At FieldWorker we value you as a customer and provide you with transparency, flexibility, and control.
Our BAA, Terms of Service documents clearly outline everything you need to know about your business relationship with FieldWorker once you sign up.
Software as a Service (SaaS) Subscription Agreement
Thank you for using FieldWorker. By using FieldWorker, you agree to our Terms of Service, which is a legal agreement. If you are using FieldWorker for an organization, you are agreeing on behalf of that organization. Our Terms of Service apply to your use of our Websites and Services.
This Software as a Service (SaaS) Subscription Agreement is a binding agreement made between Intellisight Technology Inc. (“FieldWorker”) for the product “FieldWorker”, and you, the Licensee (“You”, “Your”, “Licensee” or “Customer”), and governs Your use, under license, of certain FieldWorker software and access to certain FieldWorker services according to the terms and conditions set forth below. All components, or terms and conditions, contained in this Agreement are integral to the Agreement and Licensee consents to all of these terms and conditions. All components of this Agreement collectively are referred to herein as the “Agreement”. By accessing or using the Software and Services, you acknowledge that You have read and understand this Agreement, that You accept all of the terms and conditions contained here in full, and that You agree that the terms and conditions shall be fully and legally binding upon the Parties, without the need for any further indication of acceptance on Your part (such as by signature, click through or other means of electronic acceptance). If You are acting on behalf of a Licensee, you represent that You have full legal authority to bind the Licensee. FieldWorker recommends that Licensee print copies of the Agreement for Licensee’s own records and future reference.
Your access and/or use of the FieldWorker Software or Services shall constitute Your acceptance of all of the terms and conditions set forth in this Agreement.
This Agreement is effective immediately upon your using the product which constitutes acceptance of the License & Pricing Schedule listed at https://www.fieldworker.ai/pricing (“Effective Date”).
“Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with FieldWorker. “Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity.
“Agreement” shall mean this Software as a Service (SaaS) Subscription Agreement and any exhibits, schedules, addenda in connection with FieldWorker’s Software or Services.
“Customer” shall mean the Licensee under this Agreement who is authorized to sign this Agreement & the Pricing and terms & conditions in this agreement.
“Customer Data” shall mean electronic data and information submitted by or for Customer for the Services.
“Documentation” shall mean the FieldWorker Reference Manual, User Manual, Guides or any other software or services support documentation supplied by FieldWorker.
“License & Pricing Schedule” shall mean a form specifying the # of licenses & the cost hereunder that is agreed and entered into between FieldWorker and Licensee. By accepting this agreement Customer agrees that the License & Pricing Schedule shall be considered part of this Agreement and further agrees to be bound by all the terms and conditions of this Agreement. The License & Pricing Schedule is at www.fieldworker.ai/pricing
“Software” shall mean the FieldWorker proprietary set of instructions that are executed by a machine, including (without limitation), subsequent updates, enhancements, modifications and releases of the same, as well as third party software added to or used in connection with the foregoing; and all related components, templates, features, enhancements, modifications, data and related files that is used by FieldWorker to perform the Services.
“FieldWorker Materials” shall mean any software, programs, tools, systems, data or other materials made available by FieldWorker to Customer in the course of the customer’s use of FieldWorker, including but not limited to, the Software, Documentation, as well as any information, materials or feedback provided by the Customer to FieldWorker relating to the Software, Documentation.
“Web Services Account” or “WSA” shall mean any third-party cloud-based Service provider or account which Licensee maintains at one of the FieldWorker authorized cloud computing platform or web hosting service providers which hosts the FieldWorker Software, which Licensee accesses and uses under this Agreement. Any such Service Providers used or referred to you by FieldWorker are not owned or controlled by FieldWorker.
“WSA Provider” shall mean the entity providing the WSA.
“Notice Period” if not otherwise specified shall mean a period of 30 business days.“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to t
2. SaaS Services and Support
2.1 Subject to the terms of this Agreement, FieldWorker will use commercially reasonable efforts to provide Customer the Services in accordance with the services listed on https://www.fieldworker.ai.
2.2 Subject to the terms of this Agreement, FieldWorker will provide Customer with technical support as per the support tier selected. Please visit https://www.FieldWorker.ai for a complete description of those Services.
2.3 You agree that for FieldWorker to provide technical support, FieldWorker’s staff may have to represent your organization from time to time and for the purposes of troubleshooting or providing support may also need to access your organization’s account and other data in FieldWorker. This representation will be only for the purpose of providing technical support and will be to organization such as payers, data aggregators, data providers, software products or other individuals, or organizations with which your organization or FieldWorker’s software interfaces.
