This Agreement (“Agreement”) is hereby entered into by and between OmniPACS Inc., together with its affiliates (“OmniPACS”), and with you as “Customer”. The terms: (i) “we”, “us”, “Business Associate”, “Vendor,” or “our” shall also refer to OmniPACS and “Covered Entity”, “you”, or “your” referring to the individual or entity, as applicable, that is the Customer of record.

WHEREAS, Business Associate is in the business of providing the Medical Imaging Storage and Collaboration System (the “Offering”) through www.omnipacs.com (the “Site”); and

WHEREAS, Covered Entity wishes to engage, or has engaged, Business Associate in connection with said Offering.

NOW, THEREFORE, in consideration of the mutual promises herein contained, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, it is agreed as follows:

 

DEFINITIONS

 

Terms used, but not otherwise defined in this Agreement, shall have meanings set forth in the Privacy Rule, Security Rule, and/or HITECH Act, as applicable.
1. “Breach” shall have the same meaning as the term “breach” in 45 CFR §164.402.
2. “Data Aggregation” shall have the same meaning as the term “data aggregation” in 45 CFR §164.501.
3. “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 CFR §164.501.
4. “Electronic Health Record” shall have the same meaning as the term “electronic health record” in Section 13400 of the HITECH Act.
5. “Health Care Operations” shall have the same meaning as the term “health care operations” in 45 CFR §164.501.
6. “HITECH Act” shall mean The Health Information Technology for Economic and Clinical Health Act, which is part of the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Stimulus Package”), and its corresponding regulations as enacted under the authority of the HITECH Act.
7. “Individual” shall have the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
8. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
9. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR §160.103, but shall be limited to the information created, received, maintained or transmitted by Business Associate on behalf of Covered Entity.
10. “Required By Law” shall have the same meaning as the term “required by law” in 45 CFR §164.103.
11. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.
12. “Security Rule” shall mean the Standards for Security of Electronic Protected Health Information at 45 C.F.R. parts §160 and §164, Subparts A and C.
13. “Subject Matter” shall mean compliance with the Privacy Rule and the Security Rule, and the HITECH Act, as applicable,
14. “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” in 45 CFR §164.402.
15. A “Study” is defined as any single data set containing the same “Study Instance UID” DICOM field.

 

OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

 

1. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
2. Business Associate agrees to use commercially reasonable safeguards in compliance with all applicable laws to prevent the use or disclosure of Protected Health Information other than as provided for by this Agreement or as Required By Law. Business Associate further agrees to implement administrative, physical and technical safeguards that to protect the confidentiality, integrity and availability of any electronic Protected Health Information, as provided for in the Security Rule and as mandated by Section 13401 of the HITECH Act.
3. Business Associate agrees to report to Covered Entity any use or disclosure of Protected Health Information not provided for by this Agreement of which it becomes aware, and in a manner as prescribed herein.
4. Business Associate agrees to report to Covered Entity any security incident, including all data Breaches or compromises, whether internal or external, related to Protected Health Information, whether the Protected Health Information is secured or unsecured, of which Business Associate becomes aware. .If the Breach, pertains to Unsecured Protected Health Information, then Business Associate agrees to report any such Breach to Covered Entity within ten (10) business days of discovery of said Breach; all other compromises, or attempted compromises, of Protected Health Information shall be reported to Covered Entity with twenty (20) business days of discovery. Business Associate further agrees, consistent with Section 13402 of the HITECH Act, to provide Covered Entity with information necessary for Covered Entity to meet the requirements of said section, and in a manner and format to be specified by Covered Entity.
5. If Business Associate is an Agent of Covered Entity, then Business Associate agrees that any Breach of Unsecured Protected Health Information shall be reported to Covered Entity immediately after the Business Associate becomes aware of said Breach, and under no circumstances later than one (1) business day after Business Associate becomes aware of said Breach. Business Associate further agrees that if Business Associate is an Agent of Covered Entity, then any compromise, or attempted compromise, of Protected Health Information, other than a Breach of Unsecured Protected Health Information as specified immediately above, shall be reported to Covered Entity within ten (10) business days of discovering said compromise, or attempted compromise.
6. Business Associate agrees to ensure that any Agent, including a subcontractor, to whom Business Associate provides Protected Health Information of a Covered Entity, agrees to be bound by the terms and conditions of this Agreement applicable to Business Associate with respect to such information via a written agreement, and Business Associate shall only provide said Agents and/or subcontractors Protected Health Information consistent with Section 13405(b) of the HITECH Act. Further, Business Associate agrees to provide copies of said written agreements to Covered Entity within ten (10) business days of a Covered Entity’s request for same.
7. Business Associate agrees to provide reasonable access, at the request and expense of Covered Entity and during normal business hours, to Protected Health Information in a Designated Record Set to Covered Entity or, as directed by Covered Entity, to an Individual, in order to meet Covered Entity’s requirements under 45 CFR §164.524, provided that Covered Entity delivers to Business Associate a written notice at least three (3) business days in advance of requesting such access. Business Associate further agrees, in the case where Business Associate controls access to Protected Health Information in an Electronic Health Record, to provide similar access in order for Covered Entity to meet its requirements under Section 13405(c) of the HITECH Act. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that Covered Entity directs to pursuant to 45 CFR §164.526, at the request and expense of Covered Entity or an Individual. These provisions do not apply if Business Associate and its employees, subcontractors and Agents have no Protected Health Information in a Designated Record Set of Covered Entity.
9. Upon the request of the Secretary or a Covered Entity, unless otherwise protected or prohibited from discovery or disclosure by law, Business Associate agrees to make internal practices, books, and records, including policies and procedures (collectively “Compliance Information”), relating to the use or disclosure of Protected Health Information, reasonably available to the Covered Entity and/or to the Secretary for the sole purpose of the Secretary determining Covered Entity’s compliance with the Privacy Rule, Security Rule, and/or the HITECH Act. Business Associate further agrees, at the request and expense of Covered Entity, to provide Covered Entity with reasonably demonstrable evidence that its Compliance Information is consistent with Business Associate’s compliance obligations under this Agreement. Business Associate shall have a reasonable amount of time to comply with such requests for such access and/or evidence. In no case shall any such access or evidence be required in less than five (5) business days after Business Associate’s receipt of such request, unless otherwise designated by the Secretary.
10. Business Associate agrees to maintain necessary and sufficient documentation of disclosures of Protected Health Information as would be required for Covered Entity to respond to a request by an Individual for an accounting of such disclosures, in accordance with 45 CFR §164.528.
11. On request of Covered Entity, Business Associate agrees to provide to Covered Entity documentation made in accordance with this Agreement to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R.§164.528. Business Associate shall provide said documentation in a manner and format to be reasonably specified by Covered Entity. Business Associate shall have a reasonable amount of time to comply with such a request from Covered Entity and in no case shall Business Associate be required to provide such documentation in less than three (3) business days after Business Associate’s receipt of such request.
12. Except as may be expressly provided for in this Agreement, in the event Business Associate receives an access, amendment, accounting of disclosure, or other similar request directly from an Individual, Business Associate shall redirect the Individual to the Covered Entity.

13. Subject to Section 5 of the section entitled “Term and Termination,” Business Associate shall maintain all data provided to it by Customer and provide adequate backup copies of of such data in accordance with its policies and procedures and, subject to the terms of this Agreement, Business Associate shall provide such data to Customer or third parties requested in writing by Customer so long as such disclosure is not prohibited by any applicable law (as determined by Business Associate in its sole discretion). Business Associate shall maintain such records for seven years; provided, however, that Business Associate shall not be liable to customer if such data or records are destroyed or lost through no fault of Business Associate which shall included, without limitation, if such data is lost due to a virus, worm, malicious code or other disabling device from any third party source.  Business Associate will maintain hard copies of all information provided to it from Customer for a period of seven years at two distinct geographical distribution locations which shall be at least 2,000 miles from each other.

 

PERMITTED USES OF DISCLOSURES BY BUSINESS ASSOCIATE

 

1. Except as otherwise expressly limited by this Agreement, Business Associate may make any uses and disclosures of Protected Health Information necessary to perform its services to Covered Entity and otherwise meet its obligations under this Agreement, if such use or disclosure would not violate the Privacy Rule, or the privacy provisions of the HITECH Act, if done by Covered Entity. All other uses or disclosures by Business Associate not authorized by this Agreement or by the specific instruction of Covered Entity are prohibited.
2. Except as otherwise expressly limited by this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate, provided that disclosures are Required

 

By Law or otherwise permitted by applicable law.

