PRODUCT TERMS PAGE: MERGE iCONNECT® NETWORK SERVICES
These Terms and Conditions (the “Terms for iConnect Network”), together with the applicable Sales Order and Underlying Agreement entered into between Merge Healthcare Solutions Inc. (“Merge”) and the customer designated in the applicable Sales Order (“Customer”) constitute the “Agreement” between the Parties as to the Merge iConnect Network Services, and the Agreement shall govern the transactions set forth in the applicable Sales Order. In the event these Terms for iConnect Network conflict with the Underlying Agreement, these Terms for iConnect Network shall control. THE AGREEMENT SHALL TAKE PRECEDENCE OVER ANY TERMS CONTAINED IN A PURCHASE ORDER OR OTHER DOCUMENT ISSUED BY CUSTOMER (regardless of whether such documents are accepted by Merge, which acceptance shall be for administrative convenience only).
1. DEFINITIONS
1.1. “Authorized User” means an employee or contractor or member of the medical staff of Customer, a referring physician, or other person that (i) is authorized by Customer to access and use the Merge iConnect Network Services; and (ii) has been issued, by Customer, unique login credentials (individual user ID and password).
1.2. “Customer Content” means all Reports, data and other content that Customer sends to or otherwise causes to be submitted through or stored by the Merge iConnect Network Services.
1.3. “Customer Support Contact” means an individual employee or other personnel of Customer who is authorized by Customer to interact with Merge as to support issues with the Merge iConnect Network Services and whose name has been provided by Customer to Merge as a ‘Customer Support Contact’.
1.4. “iConnect Network First Productive Use” means the date that a Report has first been routed through the Merge iConnect Network.
1.5. “iConnect Network Support Services” means the technical support of Customer’s use of the Merge iConnect Network Services, as more fully described in the Merge Support Services Program Terms found below.
1.6. “iConnect Network Term” means the term during which Customer is entitled to access and obligated to pay fees for the iConnect Network, with such term being comprised of the Initial iConnect Network Term together with all Renewal iConnect Network Terms (as set forth below in Section 3).
1.7. “Internet Connectivity” shall mean that level of Customer’s connectivity from its location(s) to the iConnect Network such that the connectivity adequately allows the transfer of data as necessary hereunder.
1.8. “Maintenance Event” means that period of time for which Merge performs scheduled or emergency maintenance on the iConnect Network.
1.9. “Merge iConnect Network” means Merge’s cloud based hub through which validated clinical messages and content can be routed from one health information technology application to another (including but not limited to Customer’s forwarding of Reports to a Referring Provider’s electronic medical record system).
1.10 “Order”, also sometimes known as ‘computerized physician order entry’ (CPOE), means an electronic version of a physician request for a patient examination, medical procedure or Report.
1.11 “Per-Order Fee” means the fee payable by Customer to Merge for each Order routed through or otherwise processed by the iConnect Network. The dollar amount of the Per-Order Fee is set forth on the applicable Sales Order. The standard Per-Order Fee is based on electronic transmission from (i) the iConnect Network; or (ii) a Referring Provider’s electronic medical record system from an EMR vendor with which Merge has partnered for such purpose.
1.12. “Per-Report Fee” means the fee payable by Customer to Merge for each Report routed through or otherwise processed by the iConnect Network. The dollar amount of the Per-Report Fee is set forth on the applicable Sales Order. The standard Per-Report Fee is based on electronic transmission to a Referring Provider’s electronic medical record system that is certified to receive clinical messages from a third party data exchange company with which Merge has partnered for such purpose, with an alternate fee (as may be set forth on the applicable Sales Order) for a transmission via facsimile when transmission to a Referring Provider’s electronic medical record system cannot be completed through no fault of the iConnect Network.
1.13. “Referring Provider” means a physician or other qualified medical provider (i) that has ordered an exam and (ii) to whose electronic medical record system the resultant Report will be routed.
1.14. “Report” means a doctor’s report of a radiology exam that is routed through the Merge iConnect Network. A Report may include a link to the associated image embedded within such Report.
1.15 “Transaction Fees” means the Per-Order Fees and the Per-Report Fees.
1.16. “Underlying Agreement” means this Sales Order and the terms and conditions that govern this Sales Order.
