CRA Analytics 2.0

This Terms of Use Agreement ("Agreement") is effective on the date you effectively accept its terms as recorded in our electronic logs (the "Effective Date"), is by and between you, the User ("Client") and CRA Financial & Consulting Group, Inc. (hereinafter “CRA”), a Puerto Rico corporation, with its principal office Edificio Valencia 1 Suite 410, Metro Office Park, Guaynabo, PR, 00969, for the procurement of Services (as defined in Section 1 Services below) from CRA in accordance with this Agreement. All references herein to "Client" shall refer to Client, its affiliates and/or End Users that are receiving the CRA Products and Services (as those terms are defined in Section I. GENERAL TERMS) pursuant hereto.

RECITALS

WHEREAS, CRA is a corporation dedicated to providing consulting and advice in the planning, administration, and organization of healthcare, management and finance models.
WHEREAS, CRA offers its clients access, through the Internet, proprietary software which End Users utilize to data analysis. (hereinafter “Software as a Service” or “SaaS”);
WHEREAS, both parties have agreed to enter into this Agreement for the provision of selected SaaS.

I. GENERAL TERMS

A. CRA Products and Services. CRA Products shall mean:

1. SaaS – Software as a Service. The Software used by CRA is known as CRA Analytics. CRA Analytics includes the following modules, which Client shall select and approve each of the modules it desires to access: (i) Executive Dashboard; (ii) Reports by Insurance; (iii) Unified Data Reports; (iv) RAF; and (v) Benefit Plan --------.CRA Analytics is tool focused on consolidating intelligence and data analysis programed and maintained by CRA. Both the software and the Client data reside at CRA’s servers. End Users access the software and the Client data through an Internet encrypted connection to CRA’s servers.

B. End-Users.

End Users shall be named and authorized, in writing, by Client. End Users for the purposes of this Agreement are defined as: i) Client’s authorized employees, consultants, agents, contractors or temporary employees who use the CRA Products or Services; ii) Client’s customers or visitors who have an authorized access to Client’s system utilizing CRA Products or Services; iii) such other persons as CRA may authorize in writing. Client certifies that the execution of this Agreement is made and entered into by a duly authorized officer of Client and said execution warrants that any use by Client or any End User shall be made under the terms and conditions of this Agreement. Client may designate multiple End Users under Client’s account, which will correspond to the level of services provided to or accessed by Client. Each End User shall have its unique username and password to access CRA Products or Services. The license to access provided herein is strictly subject to Client’s compliance with the terms of this Agreement as well as by all End Users and all other users of Client’s account. Client is ultimately responsible for administering and safeguarding any passwords created to control access to CRA’s Products or Services.

C. License Rights.

CRA hereby grants Client a limited, revocable, non-exclusive, non-transferable, and no-sub-licensable right to access the CRA Products or Services during the Term of this Agreement and in the manner contemplated by this Agreement. The right to use the CRA Products is granted to Client for the sole purpose of utilizing the Services described herein. Any license or right to access the CRA Products shall automatically terminate upon termination of this Agreement and/or CRA when ceases to provide Client with related Services, if any.

D. Use of CRA Products and Services.

CRA Products and Services include confidential and proprietary information. Client shall use CRA Products and Services only for the internal lawful business purposes of Client. Client shall not provide, directly or indirectly, any of CRA Products or Services, or any portion thereof, to any party other than the Client. Client shall not provide service bureau or other data processing services that make use of CRA Products or Services, or any part thereof, without the express written consent of CRA. Client shall be responsible for ensuring that its employees, or any other persons authorized by Client to access or use the CRA Products or Services comply with all the terms of this Agreement. Client shall not damage, disable, overburden or materially impair CRA Products or Services.

E. Protection of Client Files.

CRA maintains appropriate security measures to protect the personal information of Client consistent with applicable state and federal laws. Additionally, CRA will employ commercially reasonable storage (including backup, archive and redundant data storage, on-site and off-site) and commercially reasonable precautions to prevent the loss of, or alteration to, Client's data files and/or Client Content (as defined in Section 1 Client Content) in CRA's possession, but CRA does not undertake to guarantee against any such loss or alteration. CRA is not, and will not be, Client's official record keeper. Accordingly, Client will, to the extent it deems necessary, keep copies of all source documents of the information delivered to CRA (including maintaining printouts or electronic copies of Client Content input into any CRA Internet Service (as defined in Section 1 Client Content)).

F. Client Content.

"Client Content" shall mean: (i) Clients's monthly data, provided by insurance companies, related to membership, medical claims and pharmacy claims., as well as (ii) Client's trademarks, trade names, service marks, logos and designs provided by Client, (the "Authorized Marks"); which CRA includes, either directly as part of its setup services or through Client or any of its employees, in any web-based CRA Product. Client shall be solely responsible for obtaining all required rights and licenses to use and display the Client Content and for updating and maintaining the completeness and accuracy of all Client Content. Client grants CRA a right to use the Client Content for the sole purpose of providing CRA Products and Services.

G. CRA Content.

CRA Analytics are web-based portals that provide a point of access to CRA online solutions and resources related to data analysis matters. Client understands that CRA may include informational content, forms and tools, banner advertisements for CRA and/or third-party products and services, on the client self-administration portion of CRA’s CRA Analytics. Upon written request by Client, CRA will remove banner advertisements that CRA has posted to CRA’s Analytics, which represent offers or promotions from CRA or CRA partners.

H. No Transfer, Modification, etc.

Client shall not, and shall not cause or permit others to assign, loan, sublicense, alter, modify, adapt, reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, all or any portion of the CRA Products or Services, including Internet Services or any access or use thereof. Client will not write or modify interfaces or reports to any CRA Products, Services, or Internet Service except as expressly authorized by CRA. CLIENT WILL NOT RECOMPILE, DISASSEMBLE, REVERSE ENGINEER, OR MAKE OR DISTRIBUTE ANY OTHER FORM OF, OR ANY DERIVATIVE WORK FROM, CRA’S CRA ANALYTICS OR ANY CRA PRODUCT OR SERVICE.

I. Password Protection.

Client and End User agree to maintain the privacy of user names and passwords associated with CRA Products, Services or Internet Services. Client is fully responsible for all activities that occur under Client's or End Users, password or Internet account. Client agrees to: (i) immediately notify CRA of any unauthorized use of Client's password or Internet account or any other breach of security; (ii) immediately notify to CRA, in writing, if any End User account must be cancelled or inactivated and request written confirmation when maintenance is completed; and (iii) ensure that Client exits (“log off”) from Client's Internet account at the end of each session. CRA shall not be liable for any damages incurred by Client or any third party arising from Client's failure to comply with this section.

J. Links to Third Party Sites.

The Site(s) may contain links to other Internet sites. Links to and from a Site to other third-party sites do not constitute an endorsement by CRA or any of its subsidiaries or affiliates of such third-party sites, an acceptance of responsibility