pursuant to the specific parameters of various proprietary programs developed by SPH from time to time (“SPH Solutions“).

By accessing any one or more SPH Solutions via one of SPH’s restricted portals you (“you”, “your” or “user”) are doing so as a “Registered User” who has been assigned specific login information (such as user name and password) to access and avail yourself of the SPH Solutions . As a Registered User you are required to accept the terms and conditions of use set forth in this agreement (referred to as the “Terms of Use“) before being allowed to proceed further. The term “Registered User” includes not only the individual person to whom login information has been provided by SPH, but also the Healthcare Organization that has entered into an agreement with SPH to participate and avail itself of SPH Solutions.


TERMS AND CONDITIONS:


1. Security of Password and Logon Information.

You are responsible for ensuring the privacy and security of any user name or passwords assigned to you as a Registered User. Your assigned user name and password should not be shared with or utilized by any other person, even those within your organization.

2. Security and Safety of Equipment and Software.
You are responsible for the security of any and all hardware, software, and other equipment that you may utilize for the purpose of accessing SPH Solutions. You agree to use reasonable efforts to ensure that connection to and use of SPH Solutions, including without limitation the medium containing any data or other information provided to SPH, does not include, and that any method of transmitting such data will not introduce, any program, routine, information, or data (including without limitation, malicious software or “malware,” viruses, worms and Trojan Horses) that will disrupt the proper operation of any SPH Solution or any part thereof, or any hardware or software used by SPH in connection therewith, or which may cause any SPH Solution to be destroyed, damaged, or rendered inoperable.

3. Right to Access and Use.
Subject to the terms, conditions and limitations set forth in the Terms of Use, SPH grants to you a limited, non-exclusive, non-transferable, and world-wide right to access and use certain SPH Solutions to which you have been given access as a Registered User during the Term via a web browser over the Internet for the sole purpose of submitting, accessing, reviewing, and utilizing the data and various reports and other compiled analytics available as part of the SPH Solutions made available to your organization.

You agree not to remove any proprietary notices of SPH or third parties found in or on any SPH Solution. The SPH software in object code and source code form, and all rights in the SPH Solutions, including without limitation, the intellectual property rights therein, are and will remain the exclusive property of SPH. You acknowledge and agree that you have no claim of ownership in the SPH Solutions, including without limitation, software, portals, data, and any direct or indirectly related intellectual property rights therein. No rights other than those specifically stated herein are granted to you, and you will have no right to sublicense any SPH Solution.

4. Ownership of Databases.
SPH software, our database methodology, all derivative works thereof, the database of analytic reports, the de-identified patient information, and customer information located on our server and network (other than Protected Health Information, as defined by the HIPAA Privacy and Security Standards) as part of SPH Solutions, SPH Solutions, and our business operations and all intellectual property rights therein, shall be the sole and exclusive property of SPH and shall not, in whole or in part, be considered the proprietary information of any other person or entity.

5. Reports.
You and/or any Healthcare Organization is solely responsible for validating the accuracy of all any and all reports or other output (the “SPH Solution Output”) that you may request to be prepared by SPH as part of the SPH Solutions to be rendered to your Healthcare Organization. SPH shall not have any responsibility for maintaining or retaining copies of the SPH Solution Output that are generated for you and/or any Healthcare Organization.

6. Use of Organization Names, Logos, and Trademarks.
To the extent that the Registered User accepting the Terms of Use is a Healthcare Organization, such organization acknowledges and agrees that SPH shall have the right to use the name of the Healthcare Organization, including without limitation, its logos and trademarks, as necessary, to carry out the terms of SPH’s agreement with the Healthcare Organization and/or any health plan or other entity with which SPH has contracted to provide certain SPH Solutions, or for the purposes of publication or reporting of any results, reports or aggregate data arising from one or more SPH Solution.