2. MERGE iCONNECT NETWORK SERVICES.
2.1 Rights of Use to the Merge iConnect Network Services. As set forth herein, during the iConnect Network Term Customer may use the Merge iConnect Network Services to route clinical content limited to copies of Reports from Customer’s qualified (by Merge) health information technology system to the Merge iConnect Network, and Customer may allow its Authorized Users to access and use the Merge iConnect Network Services solely for the purpose of receiving reports and viewing imaging exam studies. The routing of Reports may involve third party data exchange partners and electronic medical record systems of Referring Providers.
2.2 Certain Restrictions on Use of the Merge iConnect Network Services. Customer and its Authorized Users shall not:
- Use the Merge iConnect Network or Merge iConnect Network Services for any purpose other than Customer’s internal business purposes;
- Permit the use of or access to the Merge iConnect Network Services by any party other than an Authorized User;
- Sell, lease, share, loan, encumber, license, sublicense, distribute or transfer the Merge iConnect Network Services to third parties, nor in any manner use the Merge iConnect Network Services to provide hosting, application service provider, service bureau, time sharing, outsourcing or other services to third parties, nor allow the Merge iConnect Network Services to be used in any commercial time share arrangement;
- Attempt to gain unauthorized access to the Merge iConnect Network Services or the Merge iConnect Network, or their underlying software, systems or networks; and/or
- Use the Merge iConnect Network Services to transmit content that is illegal, is libelous, is in violation of third party rights of privacy or confidentiality, or infringes upon intellectual property rights; or use the Merge iConnect Network Services or the Merge iConnect Network or in any other manner that is unlawful or not in accordance with the Underlying Agreement.
2.3 Documentation. Any Documentation provided to Customer shall be used solely in connection with Customer’s use of the Merge iConnect Network Services as permitted under the Underlying Agreement.
2.4 Ownership. Merge (or, where applicable, its licensors) reserves and retains any and all right, title and interest, implied or otherwise, in and to the Merge iConnect Network Services, the Merge iConnect Network and Merge software, together with all modifications thereto. Customer acquires only the right to use the Merge iConnect Network Services in accordance with the Underlying Agreement and does not acquire any rights of ownership or any implied right of any kind.
2.5 Certain Customer Responsibilities. Customer is responsible for all activities of its Authorized Users and all activities that occur under Customer’s Authorized User accounts. Customer is responsible for maintaining the security and confidentiality of all Authorized User usernames and passwords. Customer agrees to immediately notify Merge of any unauthorized use of any Merge iConnect Network Services username or password or account or any other known or suspected breach of security regarding the Merge iConnect Network Services or the Merge iConnect Network.
2.6 Connectivity and Third Party Elements. Maintenance of an adequate WAN connection is the responsibility of Customer. Customer acknowledges that iConnect Network Services (including the routing of Reports) are dependent upon Customer having applicable connectivity to sending and receiving health information technology applications that (i) are in proper working order and (ii) have been validated by Merge to interoperate with the Merge iConnect Network. Merge assumes no responsibility for this connectivity.
2.7 iConnect Network Services. Included in the Merge iConnect Network Services are the following:
(a) Internet Connectivity. Merge will supply adequate bandwidth connectivity services at the facility housing the iConnect Network. Customer shall make its own arrangements for internet access in order to utilize the iConnect Network.
(b) Security Services. Merge will provide security services via facility access limited to authorized Merge and its contracted third party personnel and through data access security via managed security appliances and virtual private networks with encrypted data streams.
(c) Monitoring Services. Merge will provide monitoring of the iConnect Network facility including application monitoring, server and database monitoring.
(d) Release Management and Change Control. Merge will provide release management and change control services to ensure that versions of servers, network devices, storage, software and applications are appropriate as necessary for Merge to maintain the iConnect Network Service.
(e) Administration Services. Merge will provide for and administer the appropriate resources (including hardware, software, operating systems and personnel) at its iConnect Network facility as necessary to maintain the iConnect Network.
(f) iConnect Network Support Services. Merge shall provide Support Services during the iConnect Network Term.
3. iCONNECT NETWORK TERM.