 

3. Except as otherwise expressly limited by this Agreement, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 CFR §164.504(e)(2)(i)(B). The parties acknowledge and agree that any such Data Aggregation services must pertain to Health Care Operations. Business Associate further agrees that said services shall not be provided in a manner that would result in disclosure of Protected Health Information to another covered entity and/or any other person or entity who was not the originator and/or lawful possessor of said Protected Health Information, unless such disclosure is permitted hereunder or by applicable law. Notwithstanding the foregoing, Business Associate agrees that any such disclosure of Protected Health Information shall be reported to Covered Entity immediately after the Business Associate becomes aware of said disclosure (and, under no circumstances, later than three (3) business days after the Business Associate becomes aware of said disclosure).
4. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State governmental authorities, consistent with §164.502(j)(1) of the Health Insurance Portability Act of 1996.

 

OBLIGATIONS AND ACTIVITIES OF COVERED ENTITY

 

1. Covered Entity shall notify Business Associate of the provisions and any limitation(s) in its privacy practices in accordance with 45 CFR §164.520, to the extent that such provisions and limitation(s) may affect Business Associate’s use or disclosure of Protected Health Information.
2. Covered Entity shall immediately notify Business Associate of any changes in, or revocation of, permission by an individual to use or disclose Protected Health Information, to the extent that the changes or revocation may affect Business Associate’s use or disclosure of Protected Health Information.
3. Covered Entity shall immediately notify Business Associate of any restriction of the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR §164.522, and shall also immediately notify Business Associate regarding restrictions that must be honored under section 13405(a) of the HITECH Act, to the extent that such restrictions may affect Business Associate’s use or disclosure of Protected Health Information.
4. Covered Entity shall immediately notify Business Associate of any modifications to accounting disclosures of Protected Health Information under 45 CFR §164.528, made applicable under Section 13405(c) of the HITECH Act, to the extent that such restrictions may affect Business Associate’s use or disclosure of Protected Health Information.
5. Covered Entity shall provide Business Associate, within twenty (20) calendar days of Covered Entity’s acceptance of this Agreement, a description and/or specification regarding the manner and format in which Business Associate shall provide information to Covered Entity and thereafter Business Associate shall use its best efforts to provide any information to the Covered Entity in such format. Covered Entity reserves the right to modify the manner and format in which said information is provided to Covered Entity, as long as the requested modification is reasonably required for Covered Entity to remain compliant with the Privacy Rule or the HITECH Act, and Business Associate is provided no less than sixty (60) calendar days notice before the requested modification takes effect.

 

TERM AND TERMINATION

 

1. Term. The Term of this Agreement shall be effective as of the date of Covered Entity’s acceptance by clicking on the “I accept” below and shall terminate upon the earlier of the written notice by any one party to the other party or when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, when protections are extended to such information in accordance with paragraph 4(B) below.
2. Termination for Cause by Covered Entity. Upon Covered Entity’s knowledge of a material breach of this Agreement by Business Associate, Covered Entity shall give Business Associate written notice of such breach and provide reasonable opportunity for Business Associate to cure the applicable breach. If Business Associate does not cure such breach within a reasonable time period, or if curing such breach is not possible, Covered Entity may terminate this Agreement
3. Termination for Cause by Business Associate. Upon Business Associate’s knowledge of a material breach of this Agreement by Covered Entity, Business Associate shall give Covered Entity written notice of such breach and provide reasonable opportunity for Covered Entity to cure the applicable breach. If Covered Entity does not cure such breach within a reasonable time period, or if curing such breach is not possible, Business Associate may terminate this Agreement.
4. We reserve the right to suspend or terminate your access to the Site at any time if we determine that you are in breach of this Agreement including without limitation, the failure to pay any fees owed to OmniPACS in accordance with this Agreement (including any other document incorporated by reference therein).
5. Effect of Termination.
A. Except as provided in paragraph (B) below, upon termination of this Agreement for any reason, Business Associate shall return or destroy all Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity, unless Business Associate is required by applicable law to maintain copies of such Protected Health Information. Business Associate shall also use commercially reasonable efforts in accordance with all applicable laws to cause any Protected Health Information that is in the possession of Business Associate’s subcontractors or Agents to be so returned or destroyed. Business Associate shall retain no copies of the Protected Health Information, other than any archival copies that Business Associate may be required or permitted to retain pursuant to applicable law.
B. In the event that Business Associate determines that returning or destroying the Protected Health Information is contrary to any applicable law or infeasible in its sole and absolute discretion, Business Associate shall provide to Covered Entity, within ten (10) business days, notification of the conditions that make return or destruction infeasible or contrary to applicable law. All of the protections set forth in this Agreement regarding Protected Health Information generally shall continue to apply to such Protected Health Information from and after the termination of this Agreement for so long as Business Associate maintains such Protected Health Information.