7. Fees.
SPH maintains a fee schedule for each of its SPH Solutions and such fees are negotiated with the customers sponsoring quality programs or with Healthcare Organizations directly on a case-by-case basis. SPH also maintains a fee schedule for the preparation of reports from SPH Solutions. The reports fee schedule is readily available by contacting SPH. Healthcare Organizations may participate in sponsored programs wherein the fee for SPH’s services is remitted by the sponsoring entity or a Healthcare Organization may be responsible for the costs associated with the generation of specific customized reports or data aggregation services that are not part of a sponsored program. In the event a Healthcare Organization is obligated to remit payment for such reports, it shall receive prior notice of the associated cost and an invoice shall be submitted directly to the Healthcare Organization by SPH. Any and all fee increases shall be provided in writing to Healthcare Organization at least thirty (30) days prior to the effective date of the updated fee schedule. The Healthcare Organization shall be responsible for remitting payment to SPH within thirty (30) days upon receipt of an invoice. In the event the Healthcare Organization fails to remit payment in a timely manner for two consecutive months, SPH reserves the right to terminate the Healthcare Organization’s access immediately.

8. Term.
The term of this agreement shall commence upon your acceptance of the Terms of Use and shall continue in full force and effect until such time as your access to the SPH Solutions is terminated for any reason.

9. Effect of Termination.
Upon your termination of access or participation for any reason you (and all Registered Users within your company if you are a Healthcare Organization) shall have no further rights to use or access any SPH Solution. It shall be the duty and responsibility of the Healthcare Organization to ensure that all Registered Users cease utilization of SPH Solutions and proprietary products and programs.

10. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING IN THE TERMS AND CONDITIONS TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE AGGREGATE LIABILITY OF SPH OFFICERS, DIRECTORS, EMPLOYEES, AND OTHER AGENTS, UNDER ANY HEALTHCARE ORGANIZATION OR HEALTHCARE ORGANIZATION’S PARTICIPATION IN A SPH PROGRAM OR ACCESS AND USE OF A SPH SOLUTION, REGARDLESS OF THEORY OF LIABILITY SHALL BE LIMITED TO THE AGGREGATE FEES PAID BY SUCH HEALTHCARE ORGANIZATION TO SPH FOR THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

IN NO EVENT WILL SPH, ITS AFFILIATES, LICENSORS, OR SUPPLIERS, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO YOU, ANY HEALTHCARE ORGANIZATION, OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY RELATING TO SPH SOLUTIONS OR PROGRAMS OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SPH SOLUTIONS, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF YOU OR THE HEALTHCARE ORGANIZATION HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE.

11. Carrier Lines.
By availing yourself of SPH Solutions, you acknowledge that online access to such services will be provided over various facilities and communication lines, and information will be transmitted over local exchange and Internet backbone carrier lines and through routers, switches, and other devices (collectively, “Carrier Lines”) owned, maintained, and serviced by third-party carriers, utilities, and Internet service providers, all of which are beyond our control. SPH assumes no liability for or relating to the integrity, privacy, security, confidentiality, or use of any information while it is transmitted on the carrier lines, or any delay, failure, interruption, interception, loss, transmission, or corruption of any data or other information attributable to transmission on the Carrier Lines. Use of the Carrier Lines is solely at user’s risk and is subject to all applicable local, state, national, and international laws.

12. No Warranties.
Access to and use of SPH Solutions and the information obtained pursuant to the use of those services, including without limitation, SPH Solution Output, are provided “AS IS” and “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, expressed or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for any and all acts or omissions taken or made in reliance on SPH Solutions or the information in SPH Solutions, including inaccurate or incomplete information. It is expressly agreed that in no event shall SPH be liable for any special, indirect, consequential, or exemplary damages, including but not limited to, loss of profits or revenues, loss of use, or loss of information or data, whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theories of liability, even if SPH has been apprised of the possibility or likelihood of such damages occurring. SPH disclaims any and all liability for erroneous transmissions and loss of service resulting from communication failures by telecommunication service providers.