3.1 Initial iConnect Network Term. Customer shall be entitled to Merge iConnect Network Services during the iConnect Network Term, which shall commence upon iConnect Network First Productive Use and continue for the period designated on the Sales Order as the Initial iConnect Network Term, provided that if no ‘Initial iConnect Network Term’ is designated on the Sales Order, then such term shall be for one (1) year and shall expire on the first anniversary of iConnect Network First Productive Use (“Initial iConnect Network Term”).
3.2 First iConnect Network Renewal Term. Upon expiration of the Initial iConnect Network Term, the Parties may agree to renew the iConnect Network Term for an additional one-year renewal term or for such different term as is set forth on the Sales Order to be executed for the renewal term (the “First iConnect Network Renewal Term”). The Sales Order for the First iConnect Network Renewal Term shall be mutually agreed to by the Parties, shall be governed by these Terms and Conditions, and shall contain the Per-Record Fee and Annual report Commitment terms for the First iConnect Network Renewal Term.
3.3 Subsequent iConnect Network Renewal Terms. Thereafter, the iConnect Network Term shall automatically renew for consecutive annual calendar-year renewal terms (each an “iConnect Network Renewal Term”), unless either Party provides the other Party with written notice, at least thirty (30) days prior to the expiration of the then-current iConnect Network Term, of its intention not to renew the term of the Merge iConnect Network Services. In the event the Per-Record Fee or Annual report Commitment terms for an iConnect Network Renewal Term are to change from the previous term, Merge shall provide Customer with written notification of such no less than sixty (60) days prior to the commencement of the new iConnect Network Renewal Term.
4. iCONNECT NETWORK FEES.
4.1 The following Fees shall be payable by Customer:
(a) iConnect Network Fees. Customer shall pay Merge the applicable Transaction Fees (with the amount of the Per-Report Fee and Per-Order Fee set forth on the applicable Sales Order). Merge will invoice Customer on a quarterly basis for the Transaction Fees for the actual number of Reports and Orders for the applicable quarter.
(b) Implementation Fees. In addition to the Transaction Fees, Customer shall pay Merge additional initial fees relative to implementation and training, with such fees to be set forth on the applicable Sales Order (or on a separate Sales Order for the initial iConnect Network fees).
(c) Clinical Decision Support Tool Fees. Transaction Fees do not include charges for using clinical decision support tools (such as those provided by National Decision Support Corporation). In the event Customer elects to use such a third party clinical decision support tool, Customer will contract directly with the vendor of such tool and will pay the applicable fee for such tool directly to such vendor.
5. CUSTOMER CONTENT.
5.1. Warranties as to Customer Content. Customer represents and warrants the following in regard to Customer Content:
(a) All Customer Content is and shall at all times be compliant with all law and regulations;
(b) Customer Content shall not be libelous, in violation of third party rights of privacy or confidentiality, nor infringe upon intellectual property rights; and
(c) Prior to directing Customer Content through the Merge iConnect Network, Customer shall have first obtained the all consents, authorizations and/or other forms of legal permission required under HIPAA and other applicable law and regulations.
5.2. Rights to Customer Content. Customer Content shall be the property of Customer, and Customer grants Merge a perpetual, irrevocable license to maintain and use such data to the extent permitted by law (including the right to de-identify such data consistent with the provisions of HIPAA and other applicable law). This provision shall survive termination of the Underlying Agreement.
6. MERGE iCONNECT NETWORK WARRANTIES AND ACKNOWLEDGEMENT.
6.1. iConnect Network Warranty. Merge makes the following warranties as to the Merge iConnect Network Services:
(a) The Merge iConnect Network Services will perform substantially as set forth in the Documentation; and
(b) Services will be performed by appropriately trained personnel in a professional manner consistent with generally accepted industry standards and practices.
6.2. Remedy. In the event of a breach of the preceding warranty, Customer’s exclusive remedy shall be to terminate the Underlying Agreement for cause (pursuant to the termination provisions of the Underlying Agreement) and have Merge refund any prepaid iConnect Network Services Fees attributable to the period subsequent to termination.
6.3. Customer Acknowledgement. Customer acknowledges that the routing of Reports may involve the systems of third party data exchange partners and electronic medical record systems of Referring Providers, and Merge is not responsible for failures or delays attributable to such. Merge assumes no responsibility for security, network infrastructure, design, implementation, proxy design and proxy implementation of Customer’s network. To operate properly, the iConnect Network Services require adequate internet connectivity by Customer, Referring Providers and Authorized Users.