 

LICENSE AND RESTRICTIONS

 

1. License. Subject to the terms of this Agreement, during the term hereof, and provided you have timely paid and continue to timely pay all amounts due hereunder, Vendor hereby grants you a limited, exclusive, non-transferable, limited, revocable license (i) to use the Site and (ii) to download (to the extent applicable), install and use the OmniPACS software on your computer system, for the sole purposes as expressly permitted by this Agreement. You are allowed to use the OmniPACS software only in accordance with this Agreement and any applicable additional terms and conditions or legal requirements. You may not sell, lease, sub-license, transfer or assign any of the OmniPACS software or your rights to any of the services to any third party without our express written authorization; provided however that notwithstanding anything to the contrary herein, if you are an entity you may install and use the OmniPACS software on more than one computer system within your network and the rights granted hereunder shall apply to your employees who have a need to access the software and the services.
2. Exclusive Ownership. Any and all intellectual property (IP) rights in the OmniPACS software, the Site, and/or any OmniPACS online materials and promotional materials are and shall remain the exclusive property of OmniPACS and/or its licensors, as applicable. Other than the limited license provided for herein, nothing in this Agreement intends to transfer any such IP rights to, or to vest any such IP rights in, you. You are only entitled to the limited use of the IP rights granted to you in this Agreement. You will not take any action to jeopardize, limit or interfere with OmniPACS’ IP rights. Any unauthorized use of OmniPACS’ IP rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws. Nothing in this Agreement will give you any right to use any OmniPACS promotional materials.
3. No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the OmniPACS software or any part thereof except to the extent permitted by law.
4. No Removal of Notices. You agree that you will not remove, obscure, make illegible or alter any notices or indications of the IP rights and/or OmniPACS’ rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
5. Survival. This section entitled “License and Restrictions” shall survive any termination of this Agreement.

 

BILLING AND PAYMENT

 

OmniPACS subscriptions are provided free of charge and “as is”. Unless otherwise set forth in an Amendment to this Agreement, all Studies will be assessed for billing – according to the number of Studies sent to the system. Billing is on a transactional basis and charges are invoiced monthly with no pro ration of such charges if a service-plan is elected and terminated on any day other than the last day of your billing cycle. Monthly service and certain other charges are billed in arrears if you are an existing customer of OmniPACS and maintain uninterrupted service on select OmniPACS rate plans; provided, in either case, that you agree to pay for data transmission services sent to and from your equipment. MEASURED USAGE IS BILLED IN FULL AS “STUDY” TRANSMISSION INCREMENTS. Study costs are based on total transactions received from the beginning to the end of any calendar year. You are guaranteed a cost per study not exceed 2$.

If you select a rate plan that includes a predetermined allotment of services (for example, a predetermined amount of “Studies” or transmissions), unless otherwise specifically provided as a part of such rate plan, any unused allotment of services from one billing cycle will not carry over to any other billing cycle. We may bill you in a format as we determine from time to time. Additional charges may apply for additional copies of your bill, or for detailed information about your usage of services.

 

CHARGES AND DISPUTES

 

You are responsible for paying all charges for or resulting from services provided under this Agreement. You will receive monthly bills at the end of each month or promptly upon termination if this Agreement is terminated on any date prior to the end of the month. All bills are due in full as shown thereon and all such amounts must be paid within thirty (30) days of receipt of the bill. YOU MUST, WITHIN THIRTY (30) DAYS OF THE DATE OF THE BILL, NOTIFY US IN WRITING AT OMNIPACS, BILL DISPUTE, 205 10th Street, 6P, Jersey City, NJ 07302 (“OMNIPACS’S ADDRESS”) OF ANY DISPUTE YOU HAVE WITH RESPECT TO THE BILL, INCLUDING ANY CHARGES ON THE BILL AND ANY SERVICE WE PROVIDED FOR WHICH YOU WERE BILLED, OR YOU WILL HAVE WAIVED YOUR RIGHT TO DISPUTE THE BILL OR SUCH SERVICES AND TO BRING, OR PARTICIPATE IN, ANY LEGAL ACTION RAISING ANY SUCH DISPUTE. Charges shall include, without limitation, (i) recurring monthly service, activation, administrative, and late payment charges; (ii) regulatory cost recovery and other surcharges; (iii) optional feature charges; (iv) reactivation charges; and (v) applicable taxes and governmental fees, whether assessed directly upon you or upon OMNIPACS. To determine your primary place of use (“PPU”) and which jurisdiction’s taxes and assessments to collect, you are required to provide us with your residential (if you are an individual) or principal place of business (if you are an entity), as applicable.

