Master Services Agreement (“MSA”)
THIS IS A BINDING LEGAL AGREEMENT. READ THIS MSA AND ALL REFERENCED DOCUMENTATION CAREFULLY. IF Client (defined herein) DOES NOT AGREE TO ANY TERMS IN THIS MSA OR REFERENCED DOCUMENTS, DO NOT SIGN THIS MSA OR USE ANY OF ENQUIRE’S SERVICES. Enquire Solutions, LLC is a Colorado Limited Liability Company registered and duly authorized to conduct business in the State of Colorado, with its principal place of business located at 7600 E. Orchard Rd., Suite 100N, Greenwood Village, CO 80111.
- TERMS AND CONDITIONS.
1.1. INCORPORATION. This MSA includes terms that are applicable to all Enquire Solutions, LLC (hereafter “Enquire,” “enquire®,” “We,” “Us” or “Our”) services whatsoever, including without limitation, all third-party software and services sublicensed to Client with permission (collectively Our “Services”) (defined herein).
1.2. PARTIES. Each of Enquire and Client may be referenced as a “party” or together as the “parties.”
1.3. ACCEPTANCE. This MSA is valid only upon mutual written acceptance of the “Enquire Proposal and Agreement” (the “EPA”), which EPA includes all business terms and Fees specific to Client and this MSA.
1.4. USER AGREEMENT. Each of Client’s End Users, who may be employees or contractors, must agree to be bound by Our then-current User Agreement prior to accessing Our Services, available at https://www.EnquireSolutions.com/User-Agreement, and incorporated into this MSA by reference.
1.4.1. If applicable, the User Agreement does not preclude Client’s Use of Services in Client’s specific technology environment and Use of Services by Client’s current and future authorized Locations (defined herein).
1.4.2. In the event We modify the User Agreement, We will provide Client with thirty (30) days’ Notice of that revised agreement prior to it becoming effective.
1.4.3. Each End User will be provided with an opportunity to review and accept the revised User Agreement on the next login after the User Agreement becomes effective. Only Clients and End Users who agree to the updated User Agreement will be granted access to Our Services.
1.5. CLIENT ASSISTANCE. Client shall use reasonable, industry-standard procedures to assist us in providing Services, including without limitation and by way of example only, making personnel, resources, and property available when requested during Regular Business Hours (defined herein) for purposes of setup, integration, and reasonable support, responding promptly to requests for information, and providing Us with any and all information in Client’s possession or control related to Our performing Services. Further, Client is solely responsible for acquiring, servicing, maintaining, protecting, and updating all hardware, equipment, computers, Internet connections, and software to allow Client access to Our Services without unreasonable interruption. In addition, Client agrees to access and Use Services in compliance with all instructions and procedures that We may provide or as We may amend or supplement from time to time.
1.6. SERVICES. Both parties shall act in a professional capacity as is reasonable and standard in the industry, and in compliance with applicable statutes, laws, regulations, and professional standards. The EPA will specify the Services selected by Client.
1.7. CONTROL AND LOCATION OF SERVICES. The method, means, and through whom We provide Services shall be under Our exclusive control, discretion, management, and supervision. Client shall ensure that it informs enquire® of its service locations for tax purposes. Services and related Data storage (1.7.1) for U.S. Clients will be provided solely from within the continental United States; and (1.7.2) for European Union or European Economic Area (“EU/EEA”) will be provided solely from within the EU/EEA. The EPA will specify the origination of Services and the location of Data storage for Clients located or residing in other countries. No Client purchase order, invoice or work order shall have any force or effect and shall not modify this MSA.
1.8. CHANGES IN FUNCTIONALITY. We may change, modify, add to, or delete (collectively “Change”) Services from time to time, provided that there is no material functionality Change to Client’s Services during the Term. Nothing in this MSA shall prohibit Us from making such Changes.
1.9. LICENSE. Subject to Client’s compliance with all terms of this MSA, We will grant Client a terminable, worldwide, non-exclusive license for internal business purposes solely to (1.9.1) access and Use mutually agreed-upon Services as specified in the EPA for their standard and intended purposes, (1.9.2) print reports and/or make copies of screen shots of Client’s Data using Our Services for standard and intended internal business purposes, and (1.9.3) Use Our provided, or approved, application programming interfaces (“API”) for their standard and intended purposes.
1.10. LIMITATIONS ON LICENSE. We do not grant any further license to access, copy, reproduce, modify, prepare, or create Derivative Works (defined herein) of, publicly display, publicly perform, sublicense, Transfer, assign exploit, or distribute Our Services in any manner, whatsoever.
1.10.1. Reasonable requests made to Client’s Enquire Account Representative to use screen shots or other copies of reports for presentations will not be unreasonably denied, provided appropriate, approved Legends are included on such copies.
1.10.2. Client shall promptly notify Us at support@EnquireSolutions.com or (855) 808-4655 of any User Agreement violation, including without limitation, unauthorized use of any login information.
1.10.3. The terms of this Section #1.10, including subparagraphs, shall survive the termination of this MSA.
- BUGS AND ERRORS. We agree to (2.1) notify the affected Client of any material bugs or errors discovered in Our Services, i.e., those errors that would cause Services to fail in their intended purpose, (2.2) provide maintenance services to the extent material errors or bugs are discovered, and (2.3) if such material errors are not capable of being repaired, We will provide Notice to Client. Failure to repair bugs or errors that are not material shall not be considered a breach of this MSA.
- INTEGRATION. We are not responsible for the migration, integration, configuration, or business process alignment of any of Our Services with Client’s existing or future systems, applications, security features, or networks unless otherwise mutually agreed upon in the EPA.
4.1. Client setup, migration, implementation, training, custom API creation, and one-time charges for new Clients are NONREFUNDABLE.
4.2. Client shall pay Fees based on the number of Software Licenses or Services as specified in the EPA or the actual number of provisioned Software Licenses or Services, whichever Fee amount is greater.
4.3. If Client requests continuation of Services after providing a timely Notice of termination and before execution of a new MSA, Client shall have the option of:
4.3.1 executing a new MSA and EPA for Services, or
4.3.2. paying one hundred fifty percent (150%) of Client’s monthly Fees in effect at the time of the Notice of Termination.
4.4. Subscription Fees due will be invoiced on the first (1st) day of the month at monthly intervals beginning on the earlier of: forty-two (42) days after execution of this Agreement if there is no Data migration requested by Client; seventy (70) days after execution of this Agreement if a Data migration is requested by Client; or on Client’s Go-Live Date. Partial months, if any, will be billed on a pro rata rate. All Fees are due upon receipt.
4.5. Client agrees to make electronic payment to enquire®. Client agrees to provide enquire® with information necessary for enquire® to receive electronic payment (“ACH”) or approved credit card from Client. Client shall ensure that payments are authorized, in an amount approved by Client and made on the date approved by Client.
4.6. Service items are purchased in advance for a specific number of hours and are NONREFUNDABLE. If Services exceed purchased hours, additional Services will be invoiced at enquire’s® standard hourly rate.
4.7. Client has thirty (30) days from receipt to contest an invoice.
4.8. Failure to pay undisputed Fees when due shall result in termination of all Services at Our option upon ten (10) days’ written Notice.
4.9. In the event of a Claim as to any Fees due:
4.9.1. If the parties are unable to resolve the Claim between themselves within ten (10) days after Our Notice to Client, either party may terminate this MSA, effective ten (10) days after written Notice provided under Section 4.8 herein. Termination will not invalidate either party’s Claim regarding Fees.
