BY AGREEING TO THESE HEALTHENTIC INC. POPULATION HEALTH DASHBOARD™ SPARK VERSION TERMS AND CONDITIONS OF USE (this “AGREEMENT”), YOU ARE CREATING A LEGALLY BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU (referred to throughout this Agreement as “EMPLOYER” or “AUTHORIZED USER”) AND HEALTHENTIC INC. (referred to throughout this Agreement as “HEALTHENTIC”). PLEASE READ THIS AGREEMENT CAREFULLY. BY USING OR ACCESSING THE POPULATION HEALTH DASHBOARD™ SPARK VERSION DATABASE AND SOFTWARE (THE “SPARK VERSION”), USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. USER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY USER. THIS AGREEMENT IS ENFORCEABLE AGAINST USER AND ANY PERSON OR ENTITY THAT OBTAINED ACCESS TO THE POPULATION HEALTH DASHBOARD™ SPARK VERSION AND ON WHOSE BEHALF IT IS USED. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, USER MAY NOT USE, ACCESS OR VIEW THE POPULATION HEALTH DASHBOARD™ SPARK VERSION.

1. Agreement.  By accepting these Population Health Dashboard™ Spark Employer Access Terms and Conditions (the “Spark Terms”), Employer acknowledges:

1.1 Broker of Record.  Employer’s agent designated in writing to represent and manage the [medical] insurance [policy/policies] of such Employer (its “Broker of Record” or “Broker”) has provided Employer with access to the Healthentic Population Health Dashboard™ web-based software product Spark version (the “Spark Version”), in accordance with these terms and conditions and any terms contained on any other log-in page (or “click-through”) to the Spark Version. 

1.2 Authorized Users Only.  Access is limited to “Authorized Users”, which means the employees, associates and agents Broker designates to have access to the Spark Version, up to a specified maximum number, with the names and other identifying information of such individuals provided to Healthentic prior to access being granted. Employer agrees that Broker shall have the authority to designate the Authorized User(s) of Employer, with Employer able to designate additional Authorized Users if Broker grants Employer such authority. Broker and Employer shall coordinate such that all users given access to the Spark Version may properly access such data in compliance with HIPAA and any other applicable privacy laws. Broker and Employer shall be responsible for ensuring any access is lawful and appropriate.

1.3 Termination.  Employer’s access to the Spark Version will terminate effective immediately in the event that Broker ceases to be the Broker of Record. Broker, Employer or Healthentic may terminate this agreement with 30 days’ notice. Until such termination, Employer will be granted access to certain Spark Version reports based upon aggregated statistical (modeled) data (the “Modeled Reports”). Employer acknowledges that the Spark Version does not contain or analyze Employer’s actual insurance policy claims data.

1.4 No Protected Health Information to be Submitted. Absent another agreement including a HIPAA Business Associate Agreement and other protections, Employer will not submit, and will not allow its Authorized Users to submit, any “Protected Health Information” or “PHI” as such terms are defined in 45 C.F.R. § 160.103, to Healthentic, whether through the Spark Version or otherwise. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and related regulations.

2. USE

2.1 Limited License.  Use of the Spark Version is subject to compliance with these terms and conditions as well as any further terms or conditions imposed by Healthentic or Broker with respect to Employer’s access to the Spark Version.  Healthentic hereby grants Employer (through its Authorized Users) , a limited, non-exclusive, non-transferable license (whether by merger, operation of law or otherwise, and with no right to sublicense) to access and use the Spark Version solely for Employer’s internal business purposes and not for the benefit of any other person or entity, with such access and use limited to Authorized Users designated by Broker, and subject to the maximum number of such Authorized Users determined between Broker and Healthentic.

2.2 Fees.  Unless otherwise agreement with Employer, all fees are payable by the Broker on behalf of the Employer and Employer acknowledges Broker may terminate payment of such fees, resulting in termination of the Employer’s access to the Spark Version.

2.3 Restrictions on Use.  Employer and its Authorized Users shall not, directly or indirectly, and shall not permit any other person to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Spark Version; (b) copy, modify, translate, or create derivative works based on any element of the Spark Version or any related documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Spark Version; (d) use the Spark Version for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Employer; (e) remove any proprietary notices or disclaimers from Healthentic on any reports generated from the Spark Version or from any materials furnished or made available to Employer by Healthentic; (f) publish or disclose to third parties any evaluation of the Spark Version without Healthentic’s prior written consent; or (g) use the Spark Version for any purpose other than its intended purpose.

