1. LICENSE.  Optum grants to Client a nonexclusive, nontransferable license to access and use the Software from locations within the United States for Client's internal, lawful, business use, and to the extent Client has paid the applicable fees for such access and use. The Software contains data sets from Optum and third party licensors, and such data sets are included in the definition of "Software". Optum is the sole and exclusive owner of the Software and/or has been licensed to distribute the Software or portions of it. Client acquires no right to the Software or to the information and data contained in the Software, except the nonexclusive right to use such information and data solely for Client's own internal business purposes, in accordance with this Agreement. Client shall have no right to allow any person or entity that is not an employee or consultant of Client to access the Services, directly or indirectly in any way, and Client must ensure that anyone with access to the Software through Client will comply with the provisions of this Agreement. Client shall not modify, reproduce, publish, adapt, sub-license, distribute, translate, transfer, sell, reverse engineer, decompile, or disassemble any portion of the Software, or otherwise attempt to derive any source code or algorithms of the Software, or create derivative works of the Software and its content. Client shall not use any computer program, bot, robot, automated script, spider, offline reader, site search/retrieval application, or other manual or automatic device, tool, or process (including web crawlers, browser plugins and add-ons or any other technology) to scrape, retrieve, copy, index, data mine, or in any way reproduce data from the Software. Client shall not use any automatic device, program, or service designed to circumvent the security structure, navigational structure, or presentation of the Software or any technological measure that effectively controls access to, or the rights in, the Software. Client shall not take any action that imposes or may impose (in Optum's sole discretion) an unreasonable or disproportionately large load on Optum's infrastructure.
2. FEE CALCULATIONS.  The price paid for this license is based on use of the Software by one user only. Client shall report use by additional users to Optum and Client will pay Optum the applicable additional fees. Exceeding user limits without reporting to Optum and paying applicable fees puts Client at risk for audit from Optum and its licensors, and all applicable penalties are the responsibility of Client. Pursuant to Optum's agreement with the American Medical Association ("AMA"), a user is an individual employee or contractor of a Client who:
   1. Accesses, uses or manipulates Current Procedural Terminology® ("CPT") coding contained in the Software;
   2. Accesses, uses, or manipulates the Software to produce or enable an output (data, reports or the like) that could not have been created without the CPT embedded in the Software even though CPT coding may not be visible or directly accessible; or
   3. Makes use of an output of the Software that relies on or could not have been created without the CPT coding embedded in the Software even though CPT coding may not be visible or directly accessible.
3. ACCESS.  Client is authorized to access and use the Software from one computer or terminal at any given time. This means a single user is permitted to use the Software from any one terminal. If multiple users are able to access this Software from a shared computer or terminal, each user must obtain his/her own license to use the Software. If more than one person can access or use the Software simultaneously, Client must purchase a network license for each terminal or user. Client may not sublicense, assign, or transfer this license, the Software, or the output produced by the Software to any third party. Client may NOT use the Software on any public computer based medical information system, or in any public electronic bulletin board, or translate, decompile, or disassemble the Software, or create any derivative work based on the Software or the accompanying documentation.
4. USER ID AND SECURITY.  After Client's registration and pre-payment of fees, Optum shall provide Client with an initial User ID to access the Software on the Website. Client agrees to maintain strict security procedures to prevent unauthorized use or disclosure of Client's User ID and to protect the Website from improper access. Client's User ID is personal to Client only. All fees incurred by persons to whom Client has disclosed a User ID shall be Client's sole responsibility.
5. ACCURACY AND ERRORS.  Client agrees that Optum and its employees and agents shall not be held responsible or liable for any actions taken by Client, or any error, inaccuracy, or omission in any report or analysis Client prepares in connection with or through use of the Software, or for any damage (including, but not limited to consequential damages) resulting from it. No later than thirty (30) days from the date of Client's receipt of access to the Software or any update of the Software, Client shall advise Optum in writing of any known errors or suspected errors that may materially affect the Software.
6. LIMITED WARRANTY.  Optum warrants that the Software will perform in accordance with the user documentation for it on the Website. To the extent that the Software contains information Optum has received from third parties, Optum warrants only that the Software contains an accurate copy of the information that was delivered to Optum. Except as expressly provided in this Agreement, Optum DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND RELATING TO THE SOFTWARE AND THE WEBSITE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF DAMAGES.  Optum is not be responsible or liable for any actions taken by Client as a result of Client's use of the Software, or for any error, inaccuracy, or omission in any report or analysis Client prepares in connection with or through use of the Software, or for any damage resulting from such use. Each party's liability to the other party for direct damages arising out of this Agreement shall not exceed the amount Client has paid or owes Optum under this Agreement in the year in which the cause of action rose. Under no circumstances will either party or Optum's licensors be responsible under this Agreement for any indirect, incidental, special or consequential damages resulting from either party's performance or failure to perform under this Agreement, including, without limitation, the use of or inability to use the Services, any damage to equipment and any cost of recovering lost data or of reprogramming. Optum does not warrant that the Software will meet Client's requirements or that the operation of the Website will be uninterrupted or without error.