6.4. Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE ABOVE IN SECTION 6.1, MERGE MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE MERGE iCONNECT NETWORK SERVICES. MERGE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE.
7. TERMINATION OF iCONNECT NETWORK SERVICES
7.1. Effects of and Obligations upon Termination. Upon termination of this Sales Order or of the iConnect Network Services Term or of the Underlying Agreement, Customer shall immediately cease access to and use of the Merge iConnect Network Services. Termination of the Sales Order or the Underlying Agreement shall not relieve Customer of its obligation to pay Fees through the remainder of the scheduled Term, except in the event of termination by Customer for cause (pursuant to the Underlying Agreement), Customer shall have no obligation to pay iConnect Network Services Fees attributable to the period subsequent to termination and Merge shall refund any prepaid iConnect Network Services Fees attributable to the period subsequent to termination.
7.2. Survival. All provisions of this Products Terms Page which by their nature are intended to survive the termination of this Sales Order (including, without limitation, the provisions of Sections 2.2, 2.4, 4, 5.2, 6.3, 6.4 and 7) shall survive such termination.
TERMS AND CONDITIONS FOR MERGE iCONNECT® CLOUD ARCHIVE SERVICES
These Terms and Conditions (the “iCCA Terms”), together with the applicable Sales Order and Underlying Agreement entered into between Merge Healthcare Solutions Inc. (“Merge”) and the customer designated in the applicable Sales Order (“Customer”) constitute the “Agreement” between the Parties as to the Merge iConnect Cloud Archive Services, and the Agreement shall govern the transactions set forth in the applicable Sales Order. In the event these iCCA Terms conflict with the Underlying Agreement, these iCCA Terms shall control. THE AGREEMENT SHALL TAKE PRECEDENCE OVER ANY TERMS CONTAINED IN A PURCHASE ORDER OR OTHER DOCUMENT ISSUED BY CUSTOMER (regardless of whether such documents are accepted by Merge, which acceptance shall be for administrative convenience only).
1. DEFINITIONS
1.1 “Archive Facility” means the Merge facility at which the Merge iConnect Cloud Archive Services are provided.
1.2 “Archive Services Fees” (sometimes referred to as “Fees”) means Monthly Archive Fees and Ingestion Fees.
1.3 “Authorized User” means an employee or contractor or member of the medical staff of Customer, a referring physician, or other person that (i) is authorized by Customer to access and use the Merge iConnect Cloud Archive Services; and (ii) has been issued, by Customer, unique login credentials (individual user ID and password).
1.4 “Customer Content” means all Studies and other data and other content that Customer sends to or otherwise causes to be submitted through the Merge iConnect Cloud Archive Services or that is stored for Customer in the Merge iConnect Cloud Archive.
1.5 “Disaster Recovery Services” means services provided by Merge, as set forth in Section 2.2(b), for the recovery of certain Studies lost on Customer’s local archive. Disaster Recovery Services are only available if Customer has purchased Disaster Recovery Services as specifically set forth in the applicable Sales Order.
1.6 “iConnect Cloud Archive First Productive Use” means the first to occur of: (i) the date that the first Customer Study has been Ingested into the Merge iConnect Cloud Archive; or (ii) the date that the first Migrated Study has been moved into the Merge iConnect Cloud Archive.
1.7 “iConnect Cloud Archive Support Services” means the technical support of Customer’s use of the Merge iConnect Cloud Archive Services, as more fully described on paragraph 1.13.
1.8 “Ingest” means to process an uploaded Study and enter it into the Merge iConnect Cloud Archive. “Ingestion” means the time at which the Study is entered into the Merge iConnect Cloud Archive. “Ingested Study” means a Study that has been Ingested into the Merge iConnect Cloud Archive. For the avoidance of doubt, a Migrated Study is not an Ingested Study (unless the Study has also been Ingested).
1.9 “Ingestion Fee” means the per-Study fee, as set forth below in Section 3, for Ingestion of each Study into the Merge iConnect Cloud Archive.
1.10 “Internet Connectivity” shall mean that level of Customer’s connectivity from its location(s) to the Archive Facility such that the connectivity allows appropriate data transfer performance.
1.11 “Malicious Code” means viruses, Trojan horses, time bombs, worms and/or other destructive, malicious or harmful files, code, programs, scripts or other content.
