ONYE TERMS OF USE
PLEASE READ AND UNDERSTAND THIS AGREEMENT BEFORE USING ONYE SERVICES. BY ACCESSING OR USING OUR ELECTONIC HEALTH RECORD SYSTEM, YOU (“the User”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES
This SOFTWARE AS A SERVICE AGREEMENT (“Agreement”) is entered into between User and Onye (“Onye”), with its principal place of business at 59, ICE Road, Off Wire Road, Ihogbe Quatres, Benin-City, Edo State, Nigeria. Onye and User agree that the following terms and conditions will apply to the services provided under this Agreement.
“Administrator User” means each User employee designated by User to serve as technical administrator of the SaaS Services on User’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by Onye.
“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Onye to User regarding the use or operation of the SaaS Services.
“EHR” means the SaaS which is a web-based Lite Electronic Health Record (EHR) system that will enable healthcare providers (users) to capture clinical data.
“Host” means the computer equipment on which the Software is installed, which is owned and operated by One or its subcontractors.
“Maintenance Services” means the support and maintenance services provided by Onye to User under this Agreement.
“Other Services” means all technical and non-technical services performed or delivered by Onye under this SaaS Agreement or incidental to the performance of the company’s services under this Agreement, including, without limitation, implementation services and other professional services, training, and education services. Other Services will be provided on a time and material basis at such times or during such periods, as may be mutually agreed to by the parties.
“Quarter(ly)” means three clear calendar months running consecutively.
“Software” means the object code version of any software to which User is provided access as part of the Service, including any updates or new versions.
“SaaS Services” specifically refers to EHR; Onye’s cloud-based Electronic Health Record System or its services provider and made available to User over a network on a term-use basis.
“Subscription Term” shall mean that period specified in a Schedule during which User will have on-line access and use of the Software through Onye’s SaaS Services. The Subscription Term shall be quarterly, and Users are required to renew subscriptions, 30 days before the expiration of the current term unless either party delivers notice of non-renewal to the other party within the said 30 days.
“User Content” means all data and materials provided by User to Onye for use in connection with the SaaS Services, including, without limitation, medical records, User applications, data files, and graphics.
2.1 During the Subscription Term, User will receive a non-exclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for your internal business operations subject to the terms of this Agreement.
The services comprise two components as follows:
- Digital front-office
Digital front-office comprises administrative dashboard, appointment reminders, payment processing, patient self-scheduling, patient intake, e-registration.
-Order management and clinical documentation
Order management and clinical documentation comprises doctor-to-doctor communication, doctor-to-patient communication, codified International Classification of Diseases - 10/11 (ICD10/11) and Diagnosis Related Group (DRG) 2022, speech-to-text documentation, patient history documentation, clinical decision support, e-prescription, and medical laboratory requests.
2.2 User acknowledges that this Agreement is a services Agreement and Onye will not be delivering copies of the Software to User as part of the SaaS Services.
User shall not do the following or use the SaaS in this manner.
Onye shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. User agrees to assign all right, title and interest it may have in the foregoing to Onye.
4.1 Provide information and Assistance. User shall provide reasonable and accurate information and assistance to Onye to enable Onye to deliver the SaaS Services. Upon request from Onye, the User shall promptly deliver User Content to Onye in an electronic file format specified and accessible by Onye. User acknowledges that Onye’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2 Compliance with Laws. The User shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. User acknowledges that Onye exercises no control over the content of the information uploaded and stored on the EHR system. User shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.3 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Periscope account, passwords (including but not limited to administrative and user passwords) and files. Periscope is not responsible for any losses, damages, costs, expenses, or claims that result from stolen or lost passwords.
4.4 Unauthorized Use; False Information. User shall: (a) notify Onye immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Onye immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by User or any Identity Cube user, and (c) not provide false identity information to gain access to or use the SaaS Services.
4.5 Administrator Access. User shall be solely responsible for the acts and omissions of its Administrator Users. Onye shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
4.6 User Input. User is solely responsible for collecting, inputting and updating all User Content stored on the Host, and for ensuring that the User Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. User shall: (i) notify Onye immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Onye immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by User or any Identity Cube user, and (iii) not provide false identity information to gain access to or use the Service.
4.7 License from User. Subject to the terms and conditions of this SaaS Agreement, User shall grant to Onye a limited, non-exclusive, and non-transferable license, to copy, store, configure, perform, display, and transmit User Content solely as necessary to provide the SaaS Services to User.
5.1 Orders. User shall order SaaS Services pursuant to a Schedule. All services acquired by User shall be governed exclusively by this SaaS Agreement.
5.2 Invoicing and Payment. Unless otherwise provided in the Schedule, Onye shall invoice User for all fees on the Schedule effective date. User shall pay all undisputed invoices within 30 days after User receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars and must be paid by User to Onye in United States Dollars.
