TERMS OF SERVICE FOR ORION OUTCOMES BENCHMARKING SERVICES
1. ORDER, ACCEPTANCE AND SERVICE.
a. When Accepted by Orion Software Development, the Order submitted by Customer creates a contract between Customer and Orion Software Development, consisting of the Order, the applicable Service Description and these Terms of Service. An Order is “Accepted” by Orion Software Development when (i) with respect to Orders submitted online, Orion Software Development provides Services in response to the Order or bills Customer for payment and (ii) with respect to Orders reduced to writing and signed on an approved Orion Software Development form, when an authorized representative of Orion Software Development executes and delivers such form signed by Customer.
b. Orion Software Development will provide, and Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (the “Service Fees”).
2. FEES, TAXES, AND PAYMENT. Customer will pay to Orion Software Development the Service Fees in the manner set forth in the Order. Orion Software Development may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time on or after expiration of the Initial Term by providing thirty (30) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Orion Software Development’s net income). All such taxes will be added to Orion Software Development’s invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. If any invoice is not paid within 45 days after the date of the invoice, Orion Software Development may charge Customer a late fee of $15 for such invoice; in addition any amounts payable to Orion Software Development not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If Orion Software Development collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Orion Software Development prevails in any action to which the Customer and Orion Software Development are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Orion Software Development’s reasonable attorneys’ fees. If any check is returned for insufficient funds Orion Software Development may impose a processing charge of $25.
3. TERM AND TERMINATION.
a. Benchmarking Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will not automatically renew. Renewal notices will be sent via electronic mail. A new Order must be generated by Customer for renewal unless other arrangements are made.
b. Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured thirty (30) days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets
c. Orion Software Development may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) by providing thirty (30) days prior written notice thereof to Customer, if Orion Software Development determines in good faith that Customer’s use of the Benchmarking Services violates this Agreement. Refunds will be offered at Orion Software Development’s discretion.
d. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Orion Software Development may be entitled.
4. CUSTOMER’S REPRESENTATIONS AND WARRANTIES. Customer hereby represents and warrants to Orion Software Development and agrees that during the Term, Customer will ensure that:
a. Customer validly and with permission possesses the Health Information and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Health Information and each element thereof without any obligation by Orion Software Development to pay any fees or other compensation of any kind to any Person.
b. Customer’s use, publication and display of the Health Information will not constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated.
c. Customer will comply with all applicable laws, rules and regulations regarding the Health Information.
d. Customer has used its best efforts to ensure that the Health Information is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code.
e. Customer will use the Benchmarking Services only for business purposes and not for any family, household or personal use.
f. Customer has used its best efforts to ensure that Health Information submitted to Orion Software Development corresponds to the edition of the Benchmarking Services provided.
5. LICENSE TO ORION SOFTWARE DEVELOPMENT. Customer hereby grants to Orion Software Development a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order:
a. Digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, and publish the Health Information as appropriate only to the extent permissible under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
b. Make archival or back-up copies of the Health Information. Except for the rights expressly granted above, Orion Software Development is not acquiring any right, title or interest in or to the Health Information, all of which shall remain solely with Customer.
6. CUSTOMER’S RESPONSIBILITIES.
a. Because the Benchmarking Services permit Customer to electronically transmit Health Information, Customer shall be fully responsible for uploading all content to Orion Software Development. Customer is also responsible for ensuring that the Health Information is compatible with the hardware and software used by Orion Software Development to provide the Benchmarking Services, as the same may be changed by Orion Software Development from time to time. Specifications for the hardware and software used to provide the Benchmarking Services will be available on Orion Software Development’s Web site. Customer shall periodically access Orion Software Development’s Web site to determine if Orion Software Development has made any changes thereto.
b. Customer is solely responsible for making back-up copies of the Health Information.
7. ORION SOFTWARE DEVELOPMENT INTELLECTUAL PROPERTY.
a. Orion Software Development hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Orion Software Development Technology solely for the purpose of accessing and using the Services. Customer may not use the Orion Software Development Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Orion Software Development to Customer any Orion Software Development Technology, and all rights, titles and interests in and to the Orion Software Development Technology shall remain solely with Orion Software Development. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Orion Software Development Technology.
b. Orion Software Development’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Orion Software Development. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Orion Software Development.
c. Any feedback, answers, questions, comments, suggestions, ideas or the like which Customer sends to Orion Software Development relating to the Services will be treated as being non-confidential and non-proprietary. Orion Software Development may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
d. All data received by Customer through the Benchmarking Services is to be used solely and privately by Customer and its agents. Data may not be shared with other entities who may use data for business purposes without contracting with Orion Software Development.
