BY CHECKING THE "I AGREE" BOX (OR SIMILAR BUTTON), ACCESSING OR USING THE SERVICES, PLACING AN ORDER, OR BY OTHERWISE EXECUTING THIS TERMS OF SERVICE, YOU ARE ACCEPTING THIS TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS TERMS OF SERVICE AND THE TERMS "YOU," "YOUR," OR "SUBSCRIBER" WILL REFER TO SUCH ENTITY.
First Healthcare Compliance, a division of Panacea Healthcare Solutions, LLC (“Panacea”) and Subscriber enter into and agree to be bound by this Terms of Service.
ARTICLE I - DEFINITIONS
1.01 Defined Terms. Capitalized terms have the following meanings when used in this Agreement, unless otherwise specified:
"Add-on Service" means additional functionality or services that may be ordered by Subscriber for an additional fee that is non-refundable.
"Affiliate" means with respect to a Party, a legal entity that directly or indirectly controls, is controlled by or is under common control with such Party, where “control” means the direct or indirect ownership of more than fifty percent (50%) of the voting stock or other ownership interest of an entity, or if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
"Agreement" means this Terms of Service, each Order, and any exhibits and attachments hereto. "Business Day" means Monday through Friday, excluding holidays observed by Panacea.
"Confidential Information" has the meaning set forth in Section 5.03(a) hereof.
"Defaulting Party" has the meaning set forth in Section 3.05 hereof.
"Feedback" means comments, questions, suggestions, enhancement request, or other feedback relating to the Services or Service Content.
"Fee(s)" means all amounts to be paid to Panacea for the provision of Services and as specified in any applicable Order.
"Panacea Indemnified Person" has the meaning set forth in Section 4.01 hereof.
"Force Majeure Event" means an event that is outside the reasonable control of the affected Party, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, natural disasters, pandemic, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyber terrorism, or war.
"Intellectual Property Rights" means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
"Losses" has the meaning set forth in Section 4.01 hereof.
"Non-Defaulting Party" has the meaning set forth in Section 3.05 hereof.
"Order" means any Panacea accepted written or electronic document, registration form, or online process, regardless of actual name, specifying the Services ordered by Subscriber.
"Party" means Panacea or Subscriber, and "Parties" means both Panacea and Subscriber.
"Services" means the services provided by Panacea to Subscriber via the hosted Software, as set forth in an Order, including subsequent updates made generally available by Panacea
"Service Content" means any data, text, audio, video, images, forms, templates, documentation, materials, and other content provided by Panacea in connection with the Services, as may be modified from time to time by Panacea.
"Software" means the software developed and owned by or licensed by Panacea to aid it in its provision of the Services.
"Subscriber Affiliates" has the meaning set forth in Section 2.08 hereof.
"Subscriber Data" means any data, information, files, documents, videos, communications, materials, and other content entered, uploaded, imported, or transferred to or through the Services by Subscriber or its Users. "Subscription Term" means the Initial Term of Your authorized use of the Services and each subsequent Renewal Term. The initial term begins on the date set forth in the Order or when Panacea makes the Services available to Subscriber, whichever is earlier.
"Third Party" means any individual or entity that is not a Party, employee of a Party, or a Subscriber Affiliate. "Users" means Subscriber Affiliates and employees of Subscriber who are authorized to access the Services. "User Fee" means the fee payable by Subscriber to Panacea to maintain access to the Services and is calculated based upon the number of Users in accordance with Panacea’s current fee schedule.
ARTICLE II - PROVISION OF THE SERVICES
2.01 Undertaking to Provide and to Accept the Services. Panacea will provide to Subscriber, and Subscriber will accept, the Services set forth in an Order in accordance with this Agreement, including applicable Service Content and basic support for the Services. For the avoidance of doubt, such Services include access to software-as-a-service offering running on Panacea's (or its contracted party's) servers that can be accessed over the Internet to aid in healthcare related regulatory compliance. In connection with the Services, Subscriber may allow its Users to use the Services and Service Content subject to the same terms and conditions of this Agreement. Subscriber will remain fully responsible and liable for the acts and omissions of its Users.