4.9.2. All undisputed Fees shall continue to be due and owing, regardless of termination.
4.10. At Our option, We may charge interest on late payments at the rate of one and one half percent (1.5%) each month, compounded monthly.
4.11. In the event a final order regarding Fees issues in Our favor, late payment and interest charges, collection charges, and attorneys’ fees and costs will be added to the amount ordered to be due, calculated from the date the disputed payments should have been originally paid.
4.12. We may increase Fees as specified in the EPA, or if not specified in the EPA, up to a maximum of five percent (5%) annually after the first calendar year. Client will receive ninety (90) days’ Notice of any Fee increase.
4.13. The EPA specifies Our current Fees.
4.14. The terms of this Section #4, including all subparagraphs, shall survive termination of this MSA.
5.1. The EPA will specify the Initial Term of this MSA. This MSA will automatically renew for one (1) year successive periods, each a Renewal Term, unless either party provides the other with no less than ninety (90) days advance notice in writing of its intent not to renew prior to the commencement of any Renewal Term, or is terminated as otherwise permitted herein.
5.2 Intentionally Omitted.
5.3. We may terminate this MSA or suspend all or any of Client’s access to Services, effective immediately upon Client’s receipt of Notice, without any cure period, if Client, or anyone under Client’s control:
5.3.1. Sublicenses or Uses Our Services, including without limitation, Licensed Software, in breach of this MSA,
5.3.2. Becomes, threatens, or resolves to become subject to any form of insolvency administration (unless We agree to an alternative arrangement in writing, which arrangement will not be unreasonably denied),
5.3.3. Violates the User Agreement,
5.3.4. Violates any confidentiality terms of this MSA (Section #10 herein) or any separate nondisclosure or confidentiality agreement executed by the parties,
5.3.5. Shares a logon ID or password with another Person except as permitted by Client Administrator and Us,
5.3.6. Disrupts Our ability to provide or monitor the Services to any Person,
5.3.7. Creates a security vulnerability or risk of Data loss to Us or others, or
5.3.8 Causes immediate, material or ongoing harm to Us or others.
5.3.9 Fails to pay any Fee when due (We may suspend Services only for this violation unless other cause for termination is permitted herein.)
5.4. Termination under Section #5.3 shall not be considered a breach of this MSA by Us or a waiver of any other of Our rights and remedies at law or in equity.
5.5. In the event a party breaches this MSA other than under Section #5.3 (including subparagraphs), or Section #4 (for nonpayment of Fees), the non-breaching party shall provide the breaching party with Notice to cure such breach. The breaching party shall have thirty (30) days from the date of such Notice to cure the breach; and if the breach is cured to the non-breaching party’s reasonable satisfaction, this MSA and the license granted herein shall remain in full force and effect. If not cured, the termination date will be the thirty-first (31st) day after receipt of the Notice to cure. In the event a breach is not fully curable within the thirty (30) day limitation, but the defaulting party makes prompt and reasonable ongoing efforts to correct such breach with Notice of its efforts to the non-breaching party, the parties will reasonably extend the cure period and termination date.
5.6. All Fees incurred, earned, or contracted for prior to the date of termination through and until the termination date shall be fully due and payable regardless of termination.
5.7. Termination of this MSA is without prejudice to, and does not affect the accrued rights or remedies of, the parties arising up to the date of termination.
5.8. The terms of Sections #5.3 and #5.4 – 5.7, including subparagraphs, shall survive termination of this MSA.
6.1. On Our own or on behalf of others, We are the sole owner of all rights, title, and interest to Services, including, without limitation, any modifications made by either party. Such ownership includes all related tangible property and Intellectual Property, whether registered or registrable. No title to, or ownership of, any such tangible property or Intellectual Property is Transferred to Client by or through this MSA except for the limited, terminable, license granted herein.
6.2. Within five (5) business days of termination for any reason, Client shall (i) return to Us all Our tangible and Intellectual Property in its possession or control, and (ii) destroy all archival or backup copies of such tangible and Intellectual Property during its standard destruction policy period, but in no event will such backup material be longer than thirty (30) days after termination. Further, Client shall certify, in writing, upon Our request, that Client has complied with this MSA and does not have possession or control of any of Our, or Our licensors’, tangible or Intellectual Property.
6.3. On behalf of itself or others, Client is the sole owner of all rights, title, and interest in its Data. No title to, or ownership of, such Data is Transferred to Us by or through this MSA other than as granted by license herein. We will destroy or anonymize all Client’s Data in Our possession or control within forty-five (45) days of termination of this MSA. Client will destroy Our Data within forty-five (45) days of termination of this MSA.
6.4. The terms of this Section #6, including subparagraphs, shall survive termination of this MSA.
- LICENSE TO ENQUIRE.
7.1. Terminable License. Client grants Us a royalty-free, terminable, world-wide license to view, copy, report on, and otherwise use Data to provide Client with Services (e.g., creating analytics, optimizing information, providing marketing automation, and for call center use) and for internal business purposes in order to improve the Services generally and perform troubleshooting and maintenance.
7.2. Non-Terminable License. Client grants Us a royalty-free, nonterminable, world-wide license to view, copy, report on, commingle, and otherwise use anonymized Data, analytics, and statistical information derived from Data (i) to improve Services generally, (ii) to perform troubleshooting and maintenance, (iii) to advertise Services, and (iv) for any commercial purposes.
7.3. Nothing herein reduces either party’s responsibilities or obligations under any U.S. Federal or state laws, rules, regulations, or orders regarding the confidentiality of personally identifiable protected personal or health information and personal information protected by applicable privacy laws.
7.4. Use of Trade Name/Trademark. Client grants Us a royalty-free, terminable, world-wide license to display Client’s trade name and/or trademarks in Our advertising to third parties to demonstrate the clients for whom We provide Services unless Client provides the Enquire Account Representative with written Notice that Client does not wish to allow such use or wishes to limit use to a particular name/mark. Client may withdraw authorization which shall be effective sixty (60) days after We receive Notice.
- LIMITATIONS ON ENQUIRE LICENSE.
8.1. We will comply with the U.S. Health Insurance Portability and Accountability Act (“HIPAA”) and related regulations and amendments. To the extent Client is a “Covered Entity” as defined by HIPAA, the Business Associate Agreement (“BAA”) attached as Exhibit A shall control.
8.2. We will treat Client’s personally-identifiable Data with the same degree of care that We treat Our own Confidential Information (See Section #10 herein) and will not utilize such Data except as permitted in this MSA and applicable law.
9.1. We take the safety and security of Our Services seriously. We will take all reasonable, industry-standard procedures to safeguard your Data. In the event We cease to carry on business, assign Our business, in whole or in part, or merge with another organization, We will make sure your Data is destroyed, or, at your election, Transferred to the successor using acceptable industry standards.
9.2. We will comply with all applicable laws regarding Data breaches or loss. To the extent We are not subject to any applicable law, Client’s sole and exclusive remedy for any loss or damage to Data, other than loss to a third party that is directly caused by Our grossly negligent or willful misconduct, will be for Us to use commercially reasonable efforts to replace or restore the lost or damaged Data from the latest backup of such Data that We have maintained in accordance with Our standard archival/backup procedures.
9.3. Client understands that it is able to maintain a backup of its Data and is permitted to download its Data at all times during its authorized use of Our Services without Our assistance.