2.4 FieldWorker reserves the right to add, modify, discontinue, or eliminate aspect(s), features or functionality of the Service from time to time for any reason including without limitation for purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its sole discretion.
2.5 Customer may provide suggestions, ideas and/or feedback (collectively, “Feedback”) to FieldWorker or in the use of the Service or Website regarding FieldWorker Website, products, or Service. Customer agrees that FieldWorker will be free to use, irrevocably, in perpetuity and for any purpose, all Feedback provided to it by Customer and that all right title and interest in Feedback is assigned to FieldWorker. The foregoing grant of rights is made without any duty to account to customer or to any of the foregoing persons or entities for the use of such Feedback.
3. Restrictions and Responsibilities
3.1 Customer will not make any FieldWorker Software available to or for the benefit of anyone other than Customer. Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any FieldWorker Software, or use the FieldWorker Software for timesharing or service bureau purposes or otherwise for the benefit of any third party.
3.2 Customer will not directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to FieldWorker Materials; modify, translate, or create derivative works based on the FieldWorker Software (except to the extent expressly permitted by FieldWorker or authorized within the Services); or remove any proprietary notices or labels.
3.3 Customer will not use FieldWorker Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
3.4 This Agreement is subject to and conditioned upon compliance with the U.S. Export Administration Regulations, the International Traffic of Arms Regulations, country specific economic sanctions programs implemented by the Office of Foreign Assets Control, and the applicable regulations thereunder (collectively, the “U.S. Export Laws”). Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control or any other United States or foreign agency or authority. For clarity, the Customer shall be solely responsible for compliance related to the manner in or by which the Customer chooses to use the Services and Software, including the transfer and processing of any content, the provision of Customer’s content to end users, and the on-line region in which any of the foregoing occurs.
3.5 Customer represents, covenants, and warrants that Customer will use the FieldWorker Software & Services only in compliance with FieldWorker’ terms and conditions as part of this agreement and with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless FieldWorker against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Services. Although FieldWorker has no obligation to monitor Customer’s use of the Services, FieldWorker may do so, and Customer hereby authorizes FieldWorker to do so. FieldWorker may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
3.6 Customer agrees that at the time the customer Account(s) is(are) created, customer and all assigned users must select their passwords. Customer and their assigned users are responsible for maintaining the confidentiality of their respective passwords and are responsible for any damages, claims, losses or other harm resulting from any disclosure of their password, authorization of the disclosure of the password, or any person’s use of the password or the Account and those who gain access to customer’s Account or Account Name. At no time should customer respond to an online request for a password other than in connection with the log-on process to FieldWorker. Your disclosure of Your password to any other person is at your own risk. You and each of those using your Account must have separate usernames and passwords. Team Members and Users may not share user identifications and authentication passwords.
3.7 Customer owns and accepts all responsibility for any data, information, or material that Customer and its users process or submit to the FieldWorker software in the course of using the Service, including any personally identifiable information (Customer Data). Customer always retains ownership of all Customer Data. Customer, and not FieldWorker, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer is solely responsible for ensuring that any processing of Customer Data by FieldWorker and Customer via the Service is in compliance with all applicable laws. Customer shall provide notices to, and obtain any consents from, third parties as required by applicable law, rule or regulation in connection with FieldWorker’ processing of Customer Data via the Service.
3.8 Customer agrees they will not Post, display or transmit information or data, User Data, or Transaction Data, including the unauthorized use of any payment method, that violates any law, regulation or rule, or the rights of any third party including without limitation Intellectual Property Rights; Impersonate any person or entity without their consent, or otherwise misrepresent your affiliation;
Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personally identifiable information about other users without their consent;
Engage in malicious, disruptive or other conduct that impedes or interferes with other Users’ normal use of the Service; or attempt to gain unauthorized access to any other User’s Account, password or User Data, or allow more than one person to use an Account.
Customer agrees that they and their Team Members and Users will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless You, the appropriate Team Member or Users are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant FieldWorker all of the license rights granted in this Agreement. You agree that FieldWorker will have no liability for, and You agree to defend (at FieldWorker’s option), indemnify, and hold FieldWorker harmless for, any claims, losses or damages arising out of or in connection with Your use of any User Data.