8. COPYRIGHT AND CONFIDENTIALITY.  Client acknowledges that the Software, the process and technologies included therein, as well as any other information or materials made available to Client by Optum through the Website are valuable assets, trade secrets, and/or copyrighted material of Optum or Optum's licensors and that Optum and its licensors retain title to them. Under no circumstances may Client copy the Software or the accompanying documentation for the purposes of distribution to others, nor may Client remove the copyright notices on the Software or the accompanying documentation. Client agrees not to decompile, reverse engineer, or otherwise attempt to discover the source code of the Software.
9. TERMINATION FOR BREACH.  Optum may access and inspect Client's business records to investigate Client's compliance with this Agreement. Optum may terminate Client's access to the Software at any time if Optum reasonably believes that Client is in violation of this Agreement. This Agreement shall automatically terminate if Client fails to comply with any provision of this Agreement.
10. COOKIES.  Optum may employ a use of a "cookie" that collects traffic data.
11. PRIVACY.  The parties agree to the Business Associate Addendum attached to this Agreement.
12. BILLABLE SERVICES.  Analytic consulting services to support advanced reporting requests will be provided at Optum's then current hourly rates. Client will be invoiced for such charges, as incurred and will pay all invoices within thirty (30) days of the date of invoice.
13. CPT TERMS.  Data obtained from use of the Software may contain Current Procedural Technology Codes ("CPT") owned by the American Medical Association ("AMA") and licensed to Optum. The terms of this Section apply only to CPT codes and related content.
    1. Optum's ability to deliver updated versions of CPT to Client is dependent upon continuing contractual relations with the AMA. CPT is copyright by the AMA and the AMA trademark is owned by the AMA. All notices or proprietary rights, including trademark and copyright in CPT must appear on all permitted back-up or archival copies made by Client. Client may copy the Services only for back-up or archival purposes. Client shall ensure that any person or entity that Client authorizes to obtain access to CPT shall comply with the provisions of this Agreement. Client shall not use CPT codes or information contained therein in any public computer-based information system or public electronic bulletin board without secure access. Client shall not create any derivative works based on CPT.
    2. Client shall not publish, distribute via the Internet or other public computer based information system, create derivative works (including translating), transfer, sell, lease, license or otherwise make available to any unauthorized party some or all of the CPT codes.
    3. The AMA provides CPT "AS IS", without any liability to the AMA, including, without limitation, no liability for consequential or special damages or lost profits for sequence, accuracy or completeness of the CPT data. The AMA does not warrant that CPT will meet Client's requirements. The AMA disclaims any liability for any consequences due to use, misuse or interpretation of information contained or not contained in CPT.
    4. CPT coding is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were developed exclusively at private expense by the American Medical Association, 515 N. State Street, Chicago, IL 60610. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
14. CLAIMS BATCH MANAGER.  If Client obtains the Claims Batch Manager module, Client will deliver its 837 claims to Optum prior to sending them to a payer or clearinghouse, as described on the Website. Optum will compare Client's claims to Optum's coding knowledgebase, and deliver to Client reports on any failures of the claims to comply with the knowledgebase rules. Optum has no responsibility for transmitting Client's claims to any payer or clearinghouse. This Claims Batch Manager functionality is included in the definition of Software in this Agreement.
15. FEEANALYZER TERMS.  The terms of this Section apply only to the use of the FeeAnalyzer and the FeeAnalyzer add-on powered by FAIR HealthSM Data for Optum EncoderPro.com Expert.
    1. Copyright and Trade Secret Protection: United States and international copyright laws protect the Software, the accompanying documentation, and the file contents. Client acknowledges that the Software, the process and technologies included therein, as well as any other information or materials made available to Client by Optum through the FeeAnalyzer.com website are valuable assets, trade secrets, and/or copyrighted material of Optum or licensors to Optum. Client acknowledges that Optum has transferred to Client no rights to the Data, the process, or technologies, nor to any other information or materials, except as provided in this Agreement.