1.12 “Merge iConnect Cloud Archive” means the cloud based archive for DICOM images to which, through the Merge iConnect Cloud Archive Services, Customer may move copies of locally archived Studies.
1.13 “Merge iConnect Cloud Archive Services” means the services purchased by Customer, as set forth in Section 2, regarding access to and use of the Merge iConnect Cloud Archive. Merge iConnect Cloud Archive Services include Disaster Recovery Services and iConnect Cloud Archive Support Services.
1.14 “Migrated Study” means a local copy Study that has been physically moved (i.e., via a physical medium such as tape, disk, hard drive, USB, server) by Merge, through a Professional Services engagement with Customer, from Customer’s local archive to the Merge iConnect Cloud Archive.
1.15 “Monthly Archive Fee” means the per-Study fee, as set forth below in Section 3, payable monthly during the Term (and payable in addition to any Ingestion Fees) for each Study in the Merge iConnect Cloud Archive (including both Ingested Studies and Migrated Studies).
1.16 “Study” means each captured study having a unique DICOM study instance UID.
1.17 “Underlying Agreement” means the applicable Sales Order and the terms and conditions that govern such Sales Order.
2. MERGE iCONNECT CLOUD ARCHIVE SERVICES.
2.1 Rights of Use to the Merge iConnect Cloud Archive Services. As set forth in these iCCA Terms, during the Term Customer may use the Merge iConnect Cloud Archive Services to move copies of locally archived Studies to the Merge iConnect Cloud Archive and Customer may allow its Authorized Users to access and use the Merge iConnect Cloud Archive Services solely for the purpose of storing, viewing and sharing Studies. In the event such is specifically set forth in the applicable Sales Order, Customer may also be entitled to certain Disaster Recovery Services during the Term.
2.1 Merge iConnect Cloud Archive Services.
(a) Archive Service. Included in the Merge iConnect Cloud Archive Services are the following:
- Internet Connectivity. Merge will supply adequate bandwidth connectivity services at the Archive Facility. Customer shall make its own arrangements for internet access in order to utilize the Merge iConnect Cloud Archive Services.
- Security Services. Merge will provide security services via facility access limited to authorized Merge and its contracted third party personnel and through data access security via managed security appliances and virtual private networks with encrypted data streams.
- Monitoring Services. Merge will provide continuous monitoring of the Archive Facility including application monitoring, server and database monitoring.
- Backup, Archiving and Recovery Services. In the event of data loss, Merge will provide reasonable recovery services to Customer to restore the most recent backup as set forth below in Section 2.2(b) (Disaster Recovery Services).
- Release Management and Change Control. Merge will provide release management and change control services to ensure that versions of servers, network devices, storage, software and applications are appropriate as necessary for Merge to maintain the Merge iConnect Cloud Archive Service.
- Administration Services. Merge will provide for and administer the appropriate resources (including hardware, software, operating systems and personnel) at its Archive Facility as necessary to maintain the Merge iConnect Cloud Archive Service.
- iConnect Cloud Archive Support Services.
(b) Disaster Recovery Services (available only if Customer has purchased Disaster Recovery Services as specifically set forth in the applicable Sales Order)
(1) Definitions. The following definitions shall apply to this Section:
- “Disaster” means (i) loss of Local Studies and inability to recover such lost Local Studies, or (ii) destruction of Customer’s local archive and inability to access Local Studies. Any interruption due to Customer’s hardware, software or peripheral upgrades, maintenance or peripheral device malfunctions shall not constitute a Disaster.
- “Local Study” means the DICOM copy of a Study stored on Customer’s primary local archive.
- “Notification of Disaster” or “Notification” means the written notification (with email being acceptable) by Customer, made by its Customer Support Contact to Merge upon the occurrence of a Disaster.
- “Calendar Quarter” means the three-month period commencing upon January 1, April 1, July 1 or October 1 of any year.
(2) Disaster Recovery Process.
(A) Upon receipt of a Notification of Disaster, Merge will commence commercially reasonable measures to restore, in stages, image data of Studies to Customer’s local archive.
- Prior to any transmission of data from the Merge iConnect Cloud Archive, it shall be Customer’s responsibility to first rebuild and restore its local PACS archive system. Merge services are available for such purpose, pursuant to a separate sales order or statement of work and for an additional fee (as shall be mutually agreed).