5.3 Expenses. User will reimburse Onye for its reasonable, out-of-pocket travel and related expenses incurred in performing the Other Services. Onye shall notify User prior to incurring any such expense. Onye shall comply with User’s travel and expense policy if made available to Onye prior to the required travel.
5.4 Taxes. Onye shall bill User for applicable taxes as a separate line item on each invoice. User shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to User’s purchase and use of the services. User shall not be liable for taxes based on Onye’s net income, capital, or corporate franchise.
6.1 Term of SaaS Agreement. The term of this SaaS Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Section.
6.2 Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
6.3 Suspension for Non-Payment. Onye reserves the right to suspend delivery of the SaaS Services if User fails to timely pay the renewal subscription amount 30 days before the current subscription term expires under this SaaS Agreement, but only after Onye notifies User of such failure and such failure continues for seven (7) days. Suspension of the SaaS Services shall not release User of its payment obligations under this SaaS Agreement. The User agrees that Onye shall not be liable to User or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from User’s nonpayment.
6.4 Suspension for Ongoing Harm. Onye reserves the right to suspend delivery of the SaaS Services if Onye reasonably concludes that User’s use of the SaaS Services is causing immediate and ongoing harm to Onye or others. In the extraordinary case that Onye must suspend delivery of the SaaS Services, Onye shall immediately notify User of the suspension and the parties shall diligently attempt to resolve the issue. Onye shall not be liable to User or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with Section 6.4.
Nothing in this Section 6.4 will limit Onye’s rights under Section 6.5 below.
6.5 Effect of Termination.
The Service Level SaaS Agreement (“SLA”) for the SaaS Services is set forth in Exhibit A hereto. The SLA sets forth User’s sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in the SLA.
8.1 Onye represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any breach of a warranty, the User’s exclusive remedy shall be as provided in Section 6, Term and Termination.
8.2 The Onye Lite EHR platform will be HIPAA compliant for patient data privacy and security. Onye will monitor, audit, and update security on an ongoing basis. Onye will monitor, audit and update the platform for performance, bugs and added features on an ongoing basis.
8.2 Onye warrants that the SaaS services will perform in all material respects in accordance with the documentation. Onye does not guarantee that the SaaS services will be performed error-free or uninterrupted, or that Onye will correct all SaaS services errors. User acknowledges that Onye does not control the transfer of data over communications facilities, including the internet, and that the SaaS service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. This section sets forth the sole and exclusive warranty given by Onye (express or implied) with respect to the subject matter of this Agreement.
Neither Onye nor any of its licensors or other suppliers warrant or guarantee that the operation of the subscription service will be uninterrupted, virus-free, or error-free, nor shall Onye or any of its service providers be liable for unauthorized alteration, theft or destruction of user’s or any user’s data, files, or programs.
User retains ownership and intellectual property rights in and to its User Content. Onye or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. User’s right to use such third-party technology is governed by the terms of the third-party license Agreement specified by Onye and not under the Agreement.
No rights or licenses are granted except as expressly set forth herein.
10.1 Neither party’s aggregate liability for damages under this SaaS Agreement, regardless of the nature of the claim (including negligence), shall exceed the fees paid or payable by user under this Agreement during the subscription term preceding the date the claim arose. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.
Onye shall not be responsible if information made available on this app is not accurate, complete, or current. The user has the sole responsibility to ensure that patient information and all records stored on the system are accurate and complete.
10.1 Indemnification by Onye. If a third party makes a claim against User that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Onye’s negligence or willful misconduct has caused bodily injury or death, Onye shall defend User and its directors, officers and employees against the claim at Onye’s expense and Onye shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement Agreement signed by Onye, to the extent arising from the claim. Onye shall have no liability for any claim based on (a) the User Content, (b) modification of the SaaS Services not authorized by Onye, or (c) use of the SaaS Services other than in accordance with this SaaS Agreement. Onye may, at its sole option and expense, procure for User the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to User any amount paid by User with respect to the Subscription Term following the termination date.
10.2 Indemnification by User. If a third party makes a claim against Onye that the User Content infringes any patent, copyright or trademark, or misappropriates any trade secret, User shall defend Onye and its directors, officers and employees against the claim at User’s expense and User shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement Agreement signed by User, to the extent arising from the claim.
10.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information, and authority reasonably requested by the other party in the defense and settlement of the claim.
11.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable, or other tangible
form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this SaaS Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of User Content as contemplated by this SaaS Agreement, User Content is deemed Confidential Information of User. Onye software and EHR system are deemed Confidential Information of Onye.
11.2 Confidentiality. During the term of this SaaS Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
Neither party shall reverse engineer, disassemble, or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information, and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality Agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
11.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this SaaS Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers, and investors.