3.9 Customer agrees that any documents, forms, data, claims data or reports, collectively (“Reports”) produced by FieldWorker are for Customer’s use only and if they are sent or submitted to any third party, it is the customers responsibility to ensure that these reports conform to the type, structure & format expected by the third party. Customer agrees that FieldWorker does not bear any responsibility or liability for any discrepancy that may arise between such reports as produced by FieldWorker and as expected by any third party. Furthermore, customer agrees that FieldWorker produces reports on the basis of information entered and provided by Customer, and is only acting as an agent on behalf of customer to provide such reports. Any discrepancy or errors in data submitted are the sole responsibility of the customer and FieldWorker does not bear any responsibility or liability for errors in customer entered or maintained data.
4. Confidentiality and Proprietary Rights
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of FieldWorker includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Customer includes nonpublic data provided by Customer to FieldWorker to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Proprietary Information does not include any information after 3 years following disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
4.2 Customer acknowledges and agrees that the FieldWorker Materials are and shall at all times be and remain the sole and exclusive property of FieldWorker and FieldWorker’ third party licensors, subject only to the ownership rights of such third parties in portions of the Software and the rights granted to Customer in this Agreement. FieldWorker retains all right, title and interest in and to the FieldWorker Materials. Customer does not and will not be deemed to acquire any right, title or interest therein, except as expressly granted in this Agreement. Further, Customer does not and will not be deemed to acquire any right, title or interest in any patent(s), copyrighted material, or other intellectual property, or proprietary information or data, owned by FieldWorker Corporation and /or any of its subsidiaries or affiliates.
4.3 Customer shall own all right, title and interest in and to the Customer Data as well as any data that is derived from the Customer Data and provided to Customer as part of the Services.
4.4 Notwithstanding anything to the contrary, FieldWorker shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and FieldWorker will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other FieldWorker offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth in this Agreement. FieldWorker will make no use of PHI that is not permitted by these Terms of Service, or that is prohibited by applicable law, including but not limited to HIPAA.
4.5 For purposes of complying with the requirements of HIPAA to the extent applicable, Customer and FieldWorker agree to be bound by each of the terms and provisions of the FieldWorker Business Associate Agreement, which can be found at https://www.fieldworker.ai/termsandconditions and which is incorporated in full by this reference. If any provision hereof is potentially or in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.
4.6 In the event that FieldWorker receives a subpoena, court order, or other legal request compelling the disclosure of any of your patients’ or clients’ User Data (including PHI) or any of Your data or information or any User Data, we will notify You of the existence of such subpoena, court order or other legal request prior to disclosing the PHI or other data or information or any User Data. unless ordered to not do so by a court of competent jurisdiction, requested not to do so by law enforcement, or unless our legal counsel advises us that prior notification is not required or in violation of applicable law.
4.7 FieldWorker does not guarantee that by mere use of the Software you will follow HIPAA or other applicable law, and you understand and agree that you are responsible for maintaining administrative, technical and physical safeguards necessary to ensure the confidentiality, availability, and integrity with respect to your PHI and to otherwise comply with HIPAA and other applicable law.
5. Payment of Fees
5.1 Customer and FieldWorker acknowledge and agree that payment of fees or other sums due to FieldWorker in connection with this Agreement will be handled or coordinated by or through FieldWorker or by a FieldWorker authorized payment processor. Customer will pay FieldWorker the then applicable fees described in the License & Pricing Schedule (latest pricing schedule will be made available to customer on sending a request to firstname.lastname@example.org and/or contacting a sales executive) for the Services in accordance with the terms therein (“Fees”). If Customer’s use of the Services exceeds the number of licenses selected by the Customer as set forth on the License & Pricing Schedule which requires the payment of additional fees, Customer shall be notified and will have the opportunity to acknowledge the need for license capacity to be increased. FieldWorker will bill for such increased usage and Customer agrees to pay the additional fees in the manner provided herein or as otherwise described to Customer. If Customer acknowledgement is not received within 10 business days of notification, FieldWorker shall have the right to suspend Services and/or charge the increased fees. FieldWorker reserves the right to change Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then-current renewal term, upon thirty (30) days prior notice to Customer, and Customer’s continued use of FieldWorker’ Services shall be deemed acceptance of such changes to the charged Fees or applicable charges. If Customer believes that FieldWorker has billed Customer incorrectly, Customer must contact FieldWorker, as applicable, no later than 60 days after the closing date on the first invoice in which the error or problem appeared, to receive an adjustment or credit, and FieldWorker shall not be responsible for any errors in billing not brought to its attention in accordance with this provision. Inquiries should be directed to Fieldworker’s Sales & support department.