9.3.1. During any Term, Client may request, but not more than once per month, current copies of its Data, which is in Our possession or control, in CSV format. Such Data will be provided to Client if requested and Client shall be invoiced at Our then-current standard hourly rates.
9.3.2. Within five (5) days of termination of this MSA, as long as termination is not caused by Client’s breach of this MSA, Client may request a final copy of its Data which is in Our possession or control in CSV format. Client will be invoiced, in advance, at Our then-current standard hourly rates. Such Data will be provided to Client within thirty (30) days of such request or when we receive payment, whichever is later.
9.3.3. If this MSA is terminated for Client’s nonpayment of undisputed Fees, We will have no obligation to provide Data to Client.
9.4. In the event a Person requests deletion of personal information from Client’s Data, it shall be Client’s sole responsibility and obligation to complete that removal process if required by applicable laws. In the event Client requires Our assistance for such removal, We will invoice Client at Our then-current standard hourly rates. If We receive a request for personal information removal relating to Client’s Data, We will promptly forward that request to Client.
9.5. In the event Client has elected Data storage Services (see EPA), We will provide Notice to Client by email (delivery and read receipt requested) to the Client Contact in the event such storage is full or nearing maximum storage space. In this event, Client may purchase additional storage as mutually agreed upon at Our then-current Data storage rates.
9.6. The terms of this Section #9, including all subparagraphs, shall survive termination of this MSA.
- CONFIDENTIALITY. Non-public information, regardless of form or format, that would reasonably be considered confidential under ordinary circumstances, or is identified as confidential or secret by a party, shall be treated as confidential (“Confidential Information”). Each party shall use industry-standard procedures to ensure the security and protection of the other party’s Confidential Information in its possession or control.
10.1. Confidential Information, whether or not marked as confidential, includes by way of example only and not by limitation: all Our object code and source code, Client’s personally identifiable Data, login information to access and Use the Services, both parties’ personnel information and customer and vendor lists, and Our training materials and procedures, onboarding deliverables, if any, reference guides, call procedures, and the know-how and methodologies related to Our Services.
10.2. Disclosure of Confidential Information is not precluded if such disclosure is in compliance with a valid subpoena or order of a court or other governmental body of the United States or any political subdivision thereof; provided that if a recipient (“Recipient”) of Confidential Information disclosed by the party that owns such information, or has been entrusted with such information (“Owner”), Recipient will first give advance Notice to the Owner of such Confidential Information of any such request for disclosure as promptly as feasible in order that its Owner may, at its discretion, seek a protective order or such other appropriate remedy as that Owner deems necessary. Failing entry of a protective order, if the Recipient is, in the opinion of its counsel, compelled to disclose the Confidential Information, it will disclose only that portion of the Confidential Information as is legally required without liability hereunder.
10.3. Whistleblower Provision. No individual employee or contractor of a party will be held criminally or civilly liable under any U.S. Federal or state trade secret law for disclosing a Trade Secret that: is made (i) in confidence to a U.S. Federal, state, or local government official, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (iii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If either party, or a party’s employee or contractor, files a lawsuit for retaliation for reporting a suspected violation of law, that filer may disclose Trade Secrets to the attorney and use such Trade Secret information in the court proceeding if the filer also: (a) files any document containing the Trade Secret under seal; and (b) does not disclose the Trade Secret, except pursuant to court order.
10.4. The Recipient of Confidential Information hereby acknowledges and agrees that any breach of these obligations as to Confidential Information will cause the Owner thereof to suffer immediate, irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, the parties agree that Owner is entitled to equitable relief, including injunctive relief and specific performance, against Recipient for any breach of its obligations as to Owner’s Confidential Information, in addition, and not to the exclusion of, all other remedies at law, in equity or otherwise under this MSA.
10.5. To the extent that protected health information and personally identifiable information are included in Data, the parties agree to the Business Associate Agreement (“BAA”) attached and made part of this MSA as Exhibit A.
- NO COMMINGLING OR INDUCEMENT. The parties acknowledge that Client is in the business specified in the EPA prior to the effective date of this MSA. Nothing in this MSA is intended to restrict such business. Notwithstanding, during this MSA and after its termination (anywhere in the world):
11.1. Client will not attempt to develop its business through use of any part of Our tangible property or Intellectual Property except as specifically licensed herein.
11.2. Client will not present, develop, manufacture, produce, market, sell, or provide any product or service that uses any of Our tangible property or Intellectual Property or that is specifically derived from or attributable to such property.
11.3. During the term of this MSA and for a period of three (3) years after the effective termination date (anywhere in the U.S., Canada, and the UK ), Client will not:
11.3.1. Induce or attempt to induce any Person not to purchase or use any of Our Services,
11.3.2. Solicit any of Our customers, which Persons are known by Client to be Our customers, or who are identified by name or other identifying information publicly or confidentially, for competitive products or services or
11.3.3. Induce or attempt to induce any of Our employees, managers, members, officers, independent contractors, agents, Affiliates, licensors, licensees, subsidiaries, other clients, assignees, or successors to terminate his, her, or its employment or association with Us.
11.3.4. By way of clarification, if an individual who is an employee or contractor first contacts Client regarding employment or engagement, without Client’s solicitation, directly or indirectly, or posts a resume on employment websites, Client is free to engage the services of such individual. Further, if Our customers contact Client without any solicitation, and ask such Client to provide products or services, Client is free to provide such products and/or services.
11.4. The parties agree that this Section #11, including subparagraphs, is reasonable as to time and territory and is necessary to protect Our Trade Secret Information.
11.5. The terms of this Section #11, including subparagraphs, shall survive termination of this MSA for three (3) years.
- LIMITATION OF WARRANTY AND LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS MSA:
12.1. SERVICES ARE PROVIDED “AS IS” AND CLIENT MAKES USE OF SUCH SERVICES AT ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENQUIRE AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, HEREBY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING OUR SERVICES OR OTHERWISE RELATING TO THIS MSA, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, AND ACCURACY.
12.2. ENQUIRE DISCLAIMS ANY AND ALL WARRANTIES THAT THE SERVICES ARE, OR WILL BE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. CLIENT UNDERSTANDS THAT COMPUTERS AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIOD OF DOWNTIME OCCUR. ENQUIRE AND ITS AFFILITES, LICENSORS, AND SERVICE PROVIDERS DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON’T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM COMPUTER NETWORKS.
12.3. CLIENT ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS CAUSED BY CLIENT, DIRECTLY OR INDIRECTLY, OR ORIGINATING IN CLIENT’S ENVIRONMENT.
12.4. ENQUIRE AND ITS AFFILITES, LICENSORS, AND SERVICE PROVIDERS HEREBY DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS, OR OTHER INFORMATION OBTAINED, GENERATED, OR OTHERWISE RECEIVED BY CLIENT FROM ACCESSING AND/OR USING THE SERVICES OR OTHERWISE RESULTING FROM THIS MSA.
12.5. The terms of this #12, including subparagraphs, shall survive termination of this MSA.
- LIMITATIONS ON LIABILITY.
13.1. EXCEPT AS PROVIDED HEREIN, ENQUIRE AND ANY OF ITS LICENSORS, AFFILIATES, AND SERVICE PROVIDERS, WILL NOT BE LIABLE IN ANY MANNER TO CLIENT OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES, LOST PROFITS, OR LOST REVENUE, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS INFORMATION, DATA, OR ANY OTHER LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ENQUIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF ENQUIRE’S FAULT OR NEGLIGENCE AND REGARDLESS OF WHETHER THAT NEGLIGENCE IS ACTIVE OR PASSIVE.