    2. Databases: The Customized Fee Analyzer uses database Software produced by and licensed from FAIR Heath, Inc.
16. ICD-CM CODING CLINIC.  This Software may contain AHA CODING CLINIC© FOR ICD-CM content which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Hospital Association, 155 N. Wacker Dr., Suite 400, Chicago, Illinois 60606. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
17. HCPCS CODING CLINIC.  This Software may contain AHA CODING CLINIC© FOR HCPCS content which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Hospital Association ("AHA"), 155 N. Wacker Dr., Suite 400, Chicago, Illinois 60606. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
18. ADA DENTAL CODES.  The Code on Dental Procedures and Nomenclature is published in Current Dental Terminology (CDT), Copyright © American Dental Association (ADA). All rights reserved.
19. This Software may include CROSSWALK, Reverse CROSSWALK and/ or Relative Value Guide as applicable, which are commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Society of Anesthesiologists, 520 North Northwest Highway, Park Ridge, Illinois, 60068. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
20. UB-04 MANUAL.  This Software may contain OFFICIAL UB-04 DATA SPECIFICATIONS MANUAL, content which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Hospital Association ("AHA"), 155 N. Wacker Dr., Suite 400, Chicago, Illinois 60606. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
21. GENERAL TERMS.  The person choosing to indicate acceptance of this Agreement below represents that he/she is acting on behalf of Client, and that she/he has the authority to bind Client. Terms of a purchase order or other ordering or shipping document do not modify, amend, or add to the terms of this Agreement, and shall have no effect. In the event that a provision of this Agreement is determined to violate any law or is unenforceable, the remainder of the Agreement shall remain in full force and effect.

BUSINESS ASSOCIATE ADDENDUM ("BAA")

1. DEFINITIONS.  Unless otherwise specified in this BAA, all capitalized terms used in this BAA not otherwise defined herein have the meanings established for purposes of the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as each is amended from time to time (collectively, "HIPAA"). This BAA applies in the event that Client is a Covered Entity under HIPAA and Optum is acting as Client's Business Associate.
   1. "Breach Rule" means the federal breach regulations, as amended from time to time, issued pursuant to HIPAA and codified at 45 C.F.R. Part 164 (Subpart D).
   2. "PHI" means Protected Health Information, as defined in 45 C.F.R. § 160.103, and is limited to the Protected Health Information received from, or received, maintained, created or transmitted on behalf of, Client by Optum in performance of the Services.
   3. "Privacy Rule" means the federal privacy regulations, as amended from time to time, issued pursuant to HIPAA and codified at 45 C.F.R. Parts 160 and 164 (Subparts A & E).
   4. "Security Rule" means the federal security regulations, as amended from time to time, issued pursuant to HIPAA and codified at 45 C.F.R. Parts 160 and 164 (Subparts A & C).
   5. "Services" means, to the extent and only to the extent they involve the receipt, creation, maintenance, transmission, use or disclosure of PHI, the services provided by Optum to Client as set forth in the Agreement, as amended by written agreement of the Parties from time to time.
2. RESPONSIBILITIES OF BUSINESS ASSOCIATE.  Optum agrees to:
   2.1  not use and/or further disclose PHI except as necessary to provide the Services, as permitted or required by this Addendum, and in compliance with each applicable requirement of 45 C.F.R. § 164.504(e), or as otherwise Required by Law; provided that, to the extent Optum is to carry out Client's obligations under the Privacy Rule, Optum will comply with the requirements of the Privacy Rule that apply to Client in the performance of those obligations.
   2.2  implement and use appropriate administrative, physical and technical safeguards and comply with applicable Security Rule requirements with respect to ePHI, to prevent use or disclosure of PHI other than as provided for by this Addendum.
   2.3  without unreasonable delay, report to Client: (i) any use or disclosure of PHI not provided for by this Addendum of which it becomes aware in accordance with 45 C.F.R. § 164.504(e)(2)(ii)(C); and/or (ii) any Security Incident of which Optum becomes aware in accordance with 45 C.F.R. § 164.314(a)(2)(i)(C).
   2.4  with respect to any use or disclosure of Unsecured PHI not permitted by the Privacy Rule that is caused solely by Optum's failure to comply with one or more of its obligations under this Addendum, Client hereby delegates to Optum the responsibility for determining when any such incident is a Breach and for providing all legally required notifications to Individuals, HHS and/or the media, on behalf of Client. Optum shall provide these notifications in accordance with the notification requirements set forth in the Breach Rule, and shall pay for the reasonable and actual costs associated with those notifications. In the event of a Breach, without unreasonable delay, and in any event no later than thirty (30) calendar days after Discovery, Optum shall provide Client with written notification in accordance with 45 C.F.R. § 164.410 that includes a description of the Breach, a list of Individuals (unless Client is a plan sponsor ineligible to receive PHI) and, in the event the delegation set forth above has been triggered, a copy of the template notification letter to be sent to Individuals.