- Once the local PACS archive has been satisfactorily rebuilt, Studies stored in the Merge iConnect Cloud Archive will be delivered, in stages, with a minimum of 2 terabytes of image data in the first 200 hours. The process will be repeated in stage increments until all data is successfully restored into the Customers local PACS Archive. Customer acknowledges that the timing and amount of data transmitted in any given stage shall be dependent upon the condition of Customer’s local archive system and Customer’s internet connectivity.
(B) Merge shall provide Disaster Recovery Services as set forth above on an as needed basis, but not to exceed more than one recovery process per Calendar Quarter. In the event Customer requires Disaster Recovery Services more than once per Calendar Quarter, Merge will be available to provide such services pursuant to a separate sales order or statement of work and for an additional fee (as shall be mutually agreed).
2.3 Certain Restrictions on Use of the Merge iConnect Cloud Archive Services. Customer and its Authorized Users shall not:
- Use the Merge iConnect Cloud Archive or Merge iConnect Cloud Archive Services for any purpose other than Customer’s internal business purposes;
- Permit the use of or access to the Merge iConnect Cloud Archive Services by any party other than an Authorized User;
- Sell, lease, share, loan, encumber, license, sublicense, distribute or transfer the Merge iConnect Cloud Archive Services to third parties, nor in any manner use the Merge iConnect Cloud Archive Services to provide hosting, application service provider, service bureau, time sharing, outsourcing or other services to third parties, nor allow the Merge iConnect Cloud Archive Services to be used in any commercial time share arrangement;
- Attempt to gain unauthorized access to the Merge iConnect Cloud Archive Services or the Merge iConnect Cloud Archive, or their underlying software, systems or networks; and/or
- Use the Merge iConnect Cloud Archive Services to transmit content that is illegal, is libelous, is in violation of third party rights of privacy or confidentiality, or infringes upon intellectual property rights; or use the Merge iConnect Cloud Archive Services or the Merge iConnect Cloud Archive or in any other manner that is unlawful or not in accordance with the Agreement.
2.4 Documentation. Any Documentation provided to Customer shall be used solely in connection with Customer’s use of the Merge iConnect Cloud Archive Services as permitted under the Agreement.
2.5 Ownership. Merge (or, where applicable, its licensors) reserves and retains any and all right, title and interest, implied or otherwise, in and to the Merge iConnect Cloud Archive Services, the Merge iConnect Cloud Archive and Merge software, together with all modifications thereto. Customer acquires only the right to use the Merge iConnect Cloud Archive Services in accordance with the Agreement and does not acquire any rights of ownership or any implied right of any kind.
2.6 Certain Customer Responsibilities. Customer is responsible for all activities of its Authorized Users and all activities that occur under Customer’s Authorized User accounts. Customer is responsible for maintaining the security and confidentiality of all Authorized User usernames and passwords. Customer agrees to immediately notify Merge of any unauthorized use of any Merge iConnect Cloud Archive Services username or password or account or any other known or suspected breach of security regarding the Merge iConnect Cloud Archive Services or the Merge iConnect Cloud Archive.
Connectivity. The WAN connection is the responsibility of the Customer, and the WAN connection must be maintained by Customer at levels to support transmission of two (2) times the Customer’s daily Study volumes and other Customer Content. Additionally, if required the Customer must maintain the Customer side VPN connection to the Merge iConnect Cloud Archive Services.
2.8 Archive Setup.
(a) Merge Professional Services for Customer-side set-up of the Merge iConnect Cloud Archive Service and migration of Studies is provided for by a separate agreement between the Parties.
(b) Merge assumes no responsibility for security, network infrastructure, design, implementation, proxy design and proxy implementation of Customer’s network. To operate properly, the Merge iConnect Cloud Archive Services requires adequate operational network bandwidth. Based on Study volumes projected by Customer, Merge may make minimum network bandwidth recommendations, but Customer shall be solely responsible for design, acquisition, implementation, and operation of its network.
