Last Updated August 7, 2023
These Builder Terms of Service, the Zus Policies, the Zus BAA, and any other policies, terms or conditions which apply to the Builder Services and the Zus Platform (collectively, the “Builder Terms”) govern your use of the Builder Services and the Zus Platform and your participation in the Zus Network. You represent to Zus that you have the authority to bind your legal entity to the Builder Terms. As such, “you”, “your” or “Builder” refers to you and that organization. Please read these Builder Terms carefully because they are a binding agreement between you and Zus Health, Inc. (“Zus”, “our”, “us”, “we”).
YOUR USE OF THE BUILDER SERVICES AND THE ZUS PLATFORM CONSTITUTES YOUR ACCEPTANCE TO THESE BUILDER TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE BUILDER TERMS, YOU SHOULD NOT USE THE BUILDER SERVICES OR THE ZUS PLATFORM.
Capitalized terms not otherwise defined have the meaning provided in Section D below (“Definitions”).
- GENERAL TERMS
- Introduction to Zus.
- Using the Zus Platform & Participating in the Zus Network. The Zus Platform enables you to use the Builder Services, including to develop and provide Applications on the Zus Platform, and to interact and share data with other Participants in the Zus Network, including Patients, health care providers, and Service Partners.
- Scope of Terms. The Builder Terms establish rules, conditions and requirements for your use of the Builder Services and also for how you interact with, share data with, access data from, and otherwise collaborate with Participants in the Zus Network.
- Changes to the Builder Terms. We may make changes to these Builder Terms from time to time. Unless we note otherwise, changes to these Builder Terms become effective 30 days after they are posted. Notwithstanding the foregoing, we may make changes to the Builder Terms effective immediately to comply with Applicable Law or as necessary to support new functionality. Notwithstanding the foregoing, in the case of changes to the Zus BAA, we may only make changes if permitted by HIPAA or Applicable Law, which will take effect 90 days after they are posted. If you do not accept the changes to the Builder Terms, you must stop using the Builder Services and the Zus Platform.
- Account Terms.
- Creation of Builder Account. Builders must create a Builder Account to use the Builder Services. Registration for a Builder Account will require you to participate in Zus’ Verification Process described in subsection (b) below.
- Verification Process. Prior to your use of the Builder Services and access to the Zus Platform and the Zus Network, we require you to participate in our Verification Process. This Verification Process may include requests for information about your legal entity, your Affiliates, and the services you provide to Your Users. You authorize our service providers and other third parties to disclose, and for us to retrieve, information about you, including but not limited to, credit reporting agencies and information bureaus. You acknowledge that our information requests may include your name, address, and other data about you or your representatives. You acknowledge that we may use your information to verify any other information you provide, and that any information we collect may affect our assessment of your overall risk to our business or compliance with these Builder Terms. We may periodically update our requests for information from time to time as part of our Verification Process. You represent and warrant to us that the HIPAA Category and the other information you provide to us during the Verification Process are true, complete, and accurate in all respects.
- Keeping Your Account Current. You agree to keep the information in your Builder Account current. You must promptly update your Builder Account with any changes to your legal entity or provision of services, including information related to your HIPAA Category, Affiliates, or any other relevant information.
- Builder Services
- Use of Patient Data. Subject to our compliance with the obligations set forth in Section A(6) (Patient Data & Regulatory Requirements) below, you authorize us to use and disclose your Patient Data in order for us to provide the Builder Services to you.
- Restrictions on Use.
- APIs. You may only use APIs specifically identified for Builder use in the Documentation. You may not use or call any private, internal, or other APIs to which you may have access through the Builder Services.
- Harmful Material. You agree that you will not upload, transmit, or otherwise provide to or through the Builder Services any information, data, content or that violates the Acceptable Use Policy or which contain, transmit or activate any harmful, malicious or destructive code.
- Marks & Labels. You will not remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Builder Services or Documentation, including any screen displays or any other products or materials provided by Zus.
- Usage Limits. You will only use the Builder Services in accordance with any usage limits included in the Order Form.
- Modification. You may not and you agree not to, or enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of the Builder Services, the Documentation, or any part or component thereof.
- Builder Content. You agree not to load or incorporate into the Builder Services any Builder Content from a third-party, whether clinical or otherwise, without permission to do so from the applicable third-party licensor, and you are responsible for obtaining any necessary permissions to do so.
- Reciprocity. You will abide by a set of common minimum requirements set forth in the Documentation for participating, contributing, and sharing Patient Data in order to receive and benefit from the Zus Network.
