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“).
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.
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.
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.
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.
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.
b. Binding Agreement.
c. Entire Agreement.
d. Governing Law/Venue.
binding unless executed in writing by the party making the waiver.
f. Subject Headings.
g. Attorneys’ Fees.
h. Invalidity or Unenforceability.
i. Third-Party Beneficiaries.
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.
l. Withdrawal of Consent.