2.9 iConnect Cloud Archive Services Term. Customer shall be entitled to Merge iConnect Cloud Archive Services during the Archive Services Term, which shall commence upon iConnect Cloud Archive First Productive Use and, unless earlier terminated as set forth in the Agreement, continue for the period set forth on the applicable Sales Order (“Initial Archive Services Term”). Thereafter, the Archive Services Term shall automatically renew for consecutive annual calendar-year renewal terms (each an “Archive Services Renewal Term”), unless either Party provides the other Party with written notice, at least thirty (30) days prior to the expiration of the then-current Archive Services Term, of its intention not to renew the term of the Merge iConnect Cloud Archive Services. The Initial Archive Services Term together with all Archive Renewal Terms shall constitute the “Archive Services Term”.
3. FEES.
3.1 Fees. The following Fees shall be payable by Customer:
(a) Archive Service Fees:
(1) Monthly Archive Fee. The recurring Monthly Archive Fee is set forth on the applicable Sales Order and is payable on a monthly basis throughout the Archive Services Term for each Study in the Merge iConnect Cloud Archive (regardless of whether an Ingested Study or a Migrated Study), as of the last day of the applicable month.
(2) Ingestion Fee. As each Ingested Study is Ingested, a one-time Ingestion Fee shall be generated and paid to Merge on a monthly basis. The amount of the Ingestion Fee (assessed on a per Study basis) is set forth on the applicable Sales Order.
(3) Annual Study Commitment.
(i) Minimum Commitment. Customer agrees that during each calendar year of the Archive Services Term a certain minimum number of new Studies shall be Ingested into the Merge iConnect Cloud Archive (the “Annual Study Commitment”). The number of Studies comprising the Annual Study Commitment is set forth on the applicable Sales Order. In the event the first and/or final year of the Archive Services Term is not a complete calendar year, the Annual Study Commitment shall be pro-rated for such year(s).
(ii) Annual Audit. On an annual basis, Merge will perform an audit to ascertain the number of Studies Ingested into the Merge iConnect Cloud Archive during the previous calendar year. To the extent that the actual number of Studies Ingested during such year is less than the Annual Study Commitment, then Customer shall be liable to Merge for the deficiency invoiced at the full Ingestion Fee.
(4) Additional fees for excess file size. The above fees are predicated upon the average size of a Study not exceeding 40 megabytes (MB). On a monthly basis Merge shall compute the Average Study File Size (“Average Study File Size”), and in the event the Average Study File Size exceeds 40MB, the Monthly Archive Fee shall increase as follows:
- Greater than 40MB but less than 60MB: For the applicable month the Monthly Archive Fee shall increase by $0.001 from the rate identified on the Sales Order.
- Greater than 60MB but less than 100MB: For the applicable month the Monthly Archive Fee shall increase by $0.002 from the rate identified on the Sales Order.
- Greater than 100MB: For the applicable month the Monthly Archive Fee shall increase by $0.003 from the rate identified on the Sales Order.
(b) Content Return Fee (per Section 4.4 below). The Content Return Fee shall be a fee to be mutually agreed upon by the Parties (which shall be based on the quantity of data in the Customer Content of which copies are returned to Customer).
4. CUSTOMER CONTENT.
4.1 Ownership and Responsibility. All Customer Content is proprietary to Customer and through the Agreement Merge acquires no right of ownership in the Customer Content. Customer Content is the sole responsibility of Customer, and Customer is responsible for the Customer Content’s quality, completeness, accuracy and legality.
4.2 Warranties as to Customer Content. Customer represents and warrants the following in regard to Customer Content:
(a) All Customer Content is and shall at all times be compliant with all law and regulations;
(b) Customer Content shall not be libelous, in violation of third party rights of privacy or confidentiality, nor infringe upon intellectual property rights.
(c) Prior to submitting Customer Content to the Merge iConnect Cloud Archive Services, Customer shall have first obtained the all consents, authorizations and/or other forms of legal permission required under HIPAA and other applicable law and regulations;
(d) Customer Content submitted to the Merge iConnect Cloud Archive Services shall be free from Malicious Code.
4.3 Backup Archive. Customer acknowledges that the Merge iConnect Cloud Archive and the Merge iConnect Cloud Archive Services provide a secondary archive (backup) for originals of Customer Content items. Customer is responsible for maintaining in its local archive the original of each Study and other item of Customer Content.