- Service Levels. We will provide the Zus Platform in accordance with uptime commitment set forth in the Builder Services SLA. Any Service Credits set forth in the Builder Services SLA shall be your sole and exclusive remedy for any failure by us to achieve the uptime commitment.
- Support. We will provide support services for your use of the Builder Services during normal business hours (8am ET – 5pm ET), Monday through Friday, excluding major holidays. You can request support services by emailing email@example.com or, for technical support, using the Technical Support Form. You are responsible for supporting your Application and your Application Users.
- Changes to the Builder Services. We may make changes to the features and functionality of the Builder Services from time to time; however, we will not materially decrease the overall functionality of the Builder Services. You are responsible for ensuring that each Application you build is compatible with then-current Builder Services. We will try to avoid making changes to the Builder Services that are not backwards-compatible; however, if such changes are necessary we will use reasonable efforts to let you know at least 60 days prior to implementation of the changes.
- Your Application and Your Users.
- Your Application. You are solely responsible for the delivery of your Application to your Application Users. We have no liability or responsibility to you or your Application Users with respect to the delivery, performance, or availability of your Application (subject to our responsibilities under Section A(3)(e) above), or the Application’s compliance with Applicable Law. Your Application may not allow or enable your Application Users to use the Builder Services to access any Patient Data for Patients for whom you or they do not have a Patient Relationship for one or more Authorized Activities.
- Your Users.
- Identity and Access Controls. You will verify the identity of Your Users and ensure that only individuals who meet your requirements are able to access your Application and any Patient Data which may be accessible through the Zus Platform and the Zus Network.
- Your Builder Users. You are responsible for ensuring that your Builder Users comply with all relevant provisions of these Builder Terms and Documentation when using the Builder Services.
- Your Application Users. You agree that each Application User will accept Your User Agreement, which will require, at a minimum, that each Application User only use the Application for Authorized Activities, as permitted by Applicable Law. Your User Agreement will include acceptable use terms substantially consistent with the Zus’ Acceptable Use Policy. You will ensure that your Application Users comply with the terms of Your User Agreement and you will take immediate enforcement action for any violations.
- Evaluation Tools.
- Use of the Developer Sandbox. You may use our Sandbox Environment for testing, demonstration, or evaluation purposes. The Sandbox Environment is governed by separate Developer Sandbox Terms of Service (“Sandbox Terms”). The Sandbox Terms are incorporated into these Builder Terms and they will continue to be in effect for the Term of the Builder Services. Your use of the Sandbox Environment is limited to Test Data (as defined in the Sandbox Terms), even when you are using Builder Services in production.
- Early-Release Products and/or Features. We may provide you access to early-release products and/or features. These releases may be unstable and/or change in ways that are not backwards-compatible. It is at our sole discretion whether to include these early-release products and/or features in the Builder Services. The Builder Services SLA and support obligations set forth in Section A(3)(e) above do not apply to these early-release products and/or features. EARLY-RELEASE PRODUCTS AND/OR FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND WE WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY EARLY-RELEASE PRODUCTS AND/OR FEATURES.
- Patient Data & Regulatory Requirements
- Patient Data Governance. As you use the Builder Services to contribute to and access the Common Patient Record in the Zus Platform and to interact with other Participants in the Zus Network, you agree to comply with the following requirements:
- Zus Privacy Responsibilities. We will comply with the privacy requirements set forth in the Zus BAA and provide the Builder Services in compliance with these Builder Terms and the provisions of Applicable Law, including without limitation, HIPAA and the Cures Rules, in all material respects.
- Your Privacy Responsibilities. You are responsible for your own compliance with any legal or regulatory requirements of Applicable Law, including ensuring that your uses and disclosures of Patient Data comply with federal and state privacy laws. You are solely responsible for the disclosure, transmission, and/or receipt of any Patient Data which is contrary to or prohibited by any federal or state privacy law. You are also solely responsible for determining and/or ensuring that any requirement for notice, authorization, consent, or permission which is required as a condition for a disclosure, use, transmission or receipt of Patient Data has been met.
- Builder Privacy Documentation. You will create and maintain privacy policies and documentation that comply with Applicable Law in all material respects and adequately and accurately disclose how you collect, use, store and disclose Patient Data or other user data (“Builder Privacy Documentation”) and you will consistently apply and follow such Builder Privacy Documentation. You will make your Builder Privacy Documentation easily accessible by Patients and/or Application Users, as applicable. Without limiting the foregoing, you agree that you will only use and disclose Patient Data for the purposes or activities you disclose in the Builder Privacy Documentation.