2.02 Panacea Ownership. Subscriber acknowledges that Panacea owns or licenses all Intellectual Property Rights in or related to the Software, Services, and Service Content. Panacea grants Subscriber and its Users a limited, non-exclusive, nontransferable, non-sublicensable right to access and use the Services and Service Content during the Subscription Term. Subscriber and its Users will use the Services and Service Content for internal business use and in accordance with this Agreement.
2.03 Usage Restrictions. Any uses of the Services or Service Content not explicitly offered under this Agreement are strictly forbidden and such uses would be considered a breach of this Agreement. Without limiting the generality of the foregoing, Subscriber will not, and will not allow its Users to: (a) sell, resell, or sublicense any portion of the Services or Service Content; (b) provide, or otherwise make available, the Services or Service Content to any Third Party; (c) disassemble, recompile, reverse engineer, modify, or otherwise attempt to obtain or perceive any or all of the source code or algorithms for the Services; (d) copy, modify, or create derivative works based on the Services; (e) remove or alter any attribution of the author or source, or any copyright, trademark, or other intellectual property notice contained in the Services or Service Content; (f) use the Services to store, upload, distribute, transmit, email, post, or otherwise make available any Subscriber Data that (i) violates any Third Party's Intellectual Property Rights, privacy rights, or proprietary rights or (ii) is unlawful, harmful, threatening, defamatory, obscene, harassing, or that gives rise to civil liability or otherwise violates any applicable law or regulation; (g) introduce any virus or other potentially harmful or malicious software code or device into, or initiate any denial of service attack against, the Services, or use the Services in any manner that might destroy, damage, or degrade performance of any data communications facility, network, server, system, component, software, or data used to deliver the Services; (h) attempt to gain unauthorized access to, or attempt to interfere with or compromise the normal functioning, operation, or security of, any portion of the Services; (i) access the Services for purposes of monitoring availability, performance, or functionality, or for any other benchmarking or competitive purposes; or (j) use the Services to store or transmit any (i) financial information or (ii) protected health information as defined by the Health Insurance Portability and Accountability Act of 1996, unless expressly agreed otherwise in writing by Panacea.
2.04 Data Ownership. Subscriber and Panacea agree that Subscriber retains all ownership rights to the Subscriber Data (including any Intellectual Property Rights). Subscriber grants Panacea a limited-term license to use, copy, store, transmit, create derivative works of, and display the Subscriber Data as appropriate for Panacea to provide and ensure proper operation of the Services in accordance with this Agreement.
2.05 Data Sharing Functionality. The Services may include the capability for Subscriber, at its option and in its sole discretion, to share certain Subscriber Data with other subscribers of Panacea, and to access data from other subscribers of Panacea. If Subscriber consents to share Subscriber Data through the Services, Subscriber acknowledges and agrees that: (1) sharing of Subscriber Data is made solely at Subscriber’s own discretion and risk; and (2) Panacea has no control over, and will have no liability for, any acts or omissions of any other subscriber of Panacea with respect to Subscriber's sharing of Subscriber Data. Subscriber may revoke its consent to share Subscriber Data at any time by contacting Panacea. When Subscriber accesses data from other subscribers of Panacea, Subscriber acknowledges that Fist Healthcare has no liability for such data or Subscriber’s use of such data.
2.06 Retention of Data. Panacea will store Subscriber Data in its (or its contractors') databases for the Subscription Term. Panacea provides Subscriber the ability to export available Subscriber Data at any time in the Services. Subscriber is responsible for exporting Subscriber Data from the Services prior to termination or expiration of this Agreement. Thereafter, Panacea will have no obligation to maintain or provide any Subscriber Data.
2.07 Subscriber Responsibilities. Subscriber is responsible for (a) Users’ compliance with this Agreement;
(b) obtaining all necessary rights, releases, and consents to allow Subscriber Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Panacea the rights set out in this Agreement; (c) the accuracy, content, and legality of all Subscriber Data; (d) using commercially reasonable efforts to prevent unauthorized access of the Services, and notifying Panacea promptly of any such unauthorized access or use of the Services; and (e) using Services and Service Content only in accordance with this Agreement.