13.2. IN THE UNLIKELY EVENT OF ANY CLAIM AGAINST CLIENT BY ANY THIRD PARTY, ENQUIRE’S SOLE RESPONSIBILITY TO CLIENT WILL BE LIMITED TO PROVIDING EVIDENCE OF ENQUIRE’S OWNERSHIP (OR AS LICENSEE) OF THE SERVICES AND IDENTIFICATION OF THIS MSA.
13.3 IN THE EVENT THIS LIMITATION IS ADJUDICATED IN A JURISDICTION THAT DOES NOT ACCEPT SUCH LIMITATION(S), ENQUIRE’S MAXIMUM LIABILITY SHALL BE THE TOTAL OF FEES PAID BY CLIENT TO ENQUIRE DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING WHEN THE COVERED CLAIM AROSE. THIS MAXIMUM RECOVERY SHALL INCLUDE ALL COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, CLIENT’S ATTORNEYS’ FEES AND COSTS (“MAXIMUM RECOVERY”).
13.4. The terms of this Section #13, including subparagraphs, shall survive termination of this MSA.
- APPLICABLE POLICIES.
15.1. DIRECT DAMAGES. We shall only be liable for direct damages proven in a final judgment or in a written negotiated resolution of any Claim (a “Covered Claim”) between the parties up to the Maximum Recovery herein. The Maximum Recovery shall be solely the total of Fees paid by Client to Us during the two (2) months immediately preceding when the Covered Claim arose. This Maximum Recovery shall include all costs and expenses, including, without limitation, Client’s attorneys’ fees and costs.
15.2. Enquire hereby indemnifies and holds harmless Client and its employees, agents, and assigns for any liability or damages that result from claims that Client’s use of Enquire’s software infringes or violates a third-party’s intellectual property rights.
15.3. U.S. GOVERNMENT RESTRICTED RIGHTS/EXPORT RESTRICTIONS. Client shall provide use with prompt Notice of government inclusion. In the event the Services are being provided to the U.S. government or a quasi-governmental entity, the following applies:
15.3.1. SOFTWARE PROVIDED WITH RESTRICTED RIGHTS. If Services are Used on behalf of a U.S. government agency or quasi-government agency, this MSA constitutes the entire agreement between the government agency and Enquire and is binding on government End Users in accordance with the policy stated within the Federal Acquisition Regulations and Defense Federal Acquisition Regulations (e.g., at FAR Sec. 12.211 (technical data) and 12.212 (computer software) or DFAR 227.7201 and 227.7202 (for defense agencies)). Enquire’s Services are commercial items, developed at private expense, and not under a government contract. Pursuant to FAR 12.212 (for nondefense agencies) and DFARS 227.7202-1 and 227.7202-3 (for defense agencies), the government’s rights in Services, including without limitation, Licensed Software, is limited to those rights granted in this MSA.
15.4. EXPORT REPRESENTATION AND WARRANTY. Client warrants and represents that it shall not export or transmit the Services, including without limitation and by way of example only, the Licensed Software or technical data provided by Enquire, to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute without Our prior written consent and, if required, the consent of the Bureau of Export Administration of the U.S. Department of Commerce or such other governmental entity as may have jurisdiction over such export or transmission. Client agrees to indemnify and hold Enquire harmless from any Claims whatsoever, including, but not limited to, attorneys’ fees and costs, for any breach of this Section #15.4.
15.5. DISPUTE RESOLUTION. With the exception of any type Claim wherein We are entitled to seek the immediate remedy of a temporary restraining order, preliminary injunction, or such other form of injunctive or equitable relief as may be used by a court of competent jurisdiction to restrain or enjoin Client from breaching this MSA, or to specifically enforce the provisions thereof, the parties agree to attempt to resolve any Claim through negotiations between their principals within thirty (30) days of receiving Notice of an initial Claim. If multiple Claims exist, the parties agree to resolve all such Claims in the aggregate through one negotiation or proceeding. Unless otherwise agreed by separate written agreement:
15.5.1. If such principals are unable to satisfactorily resolve a Claim or Claims within sixty (60) days after receiving a Notice of Claim, the parties may then mutually agree to submit such Claim to mediation or, if mediation cannot be agreed to, such Claim(s) shall be submitted to arbitration no earlier than sixty-one (61) days after a Notice of Claim is received. The party submitting the Claim to arbitration shall provide a Notice of intent to arbitrate to the other party.
15.5.2. An impartial arbitrator (or mediator) skilled in the area of the Claim or Claims shall be chosen by Dispute Resolution Systems, a Colorado Limited Liability Company (“JAMS”) located in Denver, Colorado (https://www.JAMSADR.com) upon the request of either party with Notice to the other. Upon mutual agreement, the parties may choose an alternative Person for dispute resolution.
15.5.3. Within ten (10) business days following Notice of an intent to arbitrate, either party, or upon the parties’ mutual agreement to mediate, either party may then request that JAMS (or other selected Person) select and appoint an arbitrator (or mediator); and the parties shall jointly arrange to meet, either in person, telephonically, or electronically for an arbitration (or mediation) session in the Denver metro area.
15.5.4. The arbitrator’s decision shall be determined, without regard to any conflicts or choice of law provisions, pursuant to the laws and regulations of Colorado, except where U.S. Federal law applies, and shall rely upon the Colorado Rules of Civil Procedure and Colorado Rules of Evidence if all Claims are based on state law or Federal Rules of Civil Procedure and Rules of Evidence if Federal law applies if at least one Claim involves U.S. or foreign federal laws.
15.5.5. Should Client fail to appear at a scheduled arbitration session (or mediation session) after agreeing to the time for such arbitration (or mediation), the arbitrator shall rule in Our favor.
15.5.6. Costs for arbitration or mediation shall be shared equally by the parties. Each party, however, shall be responsible for all its attorneys’ fees and expert witness fees.
15.5.7. Each party may engage legal counsel to assist in presenting arguments to the arbitrator (or mediator) at its own sole expense.
15.5.8. Arbitration may include discovery but shall be limited to two hundred (200) interrogatories and admissions and two (2) depositions for each party.
15.5.9. The arbitrator shall have the power to set time limits on, or reduce (but not increase) the total hours of, arbitration and establish methods of attendance, such as in person, telephonically, or by video conference, at the proceeding.
15.5.10. The arbitrator shall issue a final binding decision within thirty (30) days of the final arbitration, which decision shall be fully enforceable and registrable as a judgment in all applicable jurisdictions where a party may be found.
15.5.11. Claims may only be brought on an individual, non-class, basis.
15.5.12. In the event of a successful mediation or other resolution by the principals, a mediation or settlement agreement signed by principals of both parties shall be enforceable as a contract and shall be considered a full and final resolution of the parties’ dispute as to all Claims specified in that agreement on execution.
15.5.13. The terms of this Section #15.5, including subparagraphs, shall survive termination of this MSA for a period of three (3) years.