- Specially Regulated Data. You acknowledge that certain Patient Data (such as HIPAA Psychotherapy Notes, mental health information, substance use disorder information, HIV status) may be subject to certain additional or specific notice, consent, or authorization requirements under Applicable Law (“Specially Regulated Data”). You may only use the Builder Services to upload or share Specially Regulated Data if you have satisfied any conditions or requirements applicable to such data.
- Network Opt Out. Each party will respect a Patient’s decision to opt out of any sharing of Patient Data through the Builder Services or the Zus Platform). Provided that the Patient has not revoked consent to your use of their Patient Data, you may continue to use the Builder Services for Authorized Activities, but without sharing of his or her Patient Data into the Common Patient Record.
- Builder Security Policy. You agree to follow the Builder Security Policy, as may be updated or revised from time to time.
- Zus Security Responsibilities. We will implement and maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Patient Data as described in the Builder Security Policy.
- Your Security Responsibilities. You will implement and maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Patient Data as described in the Builder Security Policy. You will not, and you will not allow or enable any of Your Users to, bypass or breach any security feature, device, or protection used by the Builder Services. You and your Users may not access the Builder Services other than through your or their own then valid access credentials.
- Patient Data Governance. As you use the Builder Services to contribute to and access the Common Patient Record in the Zus Platform and to interact with other Participants in the Zus Network, you agree to comply with the following requirements:
- Mutual Confidentiality
- General. Each party will only use the other party’s Confidential Information to exercise the receiving party’s rights and fulfill its responsibilities under these Builder Terms and will use reasonable care to protect against the disclosure of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors who have a need to know and are bound by confidentiality obligations at least as restrictive as those set forth herein.
- Compelled Disclosures. Notwithstanding any other provision of these Builder Terms, a receiving party or its Affiliate may disclose Confidential Information to the extent compelled by court order, subpoena, warrant or other valid legal authority; provided that the receiving party uses commercially reasonable efforts to promptly notify the other party before any such disclosure (to the extent legally permitted).
- Publicity & Network Transparency. You may state publicly that you are a Zus Builder and that you are using the Zus Platform and Builder Services and are a Participant of the Zus Network. Zus may identify you as a Participant in the Zus Network and as a contributor to the Common Patient Record.
- Intellectual Property.
- Zus Ownership.
- Zus IP. As between you and Zus, we exclusively own and reserve all right, title, interest in and to the Builder Services, the Zus Platform, the Documentation, System Data, Feedback, and our Confidential Information (together, the “Zus IP”). Notwithstanding the foregoing, Zus does not claim any ownership over your Patient Data.
- Feedback. We own any Feedback you provide to Zus and we are entitled to implement, use, and incorporate into the Builder Services any Feedback without restriction or limitation.
- Your Ownership.
- Builder IP. As between you and Zus, you exclusively own and reserve all right, title, interest in and to your Application, your Patient Data, Builder Data, Builder Content, Builder Documentation, and your Confidential Information (together, “Builder IP”).
- Common Patient Data. You acknowledge and agree that, with regard to any Patient Data that you upload to or share with the Builder Services that is included in the Common Patient Record (“Common Patient Data”), as between you and any other Builder (“Common Builder”) with which you share a given Patient (a “Common Patient”), you and such Common Builder both have equal right, title, and interest in Patient Data for the Common Patient included in the Common Patient Record. Nothing included in this Section, or otherwise in these Builder Terms, requires you to share Patient Data that does not meet the DRS Requirements or provide any other Builder or third party any right, title or interest in any Patient Data you upload to or share with the Builder Services that are not Common Patient Data.
- Our Use of Data. We may use the data we store, process, receive, or create through the Builder Services and the Zus Platform, including Patient Data, Builder Data, and Transaction Data as described below.
- Patient Data. We may only use Patient Data as authorized under these Builder Terms and permitted by the Zus BAA and Applicable Law. Nothing in these Builder Terms or the Zus BAA gives us the right to de-identify Patient Data for sale or license to third parties.
- Builder Data. We may use Builder Data for purposes of providing the Builder Services or making the Zus Platform available to you, providing related support services, or for our proper management and administration as permitted by Applicable Law. Builder Data will not be included in a Common Patient Record.
- Transaction Data. We may use and disclose Transaction Data to administer, facilitate or provide the Builder Services, or improve or provide additional Builder Services, except that we may not disclose to any third-party any Transaction Data that may identify you unless permitted by Section A(7) (Confidentiality) of these Builder Terms.
- System Data. We may use, disclose, market, license, distribute, sell, receive remuneration for, create derivative works of System Data as permitted by Applicable Law.
