Sikka Software Corporation
Software License Agreement for Sikka Platform Cloud (“SPC”)
Please read this software license agreement (“License”) carefully before downloading, installing or using the SPC. By clicking “I agree”, you are agreeing to be bound by the terms of this License. If you do not agree to the terms of this License, click “disagree,” “decline” or the similar words and do not download, install or use the software.
- General. The Sikka and any third party software and any documentation accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the “SPC”) are licensed, not sold, to you by Sikka Software Corporation (“Sikka”) for use only under the terms of this License, and Sikka reserves all rights not expressly granted to you. The terms of this License will govern any software upgrades provided by Sikka that replace and/or supplement the original SPC product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
- Permitted License Uses and Restrictions.
- A. Subject to the terms and conditions of this License, you are granted a limited, nonexclusive license to install and use the SPC. You may not make the SPC available over a network where it could be used by multiple computers at the same time. You may make one copy of the SPC in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. One license is for up to three providers.
- B. You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of the SPC, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the SPC). Any attempt to do so is a violation of the rights of Sikka and its licensors of the SPC.
- Transfer. You may not rent, lease, lend, redistribute or sublicense the SPC. You may, however, make a one-time permanent transfer of all of your license rights to the SPC to another party, provided that: (a) the transfer must include all of the Sikka SPC software, including all its component parts, original media (if any), printed materials and this License; (b) you do not retain any copies of the SPC, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Sikka SPC software reads and agrees to accept the terms and conditions of this License.
- Consent to Use of Data.
A. Diagnostic and Usage Data. If you opt in to diagnostic and usage collection, you agree that Sikka and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the SPC, and to verify compliance with the terms of this License. Sikka may use this information, as long as it is collected in a form that does not personally identify you, to provide and improve Sikka’s products and services.
B. Remote Login Authorization. In connection with its provision of technical support, training and other services, you agree that Sikka may remotely log-in to your computers, devices and systems for purposes of providing the support, training or other services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to the provider or the provider’s personnel. Remote login may be conducted through the use of established, secure, HIPAA-compliant third party entities. You further agree that Sikka may also remotely log-in at any time as necessary or appropriate to maintain the software and keep it functioning effectively.
C. Remote Update Permission. You agree that Sikka may automatically check the version of its software that you are utilizing and may provide updates or upgrades to its software remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems.
D. Permission for Data Gathering. You agree that Sikka is allowed to create an aggregated data set for uses such as industry benchmarking reports. This information is created without revealing specific patient information. Sikka aggregates and uses this data in order to develop industry benchmarks and for other reasons in furtherance of its business and you hereby consent to such practices and Sikka creating a limited data set from your data, provided that information that could be used to identify specific individuals is not revealed.
E. In order for Sikka to gather accurate data, you agree to keep powered on during the services runtimes that you specify, all of your computers on which the SPC is installed. Additionally, your practice management software must always be accessible by the SPC. The computer on which the SPC is installed must always be online. You must also add the SPC to the “allowed” list of programs so that your firewall and anti-virus software programs do not block the SPC Software’s run time. It is your responsibility to contact Sikka if you are upgrading or changing your computer systems.
- Sikka Portal and other Services.
A. This software enables access to Sikka’s Portal, if available, which offers downloads of an app store and other Sikka and third party services and web sites (collectively and individually, “Services”). Use of the Services requires Internet access and use of certain Services may require a Sikka ID, may require you to accept additional terms of service and may be subject to additional fees.
B. By using this software in connection with a Sikka ID or account, you agree to the applicable terms and
conditions for that account. If you do not agree to the applicable terms and conditions for such an account, do not use the SPC.
C. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party web sites. By using the Services, you acknowledge and agree that Sikka is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Sikka, its officers, and its affiliates do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. You agree that you will not use any Third Party Materials in a manner that would infringe or violate the rights of any other party, and that Sikka is not in any way responsible for any such use by you.
D. You agree that the Services, including, but not limited to, software, information, graphics, audio clips, and content, contain proprietary content, information, and material that is owned by Sikka and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Sikka. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Sikka is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
E. Sikka makes no representation that the Services and Materials are appropriate or available for use. To the extent you choose to use or access the Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Sikka and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Sikka be liable for the removal of or disabling of access to any such Services. Sikka may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
- Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from Sikka if you fail to comply with any term(s) of this License. Upon the termination of this License, you must cease all use of the SPC and destroy all copies, full or partial, of the SPC. Sections 4, 5, 6, 7, 8, 11 and 12 of this License shall survive any such termination.