15.6. INDEPENDENT CONTRACTORS. EACH PARTY is an independent contractor TO THE OTHER and is not an agent or representative or joint venturer with THE OTHER for any purpose, is not entitled to workers’ compensation benefits and is required to pay all state and federal taxes WITHOUT CONTRIBUTION FROM THE OTHER. Each party, personally and unconditionally, agrees to hold harmless and indemnify the other, its owners, officers, members, directors, employees, agents, Affiliates, Licensors, Locations, and its customers, from (i) any assessment of taxes, penalties, damages, liabilities and costs incurred due to a party’s failure to qualify as an independent contractor or (ii) failure to remit appropriate taxes to governmental agencies (including foreign agencies where applicable). No party shall have any right or authority to assume or create any obligation, commitment, or responsibility for or on behalf of the other except as the other may expressly authorize in writing.
15.7. WAIVER. Waiver by either party of any provision of this MSA must be in writing to be effective. Waiver of any breach of any provision of this MSA shall not constitute or operate as a waiver of breach of such provision on any other occasion nor a waiver of any breach of other provisions, nor shall failure to enforce any provision operate as a waiver of such provision.
15.8. APPLICABLE LAW/CHOICE OF LAW. This MSA shall be construed in accordance with and governed by Colorado law, except to the extent that U.S. Federal law applies, without regard to any conflict or choice of law provisions. All disputes shall be determined through the Dispute Resolution procedure herein. The parties agree that any judgment or award rendered by a mediator or arbitrator may be entered in the proper court of the Jurisdiction and such judgment shall bind the parties no matter where located or residing. No party shall contest subject matter or personal jurisdiction within the Jurisdiction.
15.9. NO THIRD PARTY BENEFICIARIES. This MSA is for the sole benefit of the parties hereto, their End Users, and their permitted successors and assigns. Nothing, express or implied, in this MSA is intended to create or be construed to create any rights of enforcement in or to any Persons who are not parties and signatories to this MSA.
15.10. NO ASSIGNMENT. Client may not assign this MSA without Our written authorization. Client’s Use of Services with all of Client’s current and future Affiliates and Locations is not an assignment requiring written authorization as long as We receive Notice of all new End Users and all Fees incurred for such Affiliates and Locations are timely paid. In the event We have a change in control or a sale of more than fifty-one percent (51%) of the shares in Our company, this MSA shall continue in full force and effect and all parties’ obligations shall be maintained.
15.11. NO NEGATIVE COMMENTS. Neither party shall do anything to injure the fine reputation of, nor make any negative comments regarding, the other party to any third party or media (including through social media postings) at any time during the term of this MSA or after its termination except in confidential discussions with legal counsel or a mediator or arbitrator. This paragraph only applies to executive or officer level (or higher) commentary made directly or indirectly that injures either party’s fine reputation or hinders the business of the other party. Notwithstanding, if a third party independently, and without solicitation from Client, contacts Client to obtain a reference regarding Our Services, Client is free to discuss its own experiences with Us and the Services. Nothing in this paragraph shall be interpreted to limit either party’s rights and remedies permitted at law or in equity.
15.12. ACCESS TO CLIENT COMPUTER SYSTEMS. We will not access Client’s computer or telecommunications systems either remotely or on-site without Client’s authorization, unless such access is to permit Us to perform Services under this MSA. By way of example, a help desk communication from Client to Us shall be considered consent to access Client’s systems.
15.13. ENTIRE AGREEMENT/NO MODIFICATION. This MSA, along with the EPA and all Exhibits referenced herein, constitutes the entire understanding and agreement of the parties with respect to the subject matter covered in it and supersedes all other prior agreements, understandings, or statements, written or oral, by or between the parties with respect to such subject matter. Notwithstanding, this MSA may be amended by alteration of the User Agreement from time to time at Our sole and exclusive discretion as long as such amendment does not materially alter the functionality of Services. Except as permitted herein, this MSA may not be modified or amended, nor may any term or provision be waived or discharged, except in writing, signed by both parties.
15.14. SEVERABILITY. The provisions of this MSA shall be deemed severable, and the invalidity, illegality, or unenforceability of any provision of this MSA shall not affect the validity or enforceability of any other provisions In the event any provision of this MSA is found to be invalid, illegal, or unenforceable, the parties (or any mediator or arbitrator) shall endeavour to modify that clause in a manner that gives effect to the intent of the parties in entering into this MSA.
15.15. EXHIBITS. Any Exhibits attached to or made part of this MSA are incorporated into this MSA and agreed upon by the parties.
15.16. SECURITY. To the extent it is reasonably able, no party shall permit third parties from obtaining any security interest in, or any lien or encumbrance of any nature upon, the other party’s (or its licensors’) Intellectual Property or tangible property, either of which is in its possession or control. Further, within five (5) business days, each party shall promptly provide Notice to the other in the event an attempt to encumber such other’s tangible property or Intellectual Property occurs or is threatened.
15.17. CLIENT LIABILITY. If multiple entities are listed as “Client,” such entities shall be jointly and severally liable to comply with this MSA and for any and all Claims made by Us for a breach of this MSA.
15.18. CLIENT INDEMNIFICATION. Client hereby indemnifies and holds Enquire harmless from any and all liability for Claims, including attorneys’ fees and costs, against Enquire (i) relating to Client’s acts or omissions alleged to have caused injury or damage to third parties or (ii) that Enquire’s use of a third party’s hardware or software or services at Client’s request to fulfill the terms of this MSA violates that third party’s tangible or Intellectual Property or other rights.
15.19. NOTICES. Any Notice, request, demand, or other communication must be in writing and shall be deemed sufficiently given upon courier, U.S. mail, or hand-delivery (i) to Us: if delivered to the authorized Enquire Account Representative with written verification of receipt, and (ii) to Client: if delivered to Client’s designated Client Contact with written verification of receipt (hereafter “Notice”). All such Notices are effective on the date of receipt. In the event the authorized contact is no longer available, and no replacement has been appointed, Notice shall be effective if delivered by the above-means to a party’s officer, executive, or registered agent. Delivery of Notices may be by courier, mail, or email provided written verification of receipt exists. Notwithstanding, Notice of changes to Our policies, procedures, or agreements that affect all Our clients and customers shall be effective by posting such Notice on Our website or at the login page for Our Services.
15.20. HEADINGS. All captions, fonts, underlining, and footers used in this MSA are for convenience only and have no meaning in the interpretation or effect of this MSA.
15.21. BANKRUPTCY/ABANDONMENT. In the event Client files for bankruptcy of any form or is unable to pay any creditor within ninety (90) days of when payment is required by such creditor, Client must provide immediate Notice of such filing or inability to pay to In the event Enquire files for bankruptcy of any form, this MSA shall continue in force until otherwise ordered by a Bankruptcy Court.
15.22.1. This MSA, including, without limitation, the EPA, the User Agreement, and any Exhibits and amendments to such documents, are not to be construed against the drafter.
15.22.2. In the event of a conflict in terms between the EPA and this MSA, the terms of the MSA shall control.
15.22.3. Anything that is prohibited from being accomplished “directly” is also prohibited from behind accomplished “indirectly.”
15.22.4. A reference to “it” is a reference to the party so referenced, regardless of whether that party is masculine, feminine, an entity, a human individual, or other.
15.22.5. Any Services referenced herein shall include, where applicable, third-party licensed software and services offered by Us.
15.23. FORCE MAJEURE. No party hereto shall be liable for damages for any delay or default in performance during any Term hereof if such delay or default is caused by conditions beyond its control, including, but not limited to, acts of God, Government restrictions, Government closure or sequester, continuing domestic or international problems such as wars, threats of terrorism, or insurrections, strikes, fires, floods, work stoppages and embargoes; provided, however, that either party shall have the right to, upon provision of written Notice to the other party, reasonably delay performance of the MSA for the period of time that any act of God stated above exists. If either party delays the MSA due to an act of God and provides Notice to the other party, the Term or Renewal Term of the MSA shall be extended for the period of time of the delay.