5.2 FieldWorker will invoice Customer in accordance with this Agreement. The invoicing may be electronic, and Customer agrees to provide authorized credit card information which will be charged by FieldWorker on the due date(s). Fees are due in advance will be charged on the due date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure of Customer to pay Fieldworker’s invoices in accordance with this Agreement shall represent a breach of Customer’s obligations under this Agreement and shall entitle FieldWorker to immediately terminate Customer’s access to the Services. Customer shall be responsible for all taxes associated with Services. All prices listed exclude all sales taxes, fees, use taxes, charges, duties, levies and similar governmental charges (“Sales Taxes”) imposed on the provision of the Service and all such Sales Taxes shall be borne solely by and paid by the Customer to FieldWorker and deemed to be in addition to the fees charged in connection with the Service. Where applicable, Customer shall be responsible for all Sales Taxes and FieldWorker reserves the right to collect Sales Taxes retroactively. FieldWorker may, at any time, add new services for additional fees and charges, or prospectively modify fees and charges for existing services (including prospectively charging fees for the Service not previously charged for) on notice as provided herein. You acknowledge that it is Your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by FieldWorker and/or its processor, including ChargeBee and/or Stripe, continue to be valid and sufficient for such purposes.
6. Term and Termination
6.1 This Agreement commences on the Effective Date and continues until all Services hereunder have been terminated.
6.2 The term of this Agreement shall be as specified in the applicable License & Pricing Schedule (Appendix A). Unless otherwise specified in the License & Pricing Schedule, FieldWorker Services will be for an initial term of three years, and then continue unless selected otherwise or terminated by Customer. The Agreement automatically renews for additional one-year periods and, unless the Customer elects to opt out of such auto-renewal function, this Agreement and the Services will automatically renew for additional one-year periods on each anniversary of the Effective Date after the initial term. If Customer opts out of the term auto-renewal function, Customer may renew the Service no later than 10 business days prior to the expiration of the initial or any later Service term.
6.3 Either party may also terminate this Agreement upon 30 days written notice if the other party materially breaches any of the terms or conditions of the Agreement and fails to correct the breach or provide a plan to correct the breach within the notice period. Customer will pay in full for the Services up to and including the last day on which the Services are performed.
6.4 Upon any termination and upon Customer request, FieldWorker will make all Customer data available to Customer for electronic retrieval for a period of 30 days, but thereafter FieldWorker may delete or destroy all copies of Customer data in its systems or otherwise in its possession or control.
6.5 The following sections will survive any termination or expiration of this agreement: 3.2, 3.7, 3.8, 3.9 4, 5, 6, 7, 8 and 9.
7. Warranty and Disclaimer
7.1 FieldWorker shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Customer acknowledges that the Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by FieldWorker or by third-party providers, or because of other causes beyond FieldWorker’ reasonable control. Where reasonably possible, FieldWorker shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.2 FIELDWORKER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE PROVIDED “AS IS” AND FIELDWORKER DISCLAIMS ALL WARRANTIES OF ANY TYPE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
8. Limitation of Liability and Limitation on Damages
IN NO EVENT SHALL FieldWorker OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, EQUITY OWNERS, MANAGERS, SUBSIDIARIES, AGENTS, AFFILIATES OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE FIELDWORKER SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT FIELDWORKER MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL FIELDWORKER’s CUMULATIVE LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU FOR THE PREVIOUS 30 DAYS OF SERVICE TO FIELDWORKER. Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to You.
FURTHER, NEITHER FIELDWORKER NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, EQUITY OWNERS, MANAGERS, SUBSIDIARIES, AGENTS , AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY
COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, (II) FIELDWORKER’ DISCONTINUATION OF ANY OR ALL
ACCESS TO THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA.
LICENSEE ACKNOWLEDGES THAT THE FEES APPLICABLE FOR THE SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT FIELDWORKER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT (INCLUDING THOSE SET FORTH ABOVE IN THIS SECTION 8 AND IN SECTION 9.2 BELOW).
9.1 This Agreement and the associated FieldWorker Licenses & Services shall not be assignable by Customer without the prior, written consent of FieldWorker. Any assignment or transfer by Customer in violation of this Section will be void. This Agreement may be assigned or transferred by FieldWorker.
9.2 No Liability for Certain Delays or Failures of Performance. FieldWorker and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms, floods, or other elements of nature, blockages, embargoes, riots, cyber-attacks (including without limitation distributed denial of service attacks, malware, ransomware, and any other cyber events), acts or orders of government, acts of terrorism, or war.
9.3 If any term or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, the remaining terms and provisions shall remain in effect.