- Disclaimer of Warranties.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SPC AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
THE SPC AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SIKKA AND SIKKA’S LICENSORS (COLLECTIVELY REFERRED TO AS “SIKKA” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SPC AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
SIKKA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SPC AND SERVICES, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY THE SPC WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SPC AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SPC OR SERVICES WILL BE CORRECTED, OR THAT THE SPC WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
YOU FURTHER ACKNOWLEDGE THAT THE SPC AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SPC OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SIKKA OR A SIKKA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
SHOULD THE SIKKA SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
- Limitation of Liability.IN NO EVENT SHALL SIKKA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF TIME, LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, LOSS OR REVENUE, LOSS OF PATIENTS, DECREASE IN PROFITABILITY, LOSS OF THE USE OF SOFTWARE OR SERVICES, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SPC OR SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SIKKA SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) AND EVEN IF SIKKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SIKKA’S MAXIMUM LIABILITY FOR DAMAGES UNDER THIS LICENSE IS LIMITED TO THE AMOUNTS PAID TO SIKKA IN THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE LIABILITY.
The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
- Export Control. You may not use or otherwise export or re-export the SPC except as authorized by United States law and the laws of the jurisdiction in which the Sikka Software was obtained. In particular, but without limitation, the SPC may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the SPC, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the SPC for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
- Government End Users. The SPC and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
- Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the SPC licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of any additional terms and conditions you are required to accept if you choose to use Sikka’s online portal which will govern your use of the portal and any Services you purchase through the portal. No amendment to or modification of this License will be binding unless in writing and signed by Sikka.
- Open Source. Any open source software that may be provided as part of or in connection with the SPC is licensed under the terms of the applicable third party open source license, which can be found in any applicable “README” file, documentation or other materials accompanying the SPC (the “Open Source Terms”). Copyrights to the Open Source Software are held by copyright holders indicated in the Open Source Terms. Any terms of this License that conflict with the terms of any license agreements for Open Source Software will not apply to such Open Source Software.
HIPAA Business Associate Terms Addendum
Client is a “Covered Entity” as defined in 45 CFR §160.103; Sikka Software Corporation is, with respect to Client, a “Business Associate” as defined in 45 CFR §160.103; and Sikka Software Corporation may receive PHI (as defined below) from Client. The parties acknowledge that in carrying out obligations under the Services Agreement, Sikka Software Corporation, and its subcontractors, employees, affiliates, agents, or representatives may have reason to access, use, create, maintain or transmit PHI for or on behalf of Client. Certain PHI may be transmitted by or maintained in electronic media as Electronic PHI. The parties agree to comply with any applicable federal or state law governing the privacy and security of the PHI and Electronic PHI including, without limitation, HIPAA and the HITECH Act as defined below, in accordance with the Services Agreement and this Addendum (the “Addendum”).
DEFINITIONS. Capitalized terms used, but not otherwise defined, in this Addendum shall have the same meaning as those terms in the Services Agreement or applicable regulation.
“Breach”, as it relates to information, has the same meaning as the term “breach” in Section 13400 of the HITECH Act.
“Designated Record Set” has the same meaning as the term “designated record set” in 45 CFR §164.501.
“Electronic PHI” has the same meaning as the term “electronic protected health information” in 45 CFR §160.103, limited to the information created or received by Sikka Software Corporation from or on behalf of Client.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, as each may be amended from time to time.
“HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009.
“Individual” has the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
“Nonpublic Personal Information” has the same meaning as the term “nonpublic personal information” in 15 USC Subchapter 1 §6809.
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
“PHI” has the same meaning as the term “protected health information” in 45 CFR §160.103, limited to the information created or received by Sikka Software Corporation from or on behalf of Client.
“Required By Law” has the same meaning as the term “required by law” in 45 CFR §164.103.
“Secretary” means the Secretary of the Department of Health and Human Services or his designee.
“Security Rule” means the Security Standards at 45 CFR Part 160 and Part 164.
“Unsecured PHI” has the same meaning as the term “unsecured protected health information” in Section 13402(h) of the HITECH Act.
- BUSINESS ASSOCIATE AGREEMENT UNDER HIPAA.This Section 1 applies to the extent that (a) Client is a “Covered Entity” as defined in 45 CFR §160.103; (b) Sikka Software Corporation is, with respect to Client, a “Business Associate” as defined in 45 CFR §160.103; and (c) Sikka Software Corporation receives PHI from Client.
- 1.1. Obligations and Activities Of Business Associate. As a Business Associate, Sikka Software Corporation shall have the following obligations:
(a) Sikka Software Corporation agrees to not use or disclose PHI other than as permitted or required by the Services Agreement or as Required By Law. Except as otherwise limited in the Services Agreement, Sikka Software Corporation may use or disclose PHI to perform functions, activities, or services for, or on behalf ofClient as specified in Services Agreement,provided that such use or disclosure would not violate the Privacy Rule if done by Client or the minimum necessary policies and procedures of Client of which Sikka Software Corporation has been informed.
- (b) Sikka Software Corporation agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by Services Agreement, including the implementation of administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic PHI as required by the Security Rule.
- (c) Sikka Software Corporation agrees to mitigate, to the extent practicable, any harmful effect that is known to Sikka Software Corporation of a use or disclosure of PHI by Sikka Software Corporation in violation of the requirements of the HIPAA requirements.
- (d) Sikka Software Corporation agrees to report to Client any use or disclosure of the PHI that it becomes aware of that is not provided for by the Services Agreement. Further, Sikka Software Corporation agrees to notify Client of any Breach of Unsecured PHI of which it becomes aware and otherwise comply with the notification requirements set forth in Section 13401 of the HITECH Act.