- Trademarks. Except as expressly provided, these Builder Terms do not give either you or Zus the right to use the other party’s trademarks, logos, or service marks without the other party’s prior written consent. If or when permitted, any use of or reference to either party’s trademarks, logos or service marks may be done only in strict accordance with these Builder Terms.
- Zus Ownership.
- Payment Terms.
- Fees. You agree to pay the fees for the Builder Services set forth in an executed Order Form or associated pricing list (“Fees”). Except as otherwise set forth herein, your payment obligations are non-cancelable and Fees paid are non-refundable. You agree that your payment of the Fees is not contingent on the delivery of any future features or functionality.
- Billing. At the end of each month, we will issue an invoice that identifies the Fees payable based on your use of the Builder Services that month. Unless otherwise agreed in an Order Form, you will pay the Fees within 30 days of receipt of the invoice. Unless we authorize otherwise, you will pay by credit card, debit card, or other approved electronic payment method.
- Taxes. You are responsible to pay for all taxes, customs, duties, fees, and other charges imposed by any governmental authority, including any value added tax, goods and services tax, sales tax, use or consumption tax, and/or withholding tax on the Builder Services. You are not responsible for any taxes based on our net income, net worth, asset value, property value or employment. If you are tax-exempt, you will provide us with the appropriate certificate or other evidence of tax exemption.
- Payment Disputes. You must notify us within 30 days of receipt of an invoice for any Fees that you wish to dispute. You may withhold any disputed Fees without suspension of the Builder Services or assessment of a late fee until the dispute is resolved, so long as you act reasonably and in good faith and cooperate diligently with Zus to resolve the dispute.
- Late Payments. Except in the case of a good faith dispute as described in Section A(9)(d), if you fail to pay the Fees when due, we may (i) assess and you will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by Applicable Law, and/or (ii) suspend the Builder Services for your Builder Account, until the Fees are paid in full.
- Term, Termination & Suspension
- Term. The Order Form will set forth the initial term of your use of the Builder Services (“Initial Term”). The Order Form will thereafter automatically renew for additional one-year periods (collectively with the Initial Term, the “Term”) unless either party provides notice of its intent to terminate no later than 90 days prior to the end of the then current Term. Notwithstanding the foregoing, if no Initial Term is designated on the Order Form either party may terminate your use of the Builder Services at any time with 30 days’ prior written notice to the other party. These Builder Terms are effective on the date they are accepted by you and will continue in effect until expiration or termination of all Order Forms executed by the parties.
- Termination for Inactivity. Zus reserves the right to terminate your access to the Builder Services upon 30 days advance notice if, for a period of 60 days you have not accessed the Builder Services or had any activity in the Builder Services and no Term is designated on your Order Form.
- Termination for Breach. To the extent permitted by Applicable Law, either you or Zus may terminate an Order Form and these Builder Terms immediately on written notice if (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach, or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
- Suspension of Services. We may immediately suspend your use of the Builder Services and the Zus Platform if we determine in good faith: (i) that you have materially breached any provision of these Builder Terms; (ii) that the information you provided as part of the Verification Process is materially incomplete, inaccurate, or misleading; (iii) there is an unusual and material increase in your use of the Builder Services and such increase negatively impacts the operating capability of the Builder Services; (iv) that our provision of Builder Services to you is prohibited by Applicable Law; or (v) there is any use by you or one of your Application Users that threatens the security, integrity or availability of the Builder Services or Zus Platform. If we suspend the Builder Services pursuant to Section 9(e) or this Section 10(e) we will have no liability for any damage, costs, losses (including any loss of data or profits), or any other consequences that you may incur in connection with such suspension. We will notify you as soon as possible if we are unable to notify you prior to suspension of your access to the Builder Services.
- Effect of Termination.
- Zus BAA. Termination of the Builder Terms for any reason under this Section will also result in the immediate and automatic termination of the Zus BAA on the same date termination of the Builder Services takes effect. Zus will follow the disposition of PHI requirements of Section D(2) of the Zus BAA.
- Transition. Upon termination of these Builder Terms for any reason under this Section, (A) you will notify your Application Users that their access to the Builder Services has terminated and that we may withhold, remove or discard any content, data or other information that Application Users post or upload to the Zus Platform while using the Builder Services; and (B) Zus will use commercially reasonable efforts to enable you to export or transfer your Builder Data and Patient Data contained in the Zus Platform.