9.4 FieldWorker may modify this Agreement at any time by posting a revised version on its website and/or by otherwise notifying the Customer in accordance with Section 9.5. The modified terms will become effective upon posting or, if FieldWorker notifies the Customer by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is the Customer’s responsibility to check the referenced websites regularly for modifications to this Agreement. The current Agreement and License & Pricing Schedule, with priority being given to the License & Pricing Schedule Form, shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to FieldWorker.
9.5 Any notice, report or statement required to be given or made hereunder shall be considered properly given if sent by email, or registered or certified mail, return receipt requested, postage-paid to the respective address of each party as either of the parties shall have last furnished in writing to the other.
9.6 Customer will not, without FieldWorker’ express prior written permission, use any trade name, trademark or other identification (or any abbreviation, contraction or simulation thereof) owned or used by FieldWorker in any advertising, publicity, or marketing.
9.7 Customer grants us the right to use customer’s company name and logo as a reference for marketing or promotional purposes on our Websites and in other public or private communications with our existing or potential customers, subject to customer’s standard trademark usage guidelines. We don’t want to list you if you don’t want to be listed, so if that’s the case, please send an email to email@example.com stating that you do not wish to be used as a reference.
9.8 This Agreement shall be construed in accordance with the laws of the state of New Jersey without reference to conflict of law rules. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
9.8 Binding Arbitration, Waiver of Right of Jury Trial, and Waiver of Rights of Class, Consolidated or Representative Actions. Any dispute or claim relating in any way to the Customer’s use of the Services will be resolved by binding arbitration, rather than in court, except that Customer may assert claims in small claims court if the claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, Customer must send a letter requesting arbitration with a description of the claim to the FieldWorker legal representative with a copy to Fieldworker at the following address: FieldWorker, Intellisight Technology Inc., 12 Roszel Road, Suite B101 Princeton NJ 08540. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879, or such alternative arbitration rules to which the parties may agree. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules or as the parties may agree. FieldWorker will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The parties may agree to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial and Customer hereby acknowledges that this waiver constitutes a relinquishment of an important right and that such waiver is provided freely, knowingly, and voluntarily. Subject to Section 4, the parties agree that either may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
9.9 This Agreement and any Appendix, exhibits, attachments, or other documents related thereto (including any related License & Pricing Schedule) constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous agreements whether written or oral.
If you have any questions regarding this Terms of Service, please contact us by email at info@FieldWorker.ai or please write to the following address:
Intellisight Technology INC
12 Roszel Road, #B101
Princeton, NJ 08540
Business Associate Agreement
Intellisight Technology Inc. (“Business Associate”) has developed “FieldWorker” and provides Software as a Service (SaaS). You (“Covered Entity”) would like to use the FieldWorker service for you and your employees. Intellisight Technology Inc.( “Business Associate”) & You (“Covered Entity”) are jointly referred to as “Parties” for the purpose of this agreement.
This Agreement (“Agreement”) is made and entered into at the date and time your FieldWorker account is created and is between you (“Covered Entity”) and Intellisight Technology Inc. (“Business Associate”).
WHEREAS, Covered Entity is a “Covered Entity” as that term is defined under the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-91), as amended, (“HIPAA”), and the regulations promulgated thereunder by the Secretary of the U.S. Department of Health and Human Services (“Secretary”), including, without limitation, the regulations codified at 45 C.F.R. Parts 160 and 164 (“HIPAA Regulations”);
WHEREAS, Business Associate seeks to perform Services for or on behalf of Covered Entity, and in performing said Services, Business Associate will create, receive, maintain, or transmit Protected Health Information (“PHI”) or Electronic Protected Health Information (“ePHI”); and
WHEREAS, the parties intend to protect the privacy and provide for the security of PHI and ePHI disclosed by Covered Entity to Business Associate, or received or created by Business Associate, when providing Services in compliance with the HIPAA Act, the HIPAA regulations, the Health Information Technology for Economic and Clinical Health Act (“the HITECH Act”), and all other applicable state and federal laws, all as amended from time to time.
WHEREAS, Covered Entity is required under HIPAA to enter into a Business Associate Agreement (BAA) with Business Associate that meets certain requirements with respect to the use and disclosure of PHI.
The following terms shall have the meanings set forth below. Capitalized terms used in this BAA and not otherwise defined shall have the meanings ascribed to them in HIPAA, the HIPAA Regulations, or the HITECH Act, as applicable.