   2.5  in accordance with 45 C.F.R. § 164.502(e)(1)(ii) and 45 C.F.R. § 164.308(b)(2), ensure that any subcontractors of Optum that create, receive, maintain or transmit PHI on behalf of Optum agree, in writing, to the same restrictions and conditions on the use and/or disclosure of PHI that apply to Optum with respect to that PHI, including complying with the applicable Security Rule requirements with respect to ePHI.
   2.6  make available its internal practices, books and records relating to the use and disclosure of PHI to the Secretary for purposes of determining Client's compliance with the Privacy Rule.
   2.7  document, and within thirty (30) days after receiving a written request from Client, make available to Client, information necessary for Client to make an accounting of disclosures of PHI about an Individual, in accordance with 45 C.F.R. § 164.528.
   2.8  provide access, within twenty (20) days after receiving a written request from Client, to PHI in a Designated Record Set about an Individual, to Client, sufficient to allow Client to comply with the requirements of 45 C.F.R. § 164.524
   2.9  to the extent that the PHI in Optum's possession constitutes a Designated Record Set, make available, within thirty (30) days after a written request by Client, PHI for amendment and incorporate any amendments to the PHI as requested by Client, all in accordance with 45 C.F.R. § 164.526.
3. RESPONSIBILITIES OF COVERED ENTITY.  Client shall be responsible for using administrative, physical and technical safeguards at all times to maintain and ensure the confidentiality, privacy and security of PHI transmitted to Optum pursuant to the Agreement, including this Addendum, in accordance with the standards and requirements of HIPAA, before and during the transmission of such PHI to Optum; and shall obtain any consent or authorization that may be required by applicable federal or state laws and regulations prior to furnishing Optum the PHI for use and disclosure in accordance with this Addendum.
4. PERMITTED USES AND DISCLOSURES OF PHI.  Unless otherwise limited in this Addendum, in addition to any other uses and/or disclosures permitted or required by this Addendum, Optum may:
   4.1  make any and all uses and disclosures of PHI necessary to provide the Services to Client.
   4.2  use and disclose PHI for the proper management and administration of Optum or to carry out the legal responsibilities of Optum, provided that the disclosures are Required by Law or any third party to which Optum discloses PHI for those purposes provides written assurances in advance that: (i) the information will be held confidentially and used or further disclosed only for the purpose for which it was disclosed to the third party or as Required by Law; and (ii) the third party promptly will notify Optum of any instances of which it becomes aware in which the confidentiality of the information has been breached.
   4.3  De-identify any and all PHI received or created by Optum under this Addendum, which De-identified information shall not be subject to this Addendum and may be used and disclosed on Optum's own behalf, all in accordance with the De-identification requirements of the Privacy Rule.
   4.4  provide Data Aggregation services relating to the Health Care Operations of the Client in accordance with the Privacy Rule.
5. TERMINATION
   5.1  Termination. If either Party knows of a pattern of activity or practice of the other Party that constitutes a material breach or violation of this Addendum then the non-breaching Party shall provide written notice of the breach or violation to the other Party that specifies the nature of the breach or violation. The breaching Party must cure the breach or end the violation on or before thirty (30) days after receipt of the written notice. In the absence of a cure reasonably satisfactory to the non-breaching Party within the specified time frame, or in the event the breach is reasonably incapable of cure, then the non-breaching Party may terminate the Agreement and/or this Addendum.
   5.2  Effect of Termination or Expiration. Within sixty (60) days after the expiration or termination for any reason of the Agreement and/or this Addendum, Optum shall return or destroy all PHI, if feasible to do so, including all PHI in possession of Optum's subcontractors. In the event that Optum determines that return or destruction of the PHI is not feasible, Optum may retain the PHI subject to this Section. Under any circumstances, Optum shall extend any and all protections, limitations and restrictions contained in this Addendum to Optum's use and/or disclosure of any PHI retained after the expiration or termination of the Agreement and/or this Addendum, and shall limit any further uses and/or disclosures solely to the purposes that make return or destruction of the PHI infeasible.
6. MISCELLANEOUS.  The terms of this Addendum to the extent they are unclear shall be construed to allow for compliance by Client and Optum with HIPAA. Section 5.2 shall survive the expiration or termination for any reason of the Agreement and/or of this Addendum. Nothing in this Addendum shall confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.