12.1 Non-Exclusivity of Service. User acknowledges that this SaaS Services is provided on a nonexclusive basis. Nothing shall be deemed to prevent or restrict Onye from roding the SaaS Services or other similar service or technology, including any features or functionality first developed for User, to other parties.
12.2 Personal Data. User hereby acknowledges and agrees that Onye’s performance of this SaaS Agreement may require Onye to process, transmit and/or store User personal data or the personal data of User employees and patients/clients. By submitting personal data to Onye, User agrees that Onye may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Onye to perform its obligations under this SaaS Agreement and in conformity with both local and international data protection regulations. User agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content/information stored on Onye SaaS cloud. User confirms that User is solely responsible for any Personal Data that may be contained in Content, including any information which any Onye SaaS User shares with third parties on User’s behalf.
12.3 Onye Personal Data Obligations. In performing the SaaS Services, Onye will comply with the Onye Services Privacy Policy, which is available at www.onyeone.com and incorporated herein by reference. The policy is subject to change at Onye’s discretion; however, Onye policy changes will not result in a material reduction in the level of protection provided for User data during the subscription term. The services policies referenced in this SaaS Agreement specify our respective responsibilities for maintaining the security of User data in connection with the SaaS and how such data will be used.
User shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retain ownership of all of User data.
12.4 Assignment. Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this SaaS Agreement to an acquirer of all or substantially all of the business of such party to which this SaaS Agreement relates, whether by merger, asset sale or otherwise. This SaaS Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this SaaS Agreement, provided, however, that such party shall not be relieved of any obligation under this SaaS Agreement.
12.5 Notices. Except as otherwise permitted in this SaaS Agreement, notices under this SaaS Agreement shall be in writing and shall be deemed to have been given through electronic mail, [email protected], or Fax to the addresses provided in this Agreement or subsequently by parties.
12.6 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
12.7 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SaaS Agreement shall not constitute a waiver of any other or subsequent breach.
12.8 Severability. If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.
12.9 Governing Law. This SaaS Agreement shall be governed by the laws of the State of the Federal Republic of Nigeria and the Courts of Nigeria have the jurisdiction over any dispute arising therefrom.
12.10 Compliance with Laws. Onye shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
12.11 Dispute Resolution. Except with respect to intellectual property rights, if a dispute arises between the parties.
12.11.1 The Parties shall in good faith seek to amicably resolve any dispute arising from the interpretation of or connected with this Agreement or any part thereof. If the Parties are unable to resolve any such dispute within fourteen (14) days or such period as the Parties may subsequently agree, the Parties irrevocably agree that such dispute shall be referred to Mediation conducted by a Sole Mediator mutually agreed by the parties and in default of such appointment, the Mediator shall be appointed by the Executive Director of the Lagos Multi-Door Courthouse, Igbosere, Lagos from the Panel of Neutrals of the Lagos Multi-Door Courthouse. The Parties shall be represented at the Mediation by their representatives who shall have full authority to settle the dispute. The parties shall bear the costs of the Mediation in equal shares. In the event the parties are unable to settle the dispute difference or controversy by Mediation within 15 (fifteen) days of the appointment of the Mediator as herein provided or within such period of time agreed by the parties, either Party may approach a Court of competent jurisdiction for the resolution of the dispute.
12.11.2 If the Parties are unable to reach an amicable resolution within thirty (30) days from the commencement of mediation with the Lagos Multi-Door Courthouse as mentioned above, the Parties may commence with court proceedings in relation to the dispute.
EXHIBIT A
The Single Sign-On (SSO) SaaS Services will achieve System Availability (as defined below) of at least 99.9% during each quarter of the Subscription Term. All other SaaS Services will achieve System Availability (as defined below) of at least 99% during each calendar quarter of the Subscription Term. “System Availability” means the number of minutes in a subscription term that the key components of the SaaS Services are operational as a percentage of the total number of minutes in such subscription term, excluding downtime resulting from (a) scheduled maintenance, (b) events of Force Majeure in the SaaS Agreement), (c) malicious attacks on the system, (d) issues associated with the User’s computing devices, local area networks or internet service provider connections, or (e) inability to deliver services because of acts or omissions of User. Onye reserves the right to take the Service offline for scheduled maintenance for which User has been provided reasonable notice and Onye reserves the right to change its maintenance window upon prior notice to User.
If Onye fails to meet System Availability in the quarter, upon written request by User within 15 days after the end of the quarter, Onye will issue a credit in User’s next invoice in an amount equal to 1% of the quarterly fee for the affected SaaS Services for each 1% loss of System Availability below stated SLA, up to a maximum of the User’s fee. If the quarterly fee has been paid in advance, then at User’s election Onye shall provide a credit to User to be used for term extension. The remedy stated in this paragraph is User’s sole and exclusive remedy for interruption of SaaS Services and Onye’s failure to meet System Availability.