1.1. “Breach” shall have the meaning given under 42 U.S.C. § 17921(1) and 45 C.F.R. § 164.402.
1.2. “Data Aggregation” shall have the meaning given under 45 C.F.R. § 164.501.
1.3. “Designated Record Set” shall have the meaning given such term under 45 C.F.R. § 164.501.
1.4. “Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside of Business Associate or to other than members of its Workforce, as set forth in 45 C.F.R. § 160.103.
1.5. “Electronic PHI” or “ePHI” means PHI that is transmitted or maintained in electronic media, as set forth in 45 C.F.R. § 160.103.
1.6. “Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, that: (a) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and that (b) identifies the individual, or for which there is a reasonable basis for believing that the information can be used to identify the individual. “Protected Health Information” shall have the meaning given to such term under 45 C.F.R. § 160.103. Under 45 C.F.R. § 160.103, Protected Health Information includes Electronic Protected Health Information (ePHI).
1.7. “Security Incident” shall have the meaning given to such term under 45 C.F.R. § 164.304.
1.8. “Services” shall mean the services for or functions performed by Business Associate on behalf of Covered Entity pursuant to any service agreement(s) between Covered Entity and Business Associates which may be in effect now or from time to time (“Underlying Agreement”), or, if no such agreement is in effect, the services or functions performed by Business Associate that constitute a Business Associate relationship, as set forth in 45 C.F.R. § 160.103, Definition of “Business Associate.”
1.9. “Subcontractor” A subcontractor means a person or entity to whom a Business Associate delegates a function, activity, or service, other than in the capacity of a member of the Workforce of such Business Associate.
1.10. “Unsecured PHI” shall have the meaning given to such term under 42 U.S.C. § 17932(h), 45 C.F.R. § 164.402, and Federal Register documents, including, but not limited to, Federal Register document 74; Federal Register 19006 (April 27, 2009); and 78 Federal Register 5565 (January 25, 2013).
1.11. “Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination, or analysis of such PHI within Business Associate’s internal operations, as set forth in 45 C.F.R. § 160.103.
1.12. “Workforce”shall have the meaning given to such term under 45 C.F.R. § 160.103.
OBLIGATIONS OF BUSINESS ASSOCIATE
2.1. Permitted Uses and Disclosures of Protected Health Information: Business Associate shall not use or disclose PHI other than for the purposes of performing the Services, as permitted or required by this BAA, or as required by law. Business Associate shall not use or disclose PHI in any manner that would constitute a violation of Subpart E of 45 C.F.R. Part 164 if so used or disclosed by Covered Entity. However, Business Associate may use or disclose PHI (i) for the proper management and administration of Business Associate; (ii) to carry out the legal responsibilities of Business Associate, provided that with respect to any such disclosure either: (a) the disclosure is required by law; or (b) Business Associate obtains a written agreement from the person to whom the PHI is to be disclosed that such person will hold the PHI in confidence and will not use or further disclose such PHI except as required by law and for the purpose(s) for which it was disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached; and (iii) pursuant to 45 C.F.R. § 164.501, for Data Aggregation purposes for the healthcare operations of Covered Entity. To the extent that Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.
2.2. Prohibited Marketing and Sale of PHI: Notwithstanding any other provision in this BAA, Business Associate shall comply with the following requirements: (i) Business Associate shall not use or disclose PHI for fundraising or marketing purposes, except to the extent expressly authorized or permitted by this BAA and consistent with the requirements of 42 U.S.C. § 17936, 45 C.F.R. § 164.514(f), and 45 C.F.R. § 164.508(a)(3)(ii); and (ii) Business Associate shall not directly or indirectly receive remuneration in exchange for PHI, except with the prior written consent of Covered Entity and as permitted by the HITECH Act, 42 U.S.C. § 17935(d)(2), and 45 C.F.R. § 164.502(a)(5)(ii).
2.3. Adequate Safeguards of PHI: Business Associate shall implement and maintain appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this BAA. Business Associate shall reasonably and appropriately protect the confidentiality, integrity, and availability of ePHI that it creates, receives, maintains, or transmits on behalf of Covered Entity in compliance with Subpart C of 45 C.F.R. Part 164 to prevent use or disclosure of PHI other than as provided for by this BAA.