2.08 Subscriber Affiliates. Upon notice to Panacea, Subscriber may allow its Affiliate (each, a “Subscriber Affiliate”) to use the Services under the terms of this Agreement and solely for Subscriber Affiliate’s internal business purposes. In such cases, references to “Subscriber” in the applicable Order and this Agreement will be deemed references to both Subscriber and the Subscriber Affiliate. Subscriber and its Subscriber Affiliates will be jointly and severally liable for compliance with this Agreement and all Orders hereunder. As between Panacea and Subscriber, Subscriber accepts full liability for the acts and omissions of its Subscriber Affiliates and will ensure that the Subscriber Affiliate has entered into a Business Associate Agreement with Subscriber.
2.09 Feedback. If Subscriber or User provides Feedback, Panacea may use and include such Feedback to improve the Services or for any other purpose. Panacea will own all right, title and interest in and to any such Feedback, and Subscriber hereby assigns all right, title, and interest in and to all Feedback to Panacea. Panacea has no obligation to use Feedback.
2.10 System Requirements. Panacea and Subscriber agree that Subscriber is responsible for obtaining and maintaining any equipment, supported browser software, internet access, and adequate bandwidth necessary to access the Services.
2.11 Hosting Services.
(a) Panacea agrees to maintain or cause to be maintained the computer hardware and software required to reliably operate the Services. However, the Services may be inaccessible or inoperable for any reason, including: (i) equipment or hardware malfunctions; (ii) periodic maintenance procedures or repairs that Panacea may undertake; or (iii) a Force Majeure Event.
(b) The Services offered by Panacea are subject to change and limitation at Panacea's sole discretion.
2.12 Payment for Services.
(a) Panacea will provide the Services for the Fees in the aggregate amount of (i) one-time registration fee; and (ii) User Fee. A description of the Fees is set forth in the Order. User Fee will be pre-paid on an annual basis, unless otherwise noted on the Order. After the first year, Subscriber will continue to pay the applicable User Fee on an annual basis.
(b) Upon acceptance of this Agreement, Subscriber will pay to Panacea the Fees as set forth in an Order. Upon request from Panacea, Subscriber will provide to Panacea a valid credit card or electronic check payment with authorization for Panacea to charge automatic recurring payments to allow Subscriber continued access to the Services during the Subscription Term.
(c) All payments are nonrefundable, and there will be no refunds or credits for partially used periods, or unused periods. Subscriber will be responsible for any foreign transaction fee or related charges applied by Subscriber’s credit card issuer or bank. Subscriber will bear responsibility for maintaining a valid payment source on file and for notifying Panacea in writing of any changes to the payment source. If Subscriber is paying Fees using a credit card or any digital payment method supported by Panacea, Subscriber authorizes Panacea to continue charging Subscriber’s account for the Services using that payment method until notified of an alternative payment method. Any notice from Subscriber changing its billing account will not affect charges Panacea
submits to Subscriber’s billing account before Panacea reasonably can act on Subscriber’s request.
(d) Only Users for whom Subscriber has paid the required User Fees may access and use the Services. Should the number of Users change any time during the Subscription Term, Panacea may adjust the User Fee accordingly to maintain access to the Services. Panacea will notify Subscriber of any such adjustment to the User Fee as soon as practicable.
(e) Panacea may charge Subscriber overdue payment charges on the unpaid balance from the original due date at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum interest charge allowed by law.
(f) Subscriber shall be solely responsible for paying any sales, value-added, business use, or other federal, state or local taxes relating to the Services provided by Panacea, exclusive of Panacea’s income taxes. All Fees are exclusive of taxes, and Panacea shall have the right to invoice taxes together with or separately from the fees payable by Subscriber.
2.13 Independent Contractor Status. The Parties agree that Panacea is an independent contractor in the performance of each and every part of this Agreement and nothing herein will be construed in a manner that would be inconsistent with Panacea's independent contractor status. No agent or employee of either Party will be or will be deemed to be, as a result of this Agreement, the agent or employee of the other Party, and nothing in this Agreement will be construed to make either Party an employer, directly or indirectly, of the other Party's employees under any applicable law. Panacea will be solely and entirely responsible for its acts and the acts of its employees, and Subscriber will be solely and entirely responsible for its acts and the acts of its employees. Nothing contained in this Agreement and no actions taken pursuant to this Agreement will be construed to create the relationship of principal and agent, partnership, or joint venture between the Parties.
2.14 Level and Standard of Services.
(a) Panacea will maintain or cause to be maintained the Services so that it is capable of processing data of the volume that Panacea reasonably estimates to meet the requirements of this Agreement.