13. Other Providers.
By using SPH Solutions each user acknowledges that other healthcare providers have access to SPH Solutions and access to the information contained therein. Such other healthcare providers have agreed to comply with the SPH policies and procedures, concerning use of the information, however, the actions of such other parties are beyond our control. Accordingly, SPH does not assume any liability for or relating to any impairment of the privacy, security, confidentiality, integrity, availability, or restricted use of any information within the SPH System resulting from any providers’ inappropriate actions or failure to act.

14. Unauthorized Access; Lost or Corrupt Data.
SPH utilizes reasonable administrative, physical, and technical safeguards for its hardware and programs. SPH is not responsible for unauthorized access to your transmission facilities or equipment by individuals or entities using SPH Solutions or for unauthorized access to, or alteration, theft, or destruction of your data files, programs, procedures, or information through SPH Solutions, whether by accident, fraudulent means or devices, or any other method. You are solely responsible for validating the accuracy of all output and reports and protecting your data and programs from loss by implementing appropriate security measures, including routine backup procedures. You waive any damages occasioned by lost or corrupt data, incorrect reports or other SPH Solution Output, or incorrect data files resulting from programming error, operator error, equipment or software malfunction, security violations, or the use of third-party software. SPH is not responsible for the content of any information transmitted or received through our provision of SPH Solutions.

15. Inaccurate Data.
All data to which access is made through SPH Solutions originates from providers and other parties making data available to SPH pursuant to the terms of the various SPH Solutions in which they are participating. All such data is subject to change arising from numerous factors, including without limitation, changes to patient health information made at the request of the patient, changes in a patient’s health condition, the passage of time and other factors. SPH neither initiates the transmission of any data nor monitors the specific content of data being transmitted. Without limiting any other provision of the terms and conditions, SPH shall have no responsibility for or liability related to the accuracy, content, currency, completeness, content, or delivery of any data that you may access or utilize via the SPH Solutions, whether such data was provided or used by you or another healthcare organization. You shall not have any recourse against, and shall waive any claims against, SPH for any loss, damage, claim, or cost relating to or resulting from your own use or misuse of the SPH Solutions or the data made available thereby.

16. Patient Care.
Without limiting any other provision of the terms and conditions, you shall be solely responsible for all decisions and actions taken or not taken involving patient care, utilization management, and quality management for your respective patients and clients resulting from or in any way related to the use of any SPH Solutions or the data made available thereby. You should not utilize the patient information contained in any SPH Solution as the complete medical record upon which a medical decision is solely based upon. THE DATA EXCHANGE BETWEEN SPH AND YOU OR YOUR HEALTHCARE ORGANIZATION, INCLUDING, BUT NOT LIMITED TO, ANY SPONSOR OR CUSTOM REPORTS OR OTHER SPH SOLUTION OUTPUT ARE NOT INTENDED TO PROVIDE YOU, YOUR HEALTHCARE ORGANIZATION NOR ANY PROVIDER PERSONNEL OR PATIENTS OF YOURS OR YOUR HEALTHCARE ORGANIZATION WITH MEDICAL ADVICE AND SHOULD NOT BE USED FOR SUCH PURPOSES. INFORMATION CONTAINED IN ANY REPORT OR SPH SOLUTION IS NOT INTENDED AS AN ENDORSEMENT OF ANY PRODUCT, SERVICE, OR CLINICAL TRIAL. ALL MEDICAL DECISIONS SHOULD BE MADE BY THE PROVIDER OR OTHER LICENSED HEALTHCARE PERSONNEL BASED UPON THEIR INDEPENDENT PROFESSIONAL JUDGMENT.