- Representation & Warranties
- Zus Representations & Warranties. We represent and warrant to you that the Builder Services will perform in accordance with the Documentation in all material respects. Our sole obligation, and your sole and exclusive remedy, for any non-conformities to the express warranty set forth under this Section, will be for us to (at our option): (i) remediate any material non-conformity or (ii) refund to you a pro-rata amount of the Fees you actually paid for the time period during which the affected services do not comply with this Section.
- Builder Representations & Warranties. You represent and warrant to us that your Application and your Builder Documentation complies with Applicable Law in all material respects. You also represent and warrant to us that (i) you have provided to us, and will continue to provide to us, any notices you receive from Patients and (ii) you have obtained, and will continue to obtain, any permissions or consents that may be required by Applicable Law for use or disclosure of any Builder Data, Patient Data, and any other Builder Content with or through the Builder Services or the Zus Network.
- GENERAL. THE BUILDER SERVICES, THE ZUS PLATFORM, AND THE ZUS NETWORK ARE PROVIDED “AS IS”, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE BUILDER TERMS, WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE BUILDER SERVICES, THE ZUS PLATFORM, AND THE ZUS NETWORK.
- CONTENT. WE ASSUME NO RESPONSIBILITY FOR THE ACCURACY, UP-TO-DATE STATUS, OR COMPLETENESS OF ANY CONTENT CREATED BY, AVAILABLE IN OR SHARED THROUGH THE BUILDER SERVICES, THE ZUS PLATFORM, OR THE ZUS NETWORK, INCLUDING PATIENT DATA, NOR ITS COMPLIANCE WITH ANY LEGAL REQUIREMENTS OR STANDARDS.
- CLINICAL RESPONSIBILITY. YOU ACKNOWLEDGE AND AGREE THAT THE BUILDER SERVICES, THE ZUS PLATFORM, AND THE ZUS NETWORK AND ANY AVAILABLE PATIENT DATA OR CLINICAL CONTENT PROVIDED THROUGH THEM ARE NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT, OR CARE BY BUILDERS OR YOUR APPLICATION USERS. THE BUILDER SERVICES ARE NOT A SUBSTITUTE FOR YOUR OR YOUR USERS’ PROFESSIONAL MEDICAL ADVICE AND SHOULD NOT BE USED WITHOUT THE SUPERVISION AND INDEPENDENT MEDICAL JUDGMENT OF A QUALIFIED HEALTHCARE PROFESSIONAL CONSISTENT WITH APPLICABLE STANDARDS OF GOOD MEDICAL PRACTICE.
- INTERNET SECURITY. YOU ACKNOWLEDGE THAT THE INTERNET AND TELECOMMUNICATIONS PROVIDER NETWORKS ARE INHERENTLY INSECURE AND YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF PATIENT DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATION PROVIDERS’ NETWORK.
- Mutual Indemnification
- Indemnification by Zus.
- Scope of Indemnification. Subject to the limitations in this Section, we will indemnify, defend, and hold harmless you and your directors, officers, and employees from and against all third party Costs arising from or related to any actual or alleged claim (A) that our provision of the Builder Services infringes or misappropriates such third party’s intellectual property rights, or (B) arising from a breach of our obligations under the Zus BAA (“Builder Claim”). We will pay all Costs and any settlement amounts agreed to be paid by us or damages awarded against you in connection with any such Builder Claim.
- Infringement Alternatives. If the Builder Services are, or we believe are likely to become, the subject of an Builder Claim, we may at our option and expense (A) procure the right to continue providing the Builder Services as set forth in these Builder Terms, (B) modify the Builder Services as permitted in these Builder Terms, or (C) if the foregoing options are not reasonably practicable, terminate these Builder Terms, or if applicable, terminate the specific Builder Services that are the subject of any actual or potential Builder Claim, and refund you any unused but pre-paid Fees.
- Limitations. We will have no liability or obligation under this subsection (A) with respect to any Builder Claim arising (1) out of your use of the Builder Services in breach of these Builder Terms, (2) out of the combination, operation, or use of the Builder Services with other applications, portions of applications, products or services where the Builder Services would not by themselves be infringing, or (3) arising from your use of the Builder Services where there is no charge.
- Indemnification by You. You will indemnify, defend, and hold harmless Zus, its directors, officers, and employees from and against all Costs arising from or related to any actual or alleged (i) breach by you or Your Users of these Builder Terms, (ii) any negligent act or omission or willful misconduct by you or Your Users, (iii) your use of the Builder Services and access to the Zus Platform and Zus Network, including without limitation, any intellectual property or privacy claims relating to the Application, Builder Data, or Patient Data; and (iv) any claim arising out of patient care or outcomes relating to your Application Users’ use of the Builder Services, regardless of the cause (together, the “Zus Claims”). You will pay all Costs and any settlement amounts agreed to be paid by you or damages awarded against Zus in connection with such Zus Claims.