 

DISHONORED CHECKS AND OTHER INSTRUMENTS

 

We will charge you the highest amount allowed by law for any check or other instrument (including credit card chargebacks) tendered by you and returned unpaid by a financial institution for any reason. You agree to reimburse us for the any and all expenses, fees and amounts incurred by us in collecting any fees from you, including, without limitation, collection agency and attorney’s fees.

 

CHANGES TO TERMS AND RATES

 

We may change any rates, fees, expenses, or charges at any time. We will provide you with notice of such changes (other than changes to governmental fees, proportional charges for governmental mandates, roaming rates or administrative charges) either in your monthly bill or separately. You understand and agree that State and Federal Universal Service fees and other governmentally imposed fees, whether or not assessed directly upon you, may be increased based upon the government’s or our calculations. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF WE INCREASE THE PRICE OF ANY OF THE SERVICES TO WHICH YOU SUBSCRIBE, BEYOND THE LIMITS SET FORTH IN YOUR RATE PLAN BROCHURE, WE WILL DISCLOSE THE CHANGE AT LEAST ONE BILLING CYCLE IN ADVANCE THROUGH A NOTICE WITH YOUR BILL AND YOU MAY TERMINATE THIS AGREEMENT WITHOUT PAYING AN EARLY TERMINATION FEE OR PAYING FOR ANY PROMOTIONAL ITEMS, PROVIDED YOUR NOTICE OF TERMINATION IS DELIVERED TO US WITHIN THIRTY (30) DAYS AFTER THE FIRST BILL REFLECTING THE CHANGE.

 

LATE PAYMENT CHARGES

 

You agree that for amounts not paid by the due date, OmniPACS may charge, and if charged you agree to pay, a late payment fee equal to the greater of 1.5% of the balance carried forward to the next bill or the maximum rate permitted by applicable law.

 

SERVICE LIMITATIONS; LIMITATION OF LIABILITY

 

VENDOR’S MAXIMUM LIABILITY TO CUSTOMER UNDER THIS AGREEMENT OR FROM USING THE SITE, FROM ANY AND ALL CAUSES OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT OR UNDER ANY STATUTE, INCLUDING NEGLIGENCE AND STRICT LIABILITY, WILL BE LIMITED IN ANY EVENT TO ACTUAL DIRECT DAMAGES TO THE EXTENT WHOLLY AND DIRECTLY CAUSED BY THE ACTS OR OMISSIONS OF VENDOR, SUBJECT TO A MAXIMUM DOLLAR AMOUNT OF THE AMOUNT ACTUALLY PAID TO VENDOR BY CUSTOMER UNDER THIS AGREEMENT FOR THE MOST RECENT TWELVE [12] MONTHS PRIOR TO THE CLAIM. IN NO EVENT WILL VENDOR BE LIABLE FOR ANY LOSS OF REVENUE, LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWSOEVER CAUSED, ON ANY THEORY OF LIABILITY AND REGARDLESS OF PRIOR NOTICE, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR GOODWILL, EVEN IF VENDOR HAS, OR SHOULD HAVE, ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, OF THE POSSIBILITY OF SUCH DAMAGES.
= WARRANTY DISCLAIMER = ALL SOFTWARE AND HARDWARE AND THE OMNIPACS INTERFACE ARE PROVIDED BY VENDOR TO CUSTOMER “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THIS LIMITATION OF WARRANTIES WAS A MATERIAL FACTOR IN THE ESTABLISHMENT OF THE FEES CHARGED PURSUANT TO THIS AGREEMENT.

 

AUTHORIZED ACCOUNT ACCESS

 

You authorize us to to make changes to your account, if requested by you or your Agents, including adding new services. Only you or a sufficiently-identified agent will have the ability to authorize additional access to the Medical Data available from your OmniPACS account. You are responsible for maintaining the confidentiality of your OmniPACS account information and password. You are responsible for all users of your account, whether or not authorized by you. If others use your password to utilize the account or post inappropriate material on the Site, you risk losing your access to the Site. You agree to notify OmniPACS immediately of any unauthorized use of your registration and password.