(b) Panacea will implement commercially reasonable security procedures and measures (i) to protect information from theft and (ii) to prevent access by Third Parties to the internal data of the Services.
(c) Panacea will comply with all applicable laws, rules and regulations in providing the Services.
(d) Panacea is not a law firm and does not provide legal advice; no attorney-client relationship is formed by Subscriber’s use of the Services. Should Subscriber require legal advice, Panacea recommends that Subscriber seek the assistance of a licensed attorney.
2.15 Training Plus. This Section applies only in the event Subscriber orders the Training Plus Add-on Service. Subscriber is solely responsible for ensuring compliance with all applicable laws and regulations relating to Subscriber’s use of Training Plus. Subscriber may add a maximum of five (5) training modules through the Services for purposes of tracking employee training. Each training module is limited to a maximum file size of 1GB and training modules in the form of a video must be in MPEG4 format. Each training module may be accompanied by a ten-question quiz. Any Subscriber Data You provide as part of this Add-on Service, including files, training modules and documents, is hosted through Amazon Web Services and is subject to the Acceptable Use Policy, https://aws.amazon.com/aup/. Subscriber may cancel Training Plus upon providing Panacea written notice at least sixty (60) days prior to the end of the then-current Subscription Term. Any files, documents and other materials provided in connection with Training Plus are not available for export.
ARTICLE III - TERM AND TERMINATION
3.01 Term. This Agreement is effective as of the date Subscriber first accepts it (“Effective Date”) and continues until expiration or termination of all Subscription Terms as permitted in this Agreement.
3.02 Subscription Term. Unless otherwise specified in an Order, the initial term (“Initial Term”) of the Subscription Term shall commence on the Effective Date and continue, in full force and effect, for a period of one (1) year and will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either Party gives written notice of termination to the other Party at least sixty (60) days prior to the end of the then-current Subscription Term. Should the Parties agree to change an Order for Services, the Subscription Term will automatically reset to the effective date of such applicable Order. Upon each Renewal Term, the fees due by Subscriber shall be the same fees charged in the prior year plus an adjustment of 5%. Notwithstanding the foregoing, Panacea may revise the Subscription Fee at each Renewal Term; however, should the adjustment be greater than 5%, Panacea will issue advance notices not less than thirty (30) days before expiration of the then-current Subscription Term.
3.03 Suspension. In the event of any breach or threatened breach of this Agreement by Subscriber or User (including non-payment of fees), without limiting Panacea’s other rights and remedies, Panacea may immediately suspend Subscriber’s and Users’ access to the Services.
3.04 Effect of Termination. Upon termination or expiration of this Agreement (including all related Orders), all rights and licenses granted by a Party under the Agreement immediately terminate, and Subscriber and its Users will immediately cease use of the Services and Service Content. Termination will not relieve Subscriber of any obligation to pay Fees due for periods prior to termination. The following Sections and Articles will survive any expiration or termination of this Agreement: Article I, 2.02, 2.03, 2.04, 2.06, 2.09, 2.12, 2.13, 3.04, Article IV, and Article V.
3.05 Remedies For Default. If either Party fails to perform or otherwise defaults in the performance of any
of its material obligations under this Agreement (the "Defaulting Party"), the other Party (the "Non-Defaulting Party") may deliver written notice to the Defaulting Party specifying the nature of such failure or default and stating that the Non-Defaulting Party intends to terminate this Agreement (including all related Orders) if such failure or default is not cured within ten (10) Business Days of delivery of such written notice. If any failure or default so specified is not cured within such ten (10) Business Day period, the Non-Defaulting Party may elect to immediately, or after a longer period that the Non-Defaulting Party designates, terminate this Agreement. Such termination will be effective upon the delivery of written notice of termination from the Non-Defaulting Party to the Defaulting Party, or the later date designated by the Non-Defaulting Party, and will be without prejudice to any other remedy that may be available to the Non-Defaulting Party.