8. LIMITED WARRANTY.
a. Orion Software Development represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Orion Software Development generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Orion Software Development within 30 days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Orion Software Development’s sole obligation, for breach of the foregoing warranties shall be for Orion Software Development, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current yearly Service Fees pro rated by the number of months in which the Services have been interrupted. Orion Software Development may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
b. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Orion Software Development’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Orion Software Development or its contractors.
c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, ORION SOFTWARE DEVELOPMENT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ORION SOFTWARE DEVELOPMENT HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. ORION SOFTWARE DEVELOPMENT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
9. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL ORION SOFTWARE DEVELOPMENT’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO ORION SOFTWARE DEVELOPMENT BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b. ALTHOUGH BEST EFFORT WILL BE MADE, ORION SOFTWARE DEVELOPMENT CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. ORION SOFTWARE DEVELOPMENT WILL NOT BE LIABLE FOR ANY ERASURE OR DESTRUCTION OF DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 10 AND 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
10. INDEMNIFICATION OF ORION SOFTWARE DEVELOPMENT. Customer shall defend, indemnify and hold harmless Orion Software Development, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Orion Software Development Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Orion Software Development Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Health Information or any End User’s use of the Health Information, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of the Health Information, or the use of the Services in combination with hardware, software or content not provided by Orion Software Development, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any failure of the Health Information to be compatible with the hardware or software used by Orion Software Development to provide the Services, including any damage to Orion Software Development’s servers or other hardware caused thereby.
11. INDEMNIFICATION OF CUSTOMER.
a. Orion Software Development shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any United States patent, copyright or trademark existing on the Effective Date, or that Orion Software Development has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist Orion Software Development in the defense or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by Orion Software Development, but Orion Software Development will not be liable for any costs or expenses incurred without its prior written authorization.
b. Promptly after receipt by Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Customer may be indemnified hereunder, Customer shall give written notice thereof to Orion Software Development, provided that failure to give or delay in giving such notice to Orion Software Development shall not relieve Orion Software Development of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Orion Software Development shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Customer may participate in the defense of any such claim or suit at Customer’s own expense.
c. If an injunction, decree or judgment is, or Orion Software Development believes in its sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, Orion Software Development may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer.
d. Notwithstanding Section 11(a), Orion Software Development assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by Orion Software Development in writing, (iii) the Health Information, or any content, data or information provided or supplied by an End User, or (iv) Customer’s use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF ORION SOFTWARE DEVELOPMENT, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
a. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Protected Health Information of the other party disclosed or made available to it, except for use of such Protected Health Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 12(b), each party will (i) treat the Protected Health Information of the other party as secret and confidential, (ii) limit access to the Protected Health Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Protected Health Information of the other party to any other Person without the prior written consent of the other party.
b. Notwithstanding Section 12(a), the following shall not be considered Protected Health Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
c. Each party acknowledges that disclosure of any aspect of the Protected Health Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Protected Health Information of the other party (including all copies thereof) in its possession or control.
a. Independent Contractor. Orion Software Development and Customer are independent contractors and nothing contained in this Agreement places Orion Software Development and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
b. Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Colorado, except that all arbitration and related proceedings conducted pursuant to Section 13(c) below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. . The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 13(C) BELOW MUST BE BROUGHT IN A COLORADO STATE OR FEDERAL COURT LOCATED IN WELD COUNTY, COLORADO, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
c. Mandatory Arbitration. Notwithstanding Section 13(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by a recognized provider of arbitration services agreed upon by both parties before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Longmont, Colorado. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
d. Headings. The headings herein are for convenience only and are not part of this Agreement.
e. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Orion Software Development, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Orion Software Development. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Orion Software Development in its sole discretion, which modifications will be effective upon posting to Orion Software Development’s web site. Customer will be asked to review the Terms of Service prior to initiating a request for Benchmarking Services.
f. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
g. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Orion Software Development may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in Orion Software Development’s billing records.
h. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
i. Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Orion Software Development. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Orion Software Development may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
j. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Orion Software Development’s records of such execution shall be presumed accurate unless proven otherwise.
k. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
l. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, or third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
m. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
n. Marketing. Customer agrees that during the term of this Agreement Orion Software Development may publicly refer to Customer, orally and in writing, as a customer of Orion Software Development. Any other public reference to Customer by Orion Software Development requires the written consent of Customer.
14. DEFINITIONS. For purposes of this Agreement, the following terms have the meanings specified below:
a. “Agreement” means each contract created between Orion Software Development and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.
b. “Health Information” is any information, whether oral or recorded in any form or medium that is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse”; and relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
c. “Orion Software Development Technology” means Orion Software Development’s proprietary technology, including, without limitation, Orion Software Development services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Orion Software Development or licensed to Orion Software Development from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Orion Software Development Technology conceived, reduced to practice or developed during the term of this Agreement by either party.
d. “Person” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
e. “Protected Health Information” (PHI) means individually identifiable Health Information. Identifiable refers not only to data that is explicitly linked to a particular individual. It also includes Health Information with data items which reasonably could be expected to allow individual identification.
f. “Order” means the order submitted by the Customer to Orion Software Development for Services, whether such order is submitted online through Orion Software Development’s web site or on a written order form.
g. “Terms of Service” means these Terms of Service, as the same may be modified, altered or amended from time to time by Orion Software Development.
h. “Service(s)” or “Benchmarking Service(s)” means either Standard Benchmarking Service or Premium Benchmarking Service.
i. “Service Description” means the applicable documents made available by Orion Software Development to Customer to describe the applicable Services at the time the Order is accepted by Orion Software Development.
j. “Term” means the duration of any Agreement between Orion Software Development and Customer. With respect to Benchmarking Services, the “Initial Term” is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 3. . With respect to Optional Services, the “Term” begins when Orion Software Development accepts the Order and ends on the first to occur of (i) Orion Software Development’s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.