2.4 Mitigation: Business Associate agrees to 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.
2.5. Reporting Non-Permitted Use or Disclosure:
2.5.1 Reporting Security Incidents and Non-Permitted Use or Disclosure: Business Associate shall report to Covered Entity in writing each security incident or use or disclosure that is made by Business Associate, members of its workforce, or subcontractors that is not specifically permitted by this BAA, no later than three (3) business days after becoming aware of such security incident or non-permitted use or disclosure, in accordance with the notice provisions set forth herein. Business Associate shall investigate each security incident or non-permitted use or disclosure of Covered Entity’s PHI that it discovers, to determine whether such security incident or non-permitted use or disclosure constitutes a reportable breach of unsecured PHI. Business Associate shall document and retain records of its investigation of any breach, including its reports to Covered Entity under this Section 2.5.1. Upon request of Covered Entity, Business Associate shall furnish to Covered Entity the documentation of its investigation and an assessment of whether such security incident or non-permitted use or disclosure constitutes a reportable breach. If such security incident or non-permitted use or disclosure constitutes a reportable breach of unsecured PHI, then Business Associate shall comply with the additional requirements of Section 2.5.2 below.
2.5.2 Breach of Unsecured PHI: If Business Associate determines that a reportable breach of unsecured PHI has occurred, Business Associate shall provide a written report to Covered Entity without unreasonable delay, but no later than thirty (30) calendar days after discovery of the breach. To the extent that information is available to Business Associate, Business Associate’s written report to Covered Entity shall be in accordance with 45 C.F.R. §164.410(c). Business Associate shall cooperate with Covered Entity in meeting Covered Entity’s obligations under HIPAA and the HITECH Act with respect to such breach. Covered Entity shall have sole control over the timing and method of providing notification of such breach to the affected individual(s), the HHS Secretary and, if applicable, the media, as required by HIPAA and the HITECH Act. Business Associate shall reimburse Covered Entity for its reasonable costs and expenses in providing the notification, including, but not limited to, any administrative costs associated with providing notice, printing and mailing costs, and costs of mitigating the harm (which may include the costs of obtaining credit monitoring services and identity theft insurance) for affected individuals whose PHI has or may have been compromised as a result of the breach.
2.6. Availability of Internal Practices, Books, and Records to Government: Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of PHI received from, created, or received by the Business Associate on behalf of Covered Entity available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA, the HIPAA Regulations, and the HITECH Act. Except to the extent prohibited by law, Business Associate shall notify Covered Entity of all requests served upon Business Associate for information or documentation by or on behalf of the Secretary. Business Associate agrees to provide to Covered Entity proof of its compliance with the HIPAA Security Standards.
2.7. Access to and Amendment of Protected Health Information: To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity and within fifteen (15) days of a request by Covered Entity, Business Associate shall (a) make the PHI it maintains (or which is maintained by its Subcontractors) in Designated Record Sets available to Covered Entity for inspection and copying, or to an individual to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.524, or (b) amend the PHI it maintains (or which is maintained by its Subcontractors) in Designated Record Sets to enable the Covered Entity to fulfill its obligations under 45 C.F.R. § 164.526. Business Associate shall not Disclose PHI to a health plan for payment or Health Care Operations purposes if and to the extent that Covered Entity has informed Business Associate that the patient has requested this special restriction, and has paid out of pocket in full for the health care item or service to which the PHI solely relates, consistent with 42 U.S.C. § 17935(a) and 42 C.F.R. § 164.522(a)(1)(vi). If Business Associate maintains PHI in a Designated Record Set electronically, Business Associate shall provide such information in the electronic form and format requested by the Covered Entity if it is readily reproducible in such form and format, and, if not, in such other form and format agreed to by Covered Entity to enable Covered Entity to fulfill its obligations under 42 U.S.C. § 17935(e) and 45 C.F.R. § 164.524(c)(2). Business Associate shall notify Covered Entity within fifteen (15) days of receipt of a request for access to PHI.
2.8. Accounting: To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, within thirty (30) days of receipt of a request from Covered Entity or an individual for an accounting of disclosures of PHI, Business Associate and its Subcontractors shall make available to Covered Entity the information required to provide an accounting of disclosures to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.528 and its obligations under 42 U.S.C. § 17935(c). Business Associate shall notify Covered Entity within fifteen (15) days of receipt of a request by an individual or other requesting party for an accounting of disclosures of PHI.
2.9. Use of Subcontractors: Business Associate shall require each of its Subcontractors that creates, maintains, receives, or transmits PHI on behalf of Business Associate, to execute a Business Associate Agreement that imposes on such Subcontractors the same restrictions, conditions, and requirements that apply to Business Associate under this BAA with respect to PHI.