- (e) Sikka Software Corporation agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by Sikka Software Corporation on behalf of, Client agrees to the same restrictions and conditions that apply to Sikka Software Corporation through the Services Agreement with respect to such information.
- (f) Sikka Software Corporation agrees to make its internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received by Sikka Software Corporation on behalf ofClient available to the Secretary, at a reasonable time designated by the Secretary, for purposes of the Secretary determining Client’s compliance with the Privacy Rule.
- (g) Sikka Software Corporation agrees to document such disclosures of PHI and information related to such disclosures as would be required for Client to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528.
- (h) Sikka Software Corporation agrees to provide to Client or an Individual, in time and manner agreed by the parties, information collected in accordance with Section 1(g) of this Addendum, to permit Client to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528.
- (i) Sikka Software Corporation agrees not to exchange any PHI of an Individual for remuneration except as permitted in Section 13405(d)(2) of the HITECH Act.
If, in the performance of its obligations set forth in Sections 1(f) through 1(h) above, Sikka Software Corporation expends time and materials, Sikka Software Corporation will provide Client with an estimate of the fee for such time and materials. Following agreement by the parties as to such fees, Sikka Software Corporation will invoice Client, and Client shall pay Sikka Software Corporation such fees.
Except as otherwise limited in theServices Agreement, Sikka Software Corporation may (i) use PHI for the proper management and administration of the Sikka Software CorporationServices or to carry out the legal responsibilities of Sikka Software Corporation, and (ii) disclose PHI for the proper management and administration of the Services, provided that disclosures are Required by Law, or Sikka Software Corporation obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidential and 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 Sikka Software Corporation of any instances of which it is aware in which the confidentiality of the information has been breached.
- 1.2. Obligations of Covered Entity. Client shall have the following obligations:
- (a) Client shall use the encryption features in the Services to encrypt any and all PHI that is provided to Sikka Software Corporation. In addition to the indemnification obligations set forth in the Services Agreement, Client shall defend and indemnify Sikka Software Corporation from and against any damages and costs arising from or relating to the failure of Client to encrypt the PHI.
- (b) Client shall notify Sikka Software Corporation of any limitation(s) in its notice of privacy practices of Client in accordance with 45 CFR §164.520, to the extent that such limitation may affect Sikka Software Corporation’s use or disclosure of PHI.
- (c) Client shall notify Sikka Software Corporation of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Sikka Software Corporation’s use or disclosure of PHI in providing the Services.
- (d) Client shall notify Sikka Software Corporation of any restriction to the use or disclosure of PHI that Client has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect Sikka Software Corporation’s use or disclosure of PHI in providing the Services.
- (e) Client shall not request Sikka Software Corporation to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Client.
- 1.3. Term and Termination
- (a) Term. The term of this Addendum shall be effective as of the Effective Date and shall terminate when all of the PHI provided by Client to Sikka Software Corporation, or created or received by Sikka Software Corporation on behalf of Client, is destroyed or returned to Client, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section.
- (b) Termination for Cause. In addition to any termination rights set forth in the Services Agreement and the Terms and Conditions, if Sikka Software Corporation materially breaches the HIPAA Business Associate Terms, Client may terminate the Services if Sikka Software Corporation fails to cure such breach within thirty (30) days after receiving written notice of such breach or immediately terminate the Services if cure is not possible.
- (c) Effect of Termination.
- (i) Except as provided in Section 1.3(c)(ii) below, upon termination of this Addendum, for any reason, Sikka Software Corporation shall return or destroy all PHI received from Client, or created or received by Sikka Software Corporation on behalf of Client in accordance with the terms of the Services Agreement and the Terms and Conditions. This provision shall also apply to PHI that is in the possession of subcontractors or agents of Sikka Software Corporation. Sikka Software Corporation shall retain no copies of the PHI.
- (ii) In the event that Sikka Software Corporation determines that returning or destroying the PHI is infeasible, Sikka Software Corporation shall provide to Client notification of the conditions that make return or destruction infeasible. If the return or destruction of PHI is infeasible, Sikka Software Corporation shall extend the protections of this Addendum 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 Sikka Software Corporation maintains such PHI.
- (d) Termination Upon Change In Law. If the Secretary provides guidance, clarification or interpretation of HIPAA or the HITECH Act or there is a change in HIPAA or the HITECH Act such that the service relationship between Sikka Software Corporation and Client is not considered a Business Associate relationship as defined in HIPAA, this Addendum shall terminate and be null and void.
- 1.4. Miscellaneous
- (a) Regulatory References. A reference in this Agreement to a section in a regulation means the section as in effect or as amended.
- (b) Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Client to comply with the requirements of HIPAA.
- (c) Survival. The respective rights and obligations of Sikka Software Corporation under this Addendum shall survive the termination of this Agreement.
- (d) Interpretation. Any ambiguity in this Addendum shall be resolved to permit Client to comply with HIPAA.