- Conditions for Indemnification. As a condition of the indemnification obligations in this Section the: (i) indemnified party (“Indemnified Party”) must promptly notify the indemnifying party (“Indemnifying Party”) of a respective Builder Claim or a Zus Claim (individually and collectively referred to as a “Claim”); provided, however, that any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (ii) Indemnifying Party will have the sole and exclusive authority to defend or settle the Claim; and (iii) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with its obligations under this Section, at the Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of any Claim. Notwithstanding anything to the contrary in this Section, Indemnifying Party will not settle any Claims that admit liability or fault on behalf of the Indemnified Party or create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
- Exclusive Remedy. This Section 13 describes the Indemnifying Party’s only liability to, and the Indemnified Party’s exclusive remedy against, the other party for any third party claims.
- Indemnification by Zus.
- Mutual Limitation of Liability.
- Limitation on Indirect Liability. To the extent permitted by Applicable Law, neither party will be responsible or liable for (i) any indirect, punitive, incidental, special, consequential, or exemplary damages, (ii) personal injury or property damage; or (iii) lost revenues, profits, savings or goodwill, even if such damages are foreseeable, and whether or not the party had been advised of the possibility of such damages.
- Additional Zus Limitations. Zus will not have any responsibility for any liability or damages to you or others materially caused or contributed to by (i) your use of the Builder Services or access to the Zus Platform or Zus Network that is inconsistent with the Documentation or Zus Policies; (ii) any unauthorized access or use of the Builder Services, the Zus Platform, your information systems, Builder Content or your Application arising from your failure to use or implement appropriate security controls; (iii) any errors, inaccuracies, omissions, or losses in or to any Builder Data provided to us; (iv) third-party content provided by you, or (v) the defamatory, offensive or illegal conduct of others.
- Liability Cap. Except for any indemnification obligations set forth in Section A(13)(a)(i)(A), under no circumstances will Zus’ liability under these Builder Terms exceed the total amount of Fees paid by you to Zus during the 12 month period immediately preceding the event that gave rise to a claim for damages. Notwithstanding the foregoing, in the event of a breach of the Zus BAA by Zus in which the sole responsibility for such breach rests with Zus, Zus’ liability for such breach shall not exceed an amount equal to 10 times the total amount of Fees paid by you to Zus during the 12 month period immediately preceding the event that gave rise to the claim for damages.
- Notices. Both parties agree that emails may be used to satisfy notice, approval or consent requirements under these Builder Terms. We will send any notices to you under these Builder Terms to the email address you designate in your Builder Account. Notices to us under these Builder Terms must be sent to firstname.lastname@example.org.
- Interpretation & Order of Precedence. Any ambiguities in these Builder Terms shall be interpreted so as to permit compliance with HIPAA and other Applicable Law. In the event of conflicting terms or provisions, the order of precedence of the controlling terms shall be as follows: (i) Zus BAA, (ii) Order Form, (iii) Terms of Service, and (iv) Zus Policies.
- Entire Agreement. Except as provided in these Builder Terms (including any incorporated policies, addenda or additional terms) or any applicable Order Form, these Builder Terms supersede all prior and contemporaneous agreements proposals, statements, sales materials, presentations, or agreements, whether oral or written. The Parties agree that Section 7 (Confidentiality) hereby supersedes and prevails over all prior, contemporaneous, and future non-disclosure or confidentiality agreements between the Parties in their entirety. No oral or written information or advice given by us, or our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Builder Terms. Any purchase order terms or terms included your vendor registration form or registration portal are void and will be non-binding against us even if accepted or signed by us after the data you accept these Terms.
- Waiver & Severability. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Builder Terms. If any part of these Builder Terms is deemed invalid, illegal, or unenforceable, the rest of the Builder Terms will remain in effect.
- Governing Law & Venue. These Builder Terms are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law rules. Any legal action, suit or proceeding arising from these Builder Terms will be brought in state or federal court in Suffolk County, Massachusetts.
- Assignability. Neither party will assign, delegate, or otherwise transfer an Order Form(s) (and therefore these Builder Terms), in whole or in part, without the other party’s prior written consent, except that either party may assign an Order Form in the event of a merger or sale of all or substantially all of the party’s assets.