2.10. Minimum Necessary: Business Associate (and its Subcontractors) shall, to the extent practicable, limit its request, use, or disclosure of PHI to the minimum amount of PHI necessary to accomplish the purpose of the request, use, or disclosure, in accordance with 42 U.S.C. § 17935(b) and 45 C.F.R. § 164.502(b)(1) or any other guidance issued thereunder.
TERM AND TERMINATION
3.1. Term: The term of this Agreement shall be effective as of the Effective Date and shall terminate as of the date that all of the PHI provided by Covered Entity to Business Associate, created, or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy the PHI, protections are extended to such information, in accordance with Section 3.3, or on the date that Covered Entity terminates for cause as authorized in Section 3.2, whichever is sooner.
3.2. Termination for Cause: Upon Covered Entity’s knowledge of a material breach or violation of this BAA by Business Associate, Covered Entity shall either:
- Notify Business Associate of the breach in writing, and provide an opportunity for Business Associate to cure the breach or end the violation within ten (10) business days of such notification; provided that if Business Associate fails to cure the breach or end the violation within such time period to the satisfaction of Covered Entity, Covered Entity may immediately terminate this BAA upon written notice to Business Associate; or
- Upon written notice to Business Associate, immediately terminate this BAA if Covered Entity determines that such breach cannot be cured.
3.3. Disposition of Protected Health Information Upon Termination or Expiration:
3.3.1. Upon termination or expiration of this BAA, Business Associate shall either return or destroy all PHI received from, created, or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form and retain no copies of such PHI. If Covered Entity requests that Business Associate return PHI, PHI shall be returned in a mutually agreed upon format and timeframe, at no additional charge to Covered Entity.
3.3.2. If return or destruction is not feasible, Business Associate shall (a) retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities; (b) return to Covered Entity the remaining PHI that Business Associate still maintains in any form; (c) continue to extend the protections of this BAA to the PHI for as long as Business Associate retains the PHI; (d) limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible and subject to the same conditions set out in Section 2.1 and 2.2 above, which applied prior to termination; and (e) return to Covered Entity the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
4.1. Amendment to Comply with Law: This BAA shall be deemed amended to incorporate any mandatory obligations of Covered Entity or Business Associate under the HITECH Act and its implementing HIPAA Regulations. Additionally, the Parties agree to take such action as is necessary to amend this BAA from time to time as necessary for Covered Entity to implement its obligations pursuant to HIPAA, the HIPAA Regulations, or the HITECH Act.
4.2. Indemnification: Both companies/organizations (Covered Entity and/or Business Associate(s)) hereby agree to indemnify and hold harmless the other, its affiliates, and their respective officers, directors, managers, members, shareholders, employees, and agents from and against any and all fines, penalties, damage, claims, or causes of action and expenses (including, without limitation, court costs, and attorney’s fees) the companies/organizations incur, arising from violations of the HIPAA Act, the HIPAA Regulations, the HITECH Act, or from any negligence or wrongful acts or omissions, including, but not limited to, failure to perform its obligations that results in a violation of the HIPAA Act , the HIPAA Regulations, or the HITECH Act, by either company/organization or its employees, directors, officers, subcontractors, agents, or members of its Workforce.
4.3. Notices: Any notices required or permitted to be given hereunder by either Party to the other shall be given in writing: (1) by personal delivery; (2) by electronic mail or facsimile with confirmation sent by United States first class registered or certified mail, postage prepaid, return receipt requested; (3) by bonded courier or by a nationally recognized overnight delivery service; or (4) by United States first class registered or certified mail, postage prepaid, return receipt, in each case, addressed to a Party on the signature page(s) to this Agreement or to such other addresses as the Parties may request in writing by notice given pursuant to this Section 4.3. Notices shall be deemed received on the earliest of personal delivery; upon delivery by electronic facsimile with confirmation from the transmitting machine that the transmission was completed; twenty-four (24) hours following deposit with a bonded courier or overnight delivery service; or seventy-two (72) hours following deposit in the U.S. mail as required herein.
4.4. Relationship of Parties: Business Associate is an independent contractor and not an agent of Covered Entity under this BAA. Business Associate has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed, all Business Associate obligations under this BAA.
4.5. Survival: The respective rights and obligations of the Parties under Sections 3.3 and 4.2 of this BAA shall survive the termination of this BAA.
4.6 Applicable Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of the state of New Jersey (without regards to conflict of laws principles). The Parties agree that all actions or proceedings arising in connection with this BAA shall be tried and litigated exclusively in the state or federal (if permitted by law and if a Party elects to file an action in federal court) courts located in the county of Mercer.