ARTICLE IV – INDEMNIFICATION & LIABILITY
(a) Subscriber will indemnify, defend, and hold harmless, and hereby releases and forever discharges Panacea, its Affiliates, and its respective current and former directors, officers, employees, and agents (individually, a "Panacea Indemnified Person," and collectively, the "Panacea Indemnified Persons"), from and against any and all suits, claims, and proceedings by third parties resulting in liabilities, obligations, damages, costs, losses and expenses incurred by Panacea, including court costs and reasonable attorneys’ fees (collectively “Losses”), arising out of, due to, or in connection with: (i) Subscriber’s or User’s use of the Services or Service Content in a manner not permitted under this Agreement; (ii) Subscriber Data; and/or (iii) Subscriber or User’s violation of any applicable law, rule, or regulation.
(b) If Subscriber fails to appoint an attorney within ten (10) business days after being notified or becoming aware of any such claim or action, whichever is earlier, Panacea will have the right to select and appoint an attorney and the reasonable cost and expense thereof will be paid by Subscriber.
(c) Notwithstanding the foregoing, Subscriber may not, without Panacea Indemnified Persons prior written consent, settle, compromise, or consent to the entry of any judgment in any such commenced or threatened claim or action, unless such settlement, compromise, or consent: (i) includes an unconditional release of the Panacea Indemnified Persons from all liability arising out of such commenced or threatened claim or action; and (ii) is solely monetary in nature and does not include a statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Panacea Indemnified Person or otherwise adversely affect any Panacea Indemnified Person.
Disclaimer; Limitation of Liability. THE SOFTWARE, SERVICES, AND SERVICE CONTENT ARE OFFERED ON AN "AS IS" BASIS WITHOUT GUARANTEE, AND PANACEA DOES NOT GUARANTEE THAT THE SOFTWARE, SERVICES, OR SERVICE CONTENT WILL MEET SUBSCRIBER'S REQUIREMENTS; THAT IT WILL OPERATE IN THE COMBINATIONS, OR IN THE EQUIPMENT, SELECTED BY SUBSCRIBER; OR THAT ITS OPERATION WILL BE ERROR-FREE OR WITHOUT INTERRUPTION. PANACEA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, ACCURACY, DATA OR SYSTEM INTEGRITY, AVAILABILITY, TIMELINESS, COMPLETENESS, OR NON-INFRINGEMENT. PANACEAAND ITS AFFILIATES WILL NOT BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR ANY CLAIM OR DEMAND OF A SIMILAR NATURE OR KIND, WHETHER ASSERTED BY SUBSCRIBER AGAINST PANACEA OR AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF PANACEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PANACEA'S ENTIRE AGGREGATE LIABILITY FOR DAMAGES (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), IF ANY, IN CONNECTION WITH THE USE OF THE SOFTWARE, SERVICES, OR SERVICE CONTENT, WILL NOT EXCEED THE FEES PAID BY SUBSCRIBER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
ARTICLE V - MISCELLANEOUS
5.01 Notices. Any notice, demand, certificate, claim, or other communication under this Agreement will be in writing and will be deemed to be sufficiently given: (i) one Business Day after being sent by nationally recognized overnight delivery service to the Party’s address; (ii) three (3) Business Days after being sent by registered mail, return receipt requested, to the Party’s address; or (iii) one Business Day after being sent by email to the Party’s email address. In addition, Panacea may provide notice to Subscriber by posting a notice through the Services or on the Panacea website, which will be effective upon posting. Panacea’s address for notices is 444 Cedar Street, Ste 920, St Paul, MN 55101, and its email address for notices is email@example.com. Subscriber’s physical and email addresses for notices are those associated with its Order(s). Either Party may change its address(es) for notice by providing notice to the other Party in accordance with this Section.
5.02 Headings. The descriptive headings in this Agreement are for convenience only and are not intended to be part of, or to affect the interpretation of, this Agreement.
(a) Any and all information that is not generally known to the public and is exchanged between the Parties in connection with this Agreement, including but not limited to Service Content, specifications regarding the Services or its functionality, Orders, trade secrets, and information, of a technical, business or legal nature, will be considered confidential ("Confidential Information"). Each Party agrees that Confidential Information will not be disclosed to any Third Party, other than such Party's directors, officers, employees, attorneys, accountants, IT and software consultants and similarly situated agents without the express written consent of the other Party.
(b) Each Party will take reasonable measures to protect the disclosure of Confidential Information by its directors, officers, employees, attorneys, accountants, and other agents and will assume responsibility that its employees, sublicenses, and assignees will similarly preserve this information against Third Parties.