4.4 Return of Customer Content. Following expiration or termination of the Agreement, Merge may destroy or otherwise dispose of Customer Content in the Merge iConnect Cloud Archive or otherwise in its possession unless within thirty (30) days following termination or expiration Merge receives from Customer a written request for the delivery to Customer of the then-most recent copy of the Customer Content as stored in the Merge iConnect Cloud Archive (“Return Request”). Following receipt of a proper Return Request, Merge will use commercially reasonable efforts to deliver to Customer, within 30 days of its receipt of the Return Request, the copy of the Customer Content, for which Customer shall pay Merge a fee as set forth above in Section 3 (the “Content Return Fee”).
4.5 Effects of and Obligations upon Termination. Upon termination of the applicable Sales Order or the Archive Services Term, Customer shall immediately cease access to and use of the Merge iConnect Cloud Archive Services. Termination of the Agreement shall not relieve Customer of its obligation to pay Fees through the remainder of the scheduled Term, except in the event the Agreement is terminated by Customer for cause (pursuant to the Agreement), Customer shall have no obligation to pay Archive Services Fees attributable to the period subsequent to termination and Merge shall refund any prepaid Archive Services Fees attributable to the period subsequent to termination. Return of Customer Content shall be as provided above in Section 4.4.
4.6 Survival. All provisions of the Agreement which by their nature are intended to survive the termination of the Agreement(including, without limitation, the provisions of Sections 2.2, 2.4, 3, 4.1, 4.4, 4.5 and 6) shall survive such termination.
5. MERGE iCONNECT CLOUD ARCHIVE WARRANTIES
5.1 iConnect Cloud Archive Warranty. Merge makes the following warranties as to the Merge iConnect Cloud Archive Services:
(a) The Merge iConnect Cloud Archive Services will perform substantially as set forth in the Documentation;
(b) Services will be performed by appropriately trained personnel in a professional manner consistent with generally accepted industry standards and practices; and
(c) The Merge iConnect Cloud Archive Services will not transmit Malicious Code (except that it will not be deemed a breach of this warranty if such Malicious Code is attributable to Customer Content or other acts or omissions of Customer or its Authorized Users).
5.2 Remedy. In the event of a breach of the preceding warranty, Customer’s exclusive remedy shall be to terminate the Agreement for cause (pursuant to the termination provisions of the Agreement) and have Merge refund any prepaid Archive Services Fees attributable to the period subsequent to termination.
5.3 Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE ABOVE IN SECTION 5.1, MERGE MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE MERGE iConnect CLOUD ARCHIVE SERVICES. MERGE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE.
6. iCONNECT CLOUD ARCHIVE LIMITATIONS OF LIABILITY; MEDICAL RESPONSIBILITY
6.1 Limitation of Liability (iConnect Cloud Archive). IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MERGE AND ITS SUPPLIERS ARISING FROM THE APPLICABLE SALES ORDER OR FROM PROVISION OF THE MERGE ICONNECT CLOUD ARCHIVE SERVICES EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ARCHIVE SERVICES FEES PAID BY CUSTOMER IN THE 12 MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE FORM OF CLAIM OR ACTION. THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS BY MERGE HEREUNDER, REGARDLESS OF THE NUMBER OF CLAIMS TO WHICH THEY APPLY, BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THIS LIMITATION IS A FURTHER LIMITATION OF ANY LIMITATIONS OF LIABILITY SET FORTH IN THE AGREEMENT.
6.2 Medical Responsibility. Customer acknowledges and agrees that Merge is not engaged in the practice of medicine, and is not determining appropriate medical use of the Merge iConnect Cloud Archive Services. Medical treatment and diagnostic decisions, including those arising from the analysis of images, are the responsibility of Customer and its professional healthcare providers. Customer shall indemnify and hold Merge and its affiliated companies harmless, and, if requested by Merge, defend Merge, from all claims, actions, proceedings, damages, liability, judgments, settlements, losses, expenses, including reasonable attorney fees, and costs (“Losses”) resulting from any claim brought by a third party that is based upon or arises out of (a) Customer Content; (b) professional malpractice, misdiagnosis, or any other medical treatment matter in connection with the use of the Merge iConnect Cloud Archive Services (except to the extent that such Losses are directly caused by Merge’s negligence or a defect of the Merge iConnect Cloud Archive Services); or (c) use of the Merge iConnect Cloud Archive Services other than as authorized under the Agreement.