15.24. SIGNATURES/COUNTERPARTS. This MSA may be signed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one agreement. Further, facsimile or digital signatures shall be accepted and as valid as a hand-written signature.
15.25. CORPORATE AUTHORITY. The individuals executing this MSA on behalf of their respective parties hereby represent and warrant that they have the right, power, legal capacity, and appropriate corporate authority to execute and fulfill the terms of this MSA on behalf of the entity for which they sign.
15.26. SURVIVAL. Except where modified herein, the terms of this Section #15, including subparagraphs, shall survive termination of this MSA.
16.1. “Affiliate” of a party means, for so long as one of the following relationships is maintained, (16.1.1) any entity owned by, owning, or under common ownership with a party to this MSA or (16.1.2) another entity whereby a party has the power to vote on or direct the affairs of such other entity, or (16.1.3) any Person, firm, partnership, corporation or other entity actually controlled by, controlling, or under common control with a party.
16.2. “Agreement” or “MSA” means this Master Services Agreement, all documents referenced as included in such MSA, and any Exhibits referenced and included in such MSA.
16.3. “API” has its common meaning as an acronym for application programming interface (See Section #1.9).
16.4. “Claim” or “Claims” means any disagreement, demand, controversy, dispute, cause of action, litigation, or other legal or equitable proceeding whatsoever.
16.5. “Covered Claim” means a Claim that has been fully and finally resolved either through a final judgment or final, approved and signed written negotiated resolution between the parties’ principals on their own or with the assistance of a mediator.
16.6. “Client” means the individual or entity referenced in this MSA and includes all that party’s Affiliates, Locations, End Users, and authorized assigns. In the event “Client” references multiple parties, all references to “Client” include all such parties.
16.7. “Client Contact” shall have the meaning detailed in the EPA.
16.8. “Confidential Information” shall have its commonly understood, and broadest, meaning as provided in Section #10
16.9. “Data” means all information, including Client-owned Intellectual Property, that Client provides to Us to perform the Services and/or that information Client uploads or inputs into Our Services.
16.10. “Derivative Work” has the meaning provided by the U.S. Copyright laws as amended from time to time.
16.11. “End User” means a human individual accessing or making use of Our Services.
16.12. “Enquire” or enquire® means Enquire Solutions, LLC and includes its Affiliates, licensors, and successors.
16.13. “Enquire Account Representative” shall have the meaning detailed in the EPA.
16.14. “Enquire Proposal and Agreement” or “EPA” means the document, whether electronic or printed, entitled “Enquire’s Proposal and Agreement” which EPA is part of this MSA as if specifically included herein. The EPA includes the specific Services selected by Client as well as the Fees and expenses expected by the parties.
16.15. “enquire® CRM” means a cloud-based customer management software (CMS) and database owned by Us, with components that may be licensed to Us by third parties regardless of the title/name utilized for such software, and includes all related Intellectual Property, know-how, improvements, Derivative Works, coding, and interfaces, versions, and excludes Client Data.
16.16. “Fees” mean all charges and expenses invoiced to Client by Us, including without limitation and by way of example only, Service charges, monthly charges, migration charges, setup charges, training charges, and related expenses, all as more specifically detailed in the EPA.
16.17. “Go-Live Date” means the first business day of the Initial Term (specified in the EPA) that Services are available, in whole or in part, to Client.
16.18. “Intellectual Property” means rights in and to any and all intangible and industrial property, including, without limitation, all patents, patent applications, trademarks, trade dress, copyrights, Trade Secrets, and Confidential Information (see Section #10 herein), as well as Derivative Works and improvements thereto. By way of example, and not limitation, Intellectual Property includes (i) all designs, specifications, processes, techniques, technology, drawings, designs, strategies, methodologies, presentations, prototypes, computer programs, models, marketing plans, and inventions that are the result of creativity, (ii) proprietary information or Confidential Information, ideas, concepts, and know-how, and (iii) publicity and privacy rights, all of (i), (ii) and (iii) in any form or format and whether or not registered or registrable, and including all rights to related applications and registrations.
16.19. “Jurisdiction” (where capitalized) means the county in which We have Our principal place of business, including the court system(s) located in that county as well as the closest U.S. Federal Court in Colorado should U.S. Federal laws apply.
16.20. “Legends” means any copyright or other proprietary Notices, disclaimers, or other statements appearing on, or in connection with, Our Services.
16.21. “Licensed Software” means all software, whether in source code, object code, reconfigurable binary, script, or any other form, and related documentation, manuals, or instructions that We provide to Client by license or sublicense, as well as all updates, bug fixes, repairs, and Maintenance Releases that are provided to Clients generally without additional charge. Licensed Software does not include any new versions or modules for which We charge an additional fee without the parties’ mutual written additional agreement.
16.22. “Location” means any business, community, or facility under Client’s operation or control or wherein Client and such Location have executed a contract for Client to provide operations’ management, sales assistance, or other services, including without limitation and by way of example only, senior centers, multi-family housing, nursing facilities, hospice homes, visiting health-care services, and commercial real estate sales.
16.23. “Maintenance Release” means any update, upgrade, release or other adaptation, or modification of Licensed Software, that We may generally provide to all Clients from time to time, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality.
16.24. “Notice” shall have the meaning specified in Section #15.19.
16.25. “party” or “parties” means either Client or Enquire or both (when used in the plural) as well as all such parties’ Affiliates and Locations, who are bound by this MSA.
16.26. “Person” means an entity or human individual.
16.27. “Regular Business Hours” means Monday through Friday, 8am to 5pm (using Enquire’s time zone), excluding national holidays, including, without limitation, New Year’s Eve, New Year’s Day, Martin Luther King Jr.’s Birthday, President’s Day, Memorial Day, Independence Day, Easter, Labor Day, Thanksgiving, the day after Thanksgiving, Christmas Eve and Christmas Day.
16.28. “Services” means all products and services We offer and/or provide, or may offer or provide in the future, to Clients generally on Our own or through others. The EPA will specify Services selected by Client.
16.29. “Term” means the duration of this MSA. The EPA will specify the time-period of the Initial Term. Any subsequent Term is a “Renewal Term.”
16.30. “Trade Secret” means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value. To be a “trade secret” the Owner thereof must have taken measures to prevent the secret from becoming available to Persons other than those selected by the Owner to have access thereto for limited purposes.
16.31. “Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise, or descent, or other disposition of any kind, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings, or general assignments for the benefit of creditors, whether voluntary or by operation of law.
16.32. “Use” or “Used”, as to Our Services has its normal and generally understood meaning, and permits utilization of such Services by Client for normal, intended, and contracted-for purposes. “Use” or “Used” as to Licensed Software, more particularly, means viewing or displaying such software by an authorized End User. Use includes transmitting such software to hardware to process information contained therein. Use does not permit Transfer except as permitted in this MSA or mutually agreed upon in writing.
16.33. The Definitions in this Section #16, including subparagraphs, shall survive termination of this MSA.
BY EXECUTING THIS MSA CLIENT REPRESENTS AND WARRANTS, SWEARS, AND AFFIRMS THAT CLIENT HAS FULLY READ AND UNDERSTANDS THIS MSA AND ALL DOCUMENTS REFERENCED HEREIN, AS IF FULLY SET FORTH IN THIS MSA, AND AGREES TO ALL SUCH TERMS AND CONDITIONS.