(c) Confidential Information will not include any information: (i) that is or becomes part of the public domain through no fault of the Party disclosing such information; (ii) that is obtained from Third Parties who are not bound by confidentiality obligations; (iii) that is required to be disclosed by law, court order, or by a regulatory or administrative body; provided however that before making such disclosure, the Party required to make such disclosure will give the other Party reasonable prior written notice of the disclosure; or (iv) that is independently developed by the Party receiving such information as evidenced by written records.
(d) Panacea may use and disclose data relating to Subscriber’s and User’s use of the Services in an aggregated and anonymous manner to compile statistical, performance, and other information related to the provision and operation of the Services, provided that such information does not incorporate Subscriber Data in a non-anonymous manner and/or identify Confidential Information.
5.04 Severability. Any portion or provision of this Agreement that is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining portions or provisions of this Agreement in such jurisdiction or, to the extent permitted by law, rendering that or any other portion or provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction.
5.05 Assignment. This Agreement and the rights and obligations hereunder may not be assigned by either Party to any Third Party without the express written consent of the other Party (not to be unreasonably withheld), provided that a Party may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity without written consent. Any attempted assignment in breach of
this section will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
5.06 Governing Law; Venue. This Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Delaware, and all rights and remedies will be determined under such laws, without regard to principles of conflict of laws. Any legal action or proceeding arising under or relating to this Agreement will be brought exclusively in the state or federal courts located in New Castle County, Delaware, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts
5.07 Counterparts. This Agreement may be executed in any number of counterparts, each one of which will be an original and all of which will constitute one and the same document. This Agreement may be executed by electronic signature, whether digital or encrypted, or click-through acceptance and that any such electronic signature will be binding with the same force and effect as manually executed signatures. The Parties hereby forever waive any and all rights and claims that any such signatures are invalid or that they do not bind such Party to the Agreement.
5.08 Remedies of Parties Cumulative. The remedies of the Parties contained in this Agreement are cumulative with one another and with any other remedies that the Parties may have at law, in equity, under any other agreements of any type or otherwise, and the exercise or failure to exercise any remedy will not preclude the exercise of that remedy at another time or of any other remedy at any time.
5.09 No Third-Party Beneficiaries. This Agreement is not intended and will not be construed to be for the benefit of any Third Party or any Person not a party hereto (other than a Panacea Indemnified Person, or a successor or a permitted assignee of a Party).
5.10 Entire Agreement; Modification. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or oral agreements and understandings between the Parties with respect to the subject matter hereof. Panacea may modify this Agreement at any time by notifying Subscriber by email, through the Services, or through Panacea’s website. Together with notice, Panacea will specify the effective date of such modifications. Subscriber’s use of the Services after the effective date of any modifications to the Agreement constitutes Subscriber’s acceptance of the modified terms. This Agreement may not be modified by Subscriber except by a written document executed by both Parties.
5.11 Consents. Whenever this Agreement requires the consent of one Party to the other, no such consent will be deemed validly given unless the Party whose consent is required evidences such consent in a written document specifically referencing this Agreement and the particular matter(s) with respect to which the consent is given.
5.12 Waiver. Waiver by either Party of any breach of or failure to comply with any provision or term of this Agreement by the other Party will not be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other breach of, or failure to comply with, any other provision or term of this Agreement.
5.13 Force Majeure. Neither Party will be liable or responsible to the other Party for any delay or failure to perform its obligations under this Agreement (except payment obligations) arising from a Force Majeure Event. The affected Party will use reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
5.14 Authority and Noncontravention. Each Party represents and warrants that:
(a) It possesses all necessary authority and power to execute this Agreement,
(b) This Agreement will be binding and enforceable against each Party; and
(c) Entering into this Agreement will not contravene any other agreement or right of a Third Party.
5.15 Protected Health Information and Personally Identifiable Information. The Parties represent that either the Protected Health Information (“PHI”) and/or the Personally Identifiable Information “(PII”) that is uploaded by Subscriber cannot be marketed or sold without the express, written consent of the individual patient. The Parties further acknowledge that Exhibit A (Business Associate Addendum) has been read and agreed to regarding the privacy and security of PHI and/or PII.