- Relationship & Third-Party Beneficiaries. These Builder Terms do not create any agency, partnership or joint venture between the Parties, nor do they confer any rights, benefits, obligations or liabilities on any third party unless they expressly state that they do. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
- Force Majeure. No failure, delay or default in performance of any obligation of a party will constitute an event of default or breach of these Builder Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of government, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
- Record Retention & Access. Zus will retain any business records or data that we collect, maintain or create under these Builder Terms for the periods required by Applicable Law. If required for purposes of 42 CFR § 420.300, or any other Applicable Law, upon written request we will make any necessary books, records and documents available to the U.S. Department of Health and Human Services Comptroller General or other governmental authority for purposes of verifying the nature and extent of any costs incurred by you for services we provide to you under these Builder Terms for which payment may be or have been made under Medicare, Medicaid or other applicable federal or state reimbursement programs. Our responsibility to provide access to you under this Section will continue for a period of seven (7) years from the date of termination of these Builder Terms.
- Survival. The following Sections shall survive termination: 7 (Confidentiality), 8 (Intellectual Property Terms), 9 (Payment Terms), 10(f) (Effect of Termination), 12 (Disclaimers), 13 (Mutual Indemnification), 14 (Mutual Limitation of Liability), and 15 (Miscellaneous).
- Introduction to Zus.
- THIRD PARTY PRODUCT TERMS
- Applicability. The Builder Services incorporates third party products, some of which have additional terms and conditions that you must adhere to (set forth below). When there is a conflict between the Builder Terms and specific Third Party Product Terms, the Third Party Product Terms will apply.
- Medical History Service Terms.
- Medication Service Terms.
- Quest Diagnostics Clinical Laboratories, Inc. If you are receiving Patient Data from Quest Diagnostics Clinical Laboratories, Inc. please read the following notice*:
“This information has been disclosed to you from confidential records which are protected by state law. State law prohibits you from making any further disclosure of this information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law. Any unauthorized further disclosure in violation of state law may result in a fine or jail sentence or both. A general authorization for the release of medical or other information is NOT sufficient authorization for further disclosure.“
- LOINC (Logical Observation Identifiers Names and Codes) Copyright Notice and License:
“This material contains content from LOINC (http://loinc.org). LOINC is copyright © 1995-2023, Regenstrief Institute, Inc. and the Logical Observation Identifiers Names and Codes (LOINC) Committee and is available at no cost under the license at http://loinc.org/license. LOINC® is a registered United States trademark of Regenstrief Institute, Inc.”
- American Medical Association End User Terms
- ADDITIONAL TERMS
“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the entity.
“Applicable Law” means any applicable state or federal law then in effect.
“Application” means your digital health or other software application, technology or service which uses, integrates with, or incorporates elements of the Builder Services.
“Application User” means a person that you allow to use your Application.
“APIs” means application programming interfaces included in the Builder Services that enable you to access certain features or functionality of or Patient Data stored or available through the Zus Platform.
“Builder” means a legal entity (other than a sole proprietor) that is organized under the laws of and located in the United States which is either a Covered Entity or Business Associate and which Zus approves to use the Builder Services following the Verification Process described in Section 2(b).
“Builder Account” means the account that we assign to you following the Verification Process and which controls use and access to Builder Services for your Builder Users and Application Users.
“Builder Content” means material which you create with, or which are pre-existing (whether created by you, or created by a third-party and appropriately licensed by you) and you incorporate into your Application using, the Builder Services, including unique questionnaires and forms, proprietary algorithms, workflows, processes, and clinical protocols or guidelines which you have developed.
“Builder Data” means proprietary or personal information identifying and pertaining to a Builder or a Builder Account, including data about Builder Users and Application Users, your use or configuration of the Builder Services, or any data which embodies Builder IP, which we collect or create as we manage and administer the Builder Services and provide support to you.
“Builder IP” has the meaning set forth in Section 8(b)(i).
“Builder Documentation” means any documentation or materials you create or share with Zus relating to your Application, including any Builder Privacy Documentation.
“Builder Privacy Documentation” has the meaning set forth in Section A(6)(b)(iv).
“Builder Services” means the set of APIs, SDKs, tools, plugins, code, technology, content, data integrations and connections, infrastructure and technical services that Zus makes available to Builders for developing functionality, performing functions, and processing data through the Zus Platform and retrieving data from or sharing data through the Zus Network as described in the Builder Terms and the Documentation.
“Builder Users” means either an operational or technical user associated with a Builder Account who logs into or uses the Builder Services.
“Business Associate” means an organization that meets the definition at 45 CFR 160.103 and which is either a Business Associate of a Covered Entity, or a Sub-Business Associate to a Business Associate serving a Covered Entity under HIPAA.
“Common Builder” has the meaning set forth in Section A(8)(b)(ii).