Updated July 14, 2021
EXHIBIT A: BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (the “BAA”) is by and between Client (“Covered Entity”) and Enquire Solutions, LLC (“Business Associate”) and is effective during Enquire’s Master Service Agreement (“MSA”). This BAA is only effective where Client qualifies as a “Covered Entity” and Enquire as a “Business Associate” under HIPAA (defined below) as amended by the HITECH Act (defined below).
WHEREAS, Covered Entity is a Senior Service Provider;
WHEREAS, Business Associate provides Services as specified in the MSA to or on behalf of Covered Entity. In the course of obtaining the Services from Business Associate, it is necessary for Covered Entity, from time to time, to provide Protected Health Information (“PHI”), as such term is subsequently defined herein, to Business Associate;
WHEREAS, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), and their associated regulations, specifically, 45 CFR §§160, 162 and 164, Standards for Privacy of Individually Identifiable Health Information, Final Rule (the “Privacy Rule”) and Health Insurance Reform: Security Standards, Final Rule (the “Security Rule”) (collectively referred to as “HIPAA/HITECH”), require Covered Entity to ensure that Business Associate will appropriately safeguard PHI and use, and, if necessary, disclose PHI only as necessary to provide the Services for Covered Entity, consistent with its engagement by Covered Entity and applicable law; and
WHEREAS, Business Associate is directly subject to the Final Security Rule to the same extent as Covered Entity, may use and disclose PHI only in compliance with the terms of this BAA, and is subject to the privacy subtitle of the HITECH Act to the same extent as Covered Entity by operation of this BAA.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the worth and sufficiency of which as legal consideration are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
- For the purposes of this BAA, all capitalized terms not defined herein shall have the meanings defined in the HIPAA Rules, as may be amended from time to time and otherwise as defined in the MSA.
b. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR §160.103, and in reference to this BAA, shall mean Enquire.
c. “Breach” shall mean the unauthorized acquisition, access, use, or disclosure of Unsecured PHI that compromises the security or privacy of such information. A Breach shall not include: (1) any unintentional acquisition, access, or use of PHI by a Workforce member or person acting under the authority of Covered Entity, Business Associate or Subcontractor, if such acquisition, access, or use was made in good faith and within the scope of authority, and the PHI was not further acquired, accessed, used, or disclosed; (2) any inadvertent disclosure by a person who is authorized to access PHI at Covered Entity, Business Associate, or Subcontractor to another person authorized to access PHI at the same entity, or at an organized health care arrangement in which Covered Entity participates, and the information received as a result of such disclosure is not further acquired, accessed, used, or disclosed; or (3) a disclosure of PHI where Covered Entity or Business Associate has a good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information.
d. “Electronic Protected Health Information” (“EPHI”) is PHI that is maintained in electronic media or transmitted by electronic media. EPHI is a subset of PHI.
e. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR §§160, 162 and 164, as applicable.
f. “Information System” shall mean an interconnected set of information resources under the same direct management control that shares common functionality. A system normally includes hardware, software, information, data, applications, communications, and people.
g. “Protected Health Information” (“PHI”) shall have the meaning given to such term in 45 CFR §160.103., limited to the information created or received by Business Associate from or on behalf of Covered Entity.
h. “Security Incident” shall mean the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
i. “Unsecured PHI” means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary, as is required by §13402(h)(2) of the HITECH Act.
j. “Workforce” shall mean employees, volunteers, trainees, and other persons whose conduct, in the performance of work for Covered Entity, Business Associate, or Subcontractor, is under the direct control of such entity, whether or not they are paid by Covered Entity, Business Associate, or Subcontractor.
- Term and Termination.
- Term. The Term of this BAA shall be effective as of the Effective Date of the MSA and shall terminate when all of the PHI provided by Business Associate to Subcontractor, or created or received by Subcontractor on behalf on behalf of Covered Entity, is destroyed or returned to Business Associate, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions of this Section #2.
b. Termination. Business Associate authorizes termination of this BAA by Covered Entity if Covered Entity determines that there has been a material breach by Business Associate. Upon violation of a material term of this BAA by Business Associate, Covered Entity may either:
- Provide a ten (10) day opportunity for Business Associate to cure the breach or end the violation and, if Business Associate does not cure the breach or end the violation within the ten (10) day period, Covered Entity may terminate this BAA and any other agreement between Covered Entity and Business Associate pursuant to which Business Associate provides the Services to Covered Entity;
2. If Business Associate has breached a material term of this BAA and cure is not, in Covered Entity’s reasonable determination, possible, Covered Entity may immediately terminate this BAA and the agreement between Covered Entity and Business Associate pursuant to which Business Associate provides the Services to Covered Entity;
3. Upon any breach of this BAA that results in termination of this BAA, Covered Entity may pursue all rights and remedies available under this BAA or the MSA;
4. If neither termination nor cure is, in Covered Entity’s sole determination, feasible, Covered Entity shall report the violation to the Secretary of the U.S. Department of Health and Human Services (“Secretary”).
- Return of PHI. Except as provided in paragraph 1. below of this Section, upon termination of this BAA for any reason, Business Associate shall return or destroy all PHI received from Covered Entity or created or received by Business Associate on behalf of Covered Entity. This provision shall also apply to PHI that is in the possession of subcontractors or agents of Business Associate. Neither Business Associate nor any subcontractor or agent of Business Associate shall retain copies of the PHI.
- If Business Associate reasonably determines that returning or destroying the PHI is infeasible (such as when retention of PHI is required for archival purposes to evidence the Services provided), Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Upon Covered Entity’s written confirmation that return or destruction of PHI is infeasible, Business Associate may retain the PHI that is not feasible to return for so long as it remains infeasible to return such PHI. In such event, Business Associate shall extend the protections of this BAA to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.
2. The provisions of this Section shall survive termination of this BAA.
- Obligations of Business Associate and Covered Entity.
- Business Associate shall comply with the use and disclosure provisions of the Privacy Rule in performing its obligations under any agreement for services with Covered Entity and shall not use or disclose PHI other than as permitted or required under this BAA or as required by Law.
b. Business Associate shall implement and use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this BAA.
c. Business Associate shall implement administrative, physical, and technical safeguards as are reasonable and standard in the industry to protect the confidentiality, integrity, and availability of EPHI that it creates, receives, maintains, or transmits on behalf of Covered Entity, and to otherwise comply with the Final Security Rule in performing Business Associate’s obligations under this BAA.
d. Business Associate shall use reasonable efforts as are standard in the industry to secure PHI to make it unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary in its annual guidance issued under §13402(h) of the HITECH Act, codified at 42 USC §17932(h).
e. Business Associate shall mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of the requirements of this BAA.
f. Business Associate shall, pursuant to 42 USC §17932, and without unreasonable delay, report to Covered Entity any use or disclosure of PHI not provided for by this BAA of which it becomes aware, including, but not limited to, any Security Incident and any unauthorized acquisition, access, use, or disclosure of PHI.
g. Business Associate shall develop policies and procedures to both detect and report Breaches of PHI to the Covered Entity. Copies of such policies and procedures shall be made available to the Covered Entity upon the Covered Entity’s Request.
h. Business Associate shall, following the discovery of a Breach of PHI, notify Covered Entity of such Breach.