17. Medical Record.
The SPH Solutions are not and shall not be utilized as a substitute for any original source medical record. The information created and maintained by SPH in SPH Solutions is not intended to be utilized as an original source medical record and therefore, it is not an electronic medical record or medical record of any sort, and SPH shall not be responsible for any person or entity’s obligations to maintain patient medical records and clinical information. SPH shall not have any responsibilities with regard to medical record retention or maintenance of medical records as required by applicable state and federal laws as applied to healthcare providers or third-parties. You should not utilize the patient information contained in any SPH Solution as the complete medical record upon which a medical decision is solely based upon.

18. Miscellaneous Provisions.

a. Notices.
All notices or other communications sent regarding the Terms of Use shall be in writing and shall be effective upon the earlier of actual receipt, the fifth (5th) business day following deposit into mail (registered or certified), the next business day following deposit with a nationally recognized overnight courier service, and the same day following transmission via facsimile or electronic mail. Notices shall be sent to SPH at the physical address listed on SPH’s main website, www.symphonyph.com, or via electronic mail to legal@symphonyph.com, and to any Healthcare Organization at the address submitted to SPH. The parties may change their respective address upon notice in conformance with this Section18.a.

b. Binding Agreement.
The Terms of Use shall be binding upon, and shall inure to the benefit of the parties to it and their respective legal representatives, successors and assigns.

c. Entire Agreement.
The Terms of Use constitutes the entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties with respect to the subject matter herein. No supplement, amendment, or modification of the Terms of Use shall be binding unless executed in writing by all of the parties.

d. Governing Law/Venue.
The Terms of Use shall be interpreted pursuant to the laws of the State of Georgia without giving effect to conflict of laws principles. The parties agree that Fulton County, Georgia and the federal and state courts located therein shall be the exclusive venue for any action arising out of or relating to the Terms of Use and each party agrees to the personal jurisdiction of such courts.

e. Waiver.
No waiver of any provisions of the Terms of Use shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.

f. Subject Headings.
The subject headings herein are for convenience only, and shall not affect the construction or interpretation of any of the provisions of the Terms of Use.

g. Attorneys’ Fees.
In the event any attorney is employed by either party to the Terms of Use with regard to any legal action, arbitration or other proceeding brought by either party for the enforcement of the Terms of Use, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of the Terms of Use, then the prevailing party, whether at arbitration, trial or upon appeal, shall be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled.

h. Invalidity or Unenforceability.
The invalidity of any terms or provisions hereof shall in no way affect the validity or enforceability or any other term or provision of these Terms of Use.

i. Third-Party Beneficiaries.
The Terms of Use are entered into by and between the parties executing it and for their benefit. There is no intent by either party to create or to establish third party beneficiary status or rights or their equivalent in any subcontractor or other party which may be affected by the operation of this agreement, and no such third party shall have any right to enforce or enjoy any benefit created or established hereunder.

j. Ratification of Business Associate Agreement.
If you are a principle or officer of your Healthcare Organization, you hereby acknowledge and ratify the execution of the Business Associate Agreement that has been executed on behalf of your Organization as part of the initial SPH registration process.

k. Electronic and Hard Copies of Agreement.
In order to access and retain the information contained in the Terms of Use electronically, you or your Healthcare Organization will need Microsoft Internet Explorer version 7.0 and Adobe Acrobat Reader version 9, or such other version as may become available and be adopted for use by SPH, from time to time. Please print a copy of the Terms of Use for your records, or you may contact us to request a copy in a non-electronic format by submitting a written request via electronic mail to:
legal@symphonyph.com.

l. Withdrawal of Consent.
By submitting the information, registering to access SPH Solutions as a registered user and clicking the “I Agree” button below, you are agreeing to the all of the terms of the Terms and certify that the information provided is accurate and complete and agree to transact business electronically with SPH with respect to the items and services available via SPH Solutions. If at any time you no longer wishes to access or to benefit from SPH Solutions, then you shall stop using your passwords and login information. If you notify us that you will no longer agree to transact business in accordance with the terms of the Terms of Use, or if you violate the terms set forth herein, then we may terminate your access to SPH Solutions without prior notice.