“Common Patient” has the meaning set forth in Section A(8)(b)(ii).
“Common Patient Data” has the meaning set forth in Section A(8)(b)(ii).
“Confidential Information” means information that one party discloses to the other party under these Builder Terms which is marked confidential or would reasonably understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. It does not include information that is independently developed by the receiving party, is rightfully given to the receiving party by a third party without confidentiality obligations, or becomes public through no fault of the receiving party.
“Costs” means claims, liabilities, costs, damages, and expenses, including reasonable attorneys’ fees.
“Covered Entity” is an organization which meets the definition of Covered Entity under the HIPAA Privacy Rule.
“Cures Rules” means the CMS Interoperability & Patient Access final rule (CMS-9115-F), as may be amended from time to time, the ONC Cures Rules, and the 21st Century Cures Act.
“Documentation” means the information, content and materials available on the Zus documentation portal.
“Feedback” is any feedback, suggestions, recommendations, or feature or functionality requests you provide to Zus related to the Builder Services.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, the HIPAA Privacy Rule and HIPAA Security Rule, as amended.
“HIPAA Category” means the type of Covered Entity or Business Associate that a Builder represents to Zus that it is during the Verification Process and during its use of the Builder Services.
“HIPAA Privacy Rule” means the regulations at 45 CFR 160 and Subparts A and E of 45 CFR 164 implementing HIPAA and still in effect, as amended or updated.
“HIPAA Security Rule” means the regulations at 45 CFR 160 and Subparts A and C of 45 CFR 164 implementing HIPAA and still in effect, as amended or updated.
“Indemnified Party” has the meaning set forth in Section 13(c).
“Indemnifying Party” has the meaning set forth in Section 13(c).
“Initial Term” has the meaning set forth in Section 10.
“Minimum Necessary Standard” is the standard described in 45 CFR 164.502(b) and 164.514(d).
“ONC Cures Rules” means the final rules implementing the Cures Act issued by the U.S. Department of Health & Human Services Office of the National Coordinator for Health Information Technology and still in effect, as amended or updated, with regard to interoperability and information blocking.
“Network Partner” means an entity that connects to the Zus Platform to share or receive Patient Data and which is a Participant in the Zus Network.
“Patient” means any patient for whom Zus receives Protected Health Information.
“Patient Data” means Protected Health Information. Patient Data does not include any information on a Builder User or Application User related to their use of the Builder Services or your Application but does include information on a Builder User or Application User to the extent related to their participation in or receipt of Authorized Activities in their individual capacity.
“Participant” means a Covered Entity, Business Associate, Network Partner, Service Partner or Patient that uses the Zus Platform to interact or share data for Authorized Activities.
“Partner Offering” means third-party services, content, data, software, products and other offerings that are not incorporated into the Services such that they require you to accept specific separate legal terms in order to use the Partner Offering.
“PHI” or “Protected Health Information” is individually identifiable health information as defined in the HIPAA Privacy Rule (45 CFR 160.103).
“Sandbox Terms” has the meaning set forth in Section A(5)(a).
“SDK” means the tools, content and code provided by Zus to help Builders use the APIs and the Builder Services.
“Specially Regulated Data” is Patient Data which is subject to certain additional or specific notice, consent or authorization requirements, or other limitations on disclosure as defined in Section A(6)(b)(v).
“Service Partner” means an entity providing a Partner Offering.
“System Data” means data that we generate, create, or derive from Patient Data, Builder Data, or Transaction Data that does not include any actual Patient Data or Builder Data.
“Term” has the meaning set forth in Section 10.
“Transaction Data” means data about transactions conducted by, with or for you through the Builder Services, but does not include either Patient Data or Builder Data.
“Users” means any user of the Zus Platform, including Builder Users and Application Users.
“Verification Process” means our due diligence process to verify you as an approved Participant to use the Builder Services and the Zus Network.
“Your Users” means either your Builder Users or your Application Users.
“Your User Agreement” means your agreement or terms and conditions with Your Users for the provision of your Application.
“Zus BAA” means the Zus Business Associate Addendum incorporated into these Builder Terms by reference.
“Zus IP” has the meaning set forth in Section A(8)(a)(i).
“Zus Network” means the collection of Participants who use the Zus Platform to interact and share data for Authorized Activities.
“Zus Platform” means the infrastructure, Patient Data (subject to restrictions set forth herein), technical services, tools, and systems created, maintained and used by Zus to make available the Builder Services and support the Zus Network.
“Zus Policies” means the policies listed in Section C(3) and which are available at the Zus website policy page.