- Business Associate shall provide initial Notice of the Breach without unreasonable delay and as required by 42 USC §17932 after the discovery of the Breach. A Breach shall be treated as discovered as of the first day on which the Breach is known to the Business Associate or, by exercising reasonable diligence, would have been known to the Business Associate. Business Associate shall be deemed to have knowledge of a Breach if the Breach is known, or by exercising reasonable diligence, would have been known, to any person, other than the person committing the Breach, who is an employee, officer, or other agent of Business Associate.
2. The initial Notice shall include, to the extent possible, the identification of each individual whose PHI has been, or is reasonably believed by the Business Associate to have been, accessed, acquired, or disclosed during such Breach. Business Associate shall use reasonable efforts as are standard in the industry to collect and provide to Covered Entity as soon as reasonably possible any such information that Business Associate is unable to provide in the initial Notice.
3. Business Associate shall, following notification to Covered Entity of a Breach of PHI, cooperate with Covered Entity in providing any and all information reasonably required for Covered Entity to comply with the breach notification provisions of HITECH (42 USC §17932), the implementing regulations set forth in Subpart D of 45 CFR §164 (more specifically, 45 CFR §164.400 et seq.), any other State or Federal applicable breach notification laws and regulations, and any other breach notification obligation Covered Entity may have pursuant to any other agreement.
- Business Associate agrees to make any reasonable amendment(s) to PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR §164.526 at the request of Covered Entity or an individual, and in the time and manner designated by the Covered Entity.
j. Business Associate shall enter into legally binding agreements with each of its subcontractors and agents to ensure that any subcontractor agent to whom Business Associate provides PHI received from, or created or received by, Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this BAA to Business Associate with respect to such information.
k. Business Associate agrees to provide access to Covered Entity, in the time and manner reasonably designated by the Covered Entity, to PHI in a Designated Record Set, or, as directed by Covered Entity, to an individual in order to meet the requirements of 45 CFR §164.524.
l. For purposes of the Secretary determining Covered Entity’s compliance with the Final Privacy Rule and Final Security Rule, Business Associate shall make available to the Secretary, in a time and manner designated by the Secretary, its internal practices, books, and records (including policies and procedures), relating to the use and disclosure of PHI received from, or created or received by, Business Associate on behalf of Covered Entity.
m. Business Associate shall document disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with the individual’s right to receive such accounting under 45 CFR §164.528.
n. Business Associate shall provide to Covered Entity or an individual, information collected in accordance with this BAA, to permit Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with the individual’s right to receive such accounting under 45 CFR §164.528.
o. Business Associate is required to comply with an individual’s restriction request, except as otherwise required by law, if it is to a health plan for payment or health care operations and pertains to a health care item or service for which the health care provider was paid in full “out of pocket” by the individual.
p. Business Associate and its agent(s) and subcontractor(s) are prohibited from directly or indirectly receiving any remuneration in exchange for an individual’s PHI unless the individual provides a valid authorization.
q. Covered Entity shall comply with all U.S. Federal and State statutory and regulatory requirements to maintain and protect PHI and shall, to the extent applicable, similarly comply with all provisions required of Business Associate in this BAA as if Covered Entity were specified therein.
- Permitted Uses and Disclosures by Business Associate.
- Except as otherwise limited by this BAA, Business Associate may use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
b. Except as otherwise limited by this BAA, Business Associate may disclose PHI for the proper management and administration of the Business Associate, provided that disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it shall remain confidential and be used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
c. Except as otherwise limited by this BAA, Business Associate may use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 CFR §164.504.
d. Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR §164.502(j).
- Notice. Whenever, under the terms of this BAA, written Notice is required or permitted to be given by one party to the other party, such Notice shall be governed by the MSA with the exception of Notice required under Sections #3.f and #3.h of this BAA regarding unauthorized disclosure of PHI or a Breach. Such Notice shall be by electronic mail to Covered Entity’s Security Officer, whose contact information is specified in the EPA of the MSA. Such Notice shall also be followed by overnight delivery of written Notice.
- Business Associate shall not be responsible for Covered Entity’s misuse of PHI or violation of HIPAA/HITECH or any related U.S. Federal or state laws or regulations.
b. All terms of the MSA shall apply equally to this BAA, however, terms of this BAA related to PHI supersede the MSA.
c. This BAA shall not create nor be deemed to create any relationship between Covered Entity and Business Associate other than that of independent contractors contracting with each other solely for the purpose performing the agreement pursuant to which Business Associate provides the Services to Covered Entity. Neither Covered Entity nor Business Associate shall assume or be responsible for the acts, omissions, liabilities, debts, or other obligations of the other party.
d. Nothing herein is intended to change Business Associate’s obligations from the HIPAA/HITECH act. Any ambiguity or contradiction in this BAA or between this BAA and the HIPAA/HITECH Act is inadvertent and shall be resolved in accordance with the requirements of the HIPAA/HITECH Act.
e. Notwithstanding anything to the contrary in this BAA, nothing herein shall be construed to require Business Associate to take any action, the consequence of which could reasonably be foreseen to result in the waiver or loss of any legal right or ethical obligation of either Covered Entity or Business Associate to keep any information confidential.
f. The terms of this Section #6 shall survive termination of the MSA.
EXHIBIT B: ENQUIRE’S EMAIL POLICY
This Email Policy (“Policy”) applies to all email and other communications (“Email”) generated or sent through the Services.
BY GENERATING OR SENDING EMAIL THROUGH THE SERVICES, YOU AGREE TO COMPLY WITH THIS POLICY. WE MAY SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE SERVICES IF YOU DO NOT COMPLY WITH THIS POLICY.
Your use of the Services must comply with all applicable laws. This includes laws applicable to you and also laws applicable to Us and the recipient of each Email. Examples of applicable laws include laws relating to spam or unsolicited commercial email (UCE), privacy, security, obscenity, defamation, intellectual property, pornography, terrorism, homeland security, gambling, child protection, and other applicable laws. It is your responsibility to know and understand the laws applicable to your use of the Services and the Emails you generate and send through the Services.
Your use of the Services must comply with the MSA. This Policy is a part of and incorporated into the MSA. It is your responsibility to read and understand the MSA applicable to your use of the Services and the Emails you generate and send through the Services.
Your use of the Services must follow all applicable guidelines established by Us. The guidelines below are examples of practices that may violate this Policy when generating or sending Emails through the Services:
- Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from you by affirmatively opting-in to receive those Emails).
- Using purchased or rented Email lists without appropriate permission.
- Using third-party email addresses, domain names, or mail servers without proper permission.
- Sending Emails to non-specific addresses (e.g., email@example.com or firstname.lastname@example.org).
- Sending Emails that result in an unacceptable number of spam or UCE complaints (even if the Emails themselves are not actually spam or UCE).
- Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from your mailing list.
- Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request.
- Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email.
- Failing to include in each Email your valid physical mailing address or a link to that information.
- Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
Enquire Contact Information
CRM, Marketing Automation and Contact Center Solutions for Senior Living and Healthcare
7600 E. Orchard Rd
Greenwood Village, CO 80111
General Inquiries: 844.682.4563
Sales Team: 866.365.6619
Enquire Email Contact and Service Information:
Home – https://alineops.com/
Enquire CRM – https://alineops.com/senior-living/crm-software/
Contact Center – https://alineops.com/senior-living/contact-center/
Integration Partners – https://alineops.com/about-us/integrations-security/
Schedule A Demo – https://alineops.com/book-demo/
Enquire Help Desk – https://support.enquiresolutions.com/hc/en-us