3. EMPLOYER OBLIGATIONS.

3.1 Passwords; Security.  Employers and all Authorized Users of Employer as designated by Broker are responsible for maintaining the confidentiality of all usernames and passwords and for ensuring that each username and password is used only by the Authorized User to whom it was issued. Employer and each Authorized User is solely responsible for any and all activities that occur as a result of access to the Spark Version via the utilization of usernames or passwords issued to Employer and/or each Authorized User. Employer will notify Healthentic immediately of any unauthorized use of Employer’s data, account, usernames and passwords, or of any other breach of security with respect to the Spark Version.

3.2 Prohibited Content.  Employer and all Authorized Users of Employer shall (a) not submit, send or store data on or to the Spark Version which violates the rights of any individual or entity and (b) not upload content that contains viruses, worms, Trojan Horses, corrupted files, or any other harmful code or data.

4. OWNERSHIP. 

4.1 Spark Version.  All right, title and interest in the Spark Version service and product, any other Healthentic materials furnished or made accessible hereunder, all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Employer or its Authorized Users regarding the Spark Version (collectively, “Feedback”), including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Healthentic or its licensors and providers, as applicable. Except for the express licenses granted in Section 2 (Use), and the restrictions contained in that Section, there are no licenses granted to Employer, express, implied or by way of estoppel. All rights not explicitly granted in this Agreement are reserved by Healthentic.

4.2 All Rights Retained by Healthentic.  All right, title and interest in the Modeled Reports, and all intellectual property rights therein and in the Spark Version, belong to and are retained solely by Healthentic.

4.3 Warranty Disclaimer.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALTHENTIC AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR SUITABILITY OF ANY PROGRAM, RECOMMENDED COURSE OF ACTION OR THIRD PARTY VENDOR SELECTION. HEALTHENTIC DOES NOT WARRANT THAT THE SPARK VERSION WILL MEET EMPLOYER’S REQUIREMENTS OR THAT THE OPERATION OF THE SPARK VERSION WILL BE UNINTERRUPTED OR ERROR-FREE.

5. NO LIABILITY. IN NO EVENT SHALL HEALTHENTIC OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR IF DAMAGES, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO USE OF THE SPARK VERSION, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF HEALTHENTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. No Guarantee of Health or Other Results.  Healthentic shall not be liable for (a) any action or failure to act by Employer, Authorized Users, patients or others as a result of the action plans or recommendations obtained utilizing the Spark Version or (b) any action or failure to act by any “wellness vendor”, service provider or other third party recommended, listed in or presented through the Spark Version, if any; rather, Employer, Authorized Users, and each patient or other person is responsible for determining the suitability of any course of action and any selection of third party providers. Healthentic does not guarantee the results of any program or suggested action plan and is not dispensing medical, business or other advice.

7. MARKETING.  Healthentic may use Employer’s name as part of a general list of customers and may refer to Employer as a user and customer of the Spark Version in its general advertising and marketing materials.

8. Employer HRA Terms and Conditions

By accessing the Healthentic Health Risk Assessment Module you (the Broker and/or Employer) agree to:
Comply with all terms of the Healthentic Population Health Dashboard™ Spark Terms and Conditions of Use as well as the below provisions.

Use the Health Risk Assessment (HRA) forms completed by individuals solely for the intended purpose of evaluating the overall health of the subscribers of the medical plan sponsored by Employer and their dependents covered by such plan (each a “Member” and collectively, the “Members”).

Indemnify and hold Healthentic harmless for any mis-use of the HRA Module, the HRA or any data provided in response to the HRA.
Make no attempt to reconstruct information, or to combine any information, in an effort to identify respondents to the HRA or to identify the HRA information provided by any particular individual(s).
Not download or attempt to capture Member responses to the HRA that are provided to Healthentic via an input screen accessible through an Internet browser.

Not take action against any Member as a result of such individual’s responses to the HRA or such individual’s decision not to participate in the HRA. It is understood that Employer may condition certain rewards on participation in the HRA.

By accessing the HRA Module you, the Employer or Broker, also acknowledge that:
Healthentic is not responsible for the validity or accuracy of the responses provided by individuals responding to the HRA.
Healthentic will aggregate individual responses to the HRA for the purpose of providing information on the overall health and wellness of the Members but will not provide you with the HRA responses from any individual.  Employer/Broker agrees not to request Healthentic provide any information in an effort to identify any individuals who have responded to the HRA other than to indicate whether an HRA has been submitted for purposes of the Employer providing rewards based upon participation in the HRA.
Due to the nature and structure of the HRA, you will not be able to access or see responses from any individual.  You will see only aggregated data.  Healthentic reserves the right to not provide you with any information (even in aggregated form) for which the population reporting certain conditions, responses, traits or co-morbidity factors is small, with such determination made in Healthentic’s sole discretion.