These Epic Pass-Through Terms are required by Epic Systems Corporation, StayWell’s third-party licensor (“Epic”), are non-negotiable, and are incorporated into any Order Form (inclusive of any Exhibits, Schedules, Appendices, or Attachments thereto and any statements of work or other similar documents executed thereunder), referencing them. Notwithstanding anything to the contrary in the applicable Order Form or other agreement between the parties, the parties agree that the Epic Pass-Through Terms shall govern the use of the Krames On FHIR only and, to the extent that the Epic Pass-Through Terms conflict with any terms set forth in the Agreement, the Epic Pass-Through Terms shall control only with respect to Krames On FHIR.
- Parties to this Order Form. The parties acknowledge that the Order Form is between StayWell and Client only and is not an agreement with Epic. StayWell, not Epic, is solely responsible for Krames On FHIR, and the content contained therein. By executing this Order Form, Client acknowledges and agrees that the terms of this Order Form do not have the effect of Client breaching or being in conflict with Client’s license agreement in place with Epic for Client’s use of Epic Software or the license agreement for any third-party software or content that is sublicensed by Epic to the Client (including any operating environment software) or for any other software or content used in any Client system.
- Contact, Maintenance, and Support. StayWell is solely responsible for any maintenance and support with respect to Krames On FHIR. StayWell and Client acknowledge that Epic is not under an obligation to provide any maintenance or support services related to Krames On FHIR. Client acknowledges that, if Epic chooses to provide any maintenance or support services connected to Krames On FHIR, Epic may charge its then current fees for such maintenance and support to Client. If Client has questions regarding support, it may contact StayWell at help@staywell.com. If client has questions regarding claims, demands, and actions, and all liabilities, damages, and expenses arising out of or relating thereto, including without limitation settlement costs and attorneys’ fees under this agreement (“Claims”), Client may contact StayWell at legalsupport@staywell.com.
- Warranties. The parties agree that, to the extent that warranties are offered Krames On FHIR, such warranties are the sole responsibility of StayWell and that Epic will have no obligations in connection with a warranty for offered Krames On FHIR.
- Claims. The parties acknowledge that StayWell, not Epic, is responsible for all Claims of the Client or any third party arising out of or relating to Krames On FHIR, including but not limited to Claims (a) alleging product liability, errors in Krames On FHIR (including but not limited to corruption of data), breach of PHI, hacking or cyberattack which used or involved Krames On FHIR in any way, (b) that Krames On FHIR failed to conform to any applicable legal or regulatory requirement, (c) involving any violations of consumer protection laws, (d) that Krames On FHIR interfered with or could interfere with the safety or security of the software licensed or otherwise provided by Epic to any StayWell or Client (“Epic Software”_) or that Krames On FHIR otherwise endangered patient safety or security, (e) that Krames On FHIR caused service interruptions, (f) that Krames On FHIR provided any misleading or inaccurate information to a user, (g) that Krames On FHIR caused performance degradation, (h) Krames On FHIR was used as a vector for the introduction of viruses or malware into the Epic Software, a user device, or otherwise, or (i) that Krames On FHIR introduced or otherwise caused a security vulnerability in the Epic Software or Client’s network. The parties agree that if a third-party claims that Krames On FHIR, or Client’s use of the same, infringes that third party’s intellectual property rights, then StayWell, not Epic, will be solely responsible for the Claim, including but not limited to all costs associated with investigation, defense, and settlement.
- Third Party Beneficiary. Solely for the purposes of this Order Form, and solely with respect to Krames On FHIR, the parties agree that (a) Epic and (b) any entity (i) that directly or indirectly owns or controls more than fifty percent of Epic, or (ii) is more than fifty percent owned or controlled, directly or indirectly, by Epic or an entity described in clause (i) (each, an “Epic Owned Entity”), shall be third party beneficiaries of this Order Form. Upon the Client’s execution of this Order Form, Epic and any Epic Owned Entity will have the right to enforce the Order Form against the parties as a third-party beneficiary of the Order Form.
- StayWell retains the following data from Krames On FHIR: Patient Information including Current Encounter ID, Current User ID, Account ID, Patient’s MRN, Data of Birth, Name, Email Address, Gender, Preferred Language, Condition and Diagnosis List, Medications List, Procedures List as well as Practitioner Information including Name, User ID and Account ID; such data is retained for a minimum of ten (10) years. This data is used for the following secondary purposes: to identify the patient in Krames On FHIR, associate favorites and search view preferences, and to personalize documents and recommend pertinent content, StayWell may also provide the data to its third-party vendors for the purposes of providing the services and content hereunder. By executing this Order Form, Client expressly consents to such collection, retention, and use. In addition to the costs set forth herein, the following additional costs may be required by a user to implement or otherwise use Krames On FHIR: a transcription interface license from Epic. Krames On FHIR has, or may have, access to the following third-party content or data in Client’s system: clinical code sets.
- Audit. Upon reasonable advance notice, Client may conduct an audit of StayWell to verify StayWell’s with these Epic Pass-Through Terms. StayWell shall reasonably cooperate with such audit. The audit shall be at Client’s expense, unless material non-compliance is discovered as a result of the audit, in which case StayWell shall bear the costs of such audit.
- Indemnification. StayWell shall indemnify the Client for any third-party Claims that the sale of Krames On FHIR, or Client’s use of the same, infringes (or causes, induces, or otherwise leads to a Recipient infringing) any third-party intellectual property or proprietary right, including but not limited to any Claim alleging that Krames On FHIR infringes (or causes, induces, or otherwise leads to Client infringing) the rights of any owner of any clinical code set, content, image, patient instruction, video, or any other third-party information.
Last Updated: September 2020