 

FORCE MAJEURE AND EXCUSABLE DELAYS

 

No delay or omission by either party to exercise any right or remedy under this Agreement will be construed as a waiver of such breach or of the ability to exercise any right or remedy granted hereunder. Neither party shall be responsible to the other for non-performance or delay in performance occasioned by causes beyond their respective reasonable controls, including, without limiting the generality of the foregoing, acts or omissions of the other party, acts of civil or military authority, strikes, lock-outs, embargoes, insurrections or Acts of God; provided that notwithstanding anything herein to the contrary, force majeure events shall not include any inability to make any payments that are due hereunder or to any third party. If any such delay occurs, any applicable time period for cure of any such breach shall be automatically extended for a period equal to the time lost, provided that the affected party makes reasonable efforts to correct the reason for such delay and gives to the other party prompt notice of any such delay.

 

APPLICABLE LAW AND FORUM

 

A. This Agreement will be governed by, and construed in accordance with the laws of the state of New Jersey without resort to conflict of law principles.
B. The parties irrevocably and unconditionally agree that any suit, action or other legal proceeding arising out of this Agreement or the services or software provided by Vendor may be brought in the state and federal courts of record in the State of New Jersey. Each party consents to personal jurisdiction in each such courts in any such suit, action or proceeding and waives any objection concerning venue with respect to any suit, action or proceeding in any of such courts. EACH OF VENDOR AND CUSTOMER HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE SERVICES OR SOFTWARE PROVIDED BY THE VENDOR OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. VENDOR AND CUSTOMER ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

 

SEVERABILITY

 

In the event any provision of this Agreement is held to be illegal or unenforceable, such provision shall, if possible, be interpreted so as to be construed as valid, but in any event the remainder of this Agreement will continue in full force and effect. If a provision is held to be illegal or unenforceable, the parties agree to negotiate, in good faith, a legal and enforceable substitute provision which most nearly reflects the parties’ intent in entering into this Agreement. This Agreement shall bind the parties hereto, together with their respective affiliates, and shall inure to the benefit of the parties hereto and their respective permitted successors, assigns, affiliates, subsidiaries, trustees and parent companies.

 

ASSIGNMENT

 

You may not assign any of your rights or delegate any of your performance obligations under this Agreement without our prior written approval.

 

LIMITATION OF LIABILITY

 

We have no control over and do not guarantee the quality, safety or legality of the information posted by users or customers of the Site, the truth or accuracy of any information posted by users or customers of the Site or the qualifications, background or abilities of any users or customers of the Site. OmniPACS acts as a portal for the online distribution and publication of user submitted information and has no obligation to screen communications or information in advance and is not responsible for screening or monitoring documents or other information posted by other users or customers of the Site. You agree that you are solely responsible for the content of any document or any other information you post to the Site and any consequences arising from such posting or sharing of any such document including without limitation, failure to comply with any applicable laws or regulations.
Without limiting the foregoing, we do not make any representations or warranties regarding our customers’ satisfaction of applicable government regulations in connection with each customer’s use of the Site or any services provided by OmniPACS hereunder. You hereby release us for any and all liability and damages pertaining to any and all of the foregoing.

 

HEADINGS

 

The headings of the sections, subsections and paragraphs of this Agreement are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

 

ENTIRE AGREEMENT

 

This Agreement, any Amendments to this Agreement entered into after the acceptance hereof and any other terms and conditions on the Site, including, without limitation, the Terms of Use and the Privacy Policy (collectively, the “Policies”) constitutes the entire agreement of the parties and supersedes all previous and contemporaneous communications, presentations, proposals, or agreements regarding the subject matter hereof. All of the terms and conditions of the Policies are incorporated herein by reference. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any other Policy, the terms and conditions which are more favorable to OmniPACS shall govern. Customer has caused this Agreement to be accepted by its duly authorized representative. We reserve the right to make changes to this Agreement at our sole and absolute discretion, and we may do so from time to time and without notice. Should we make material changes to this Agreement, we shall post a prominent notice on the Site, notify you of the applicable changes and/or publish those changes on the Site, and your continued use of the Site and the OmniPACS services shall constitute your acceptance of such changes and your agreement to be legally bound thereby. By choosing “Accept” I am attesting that I have read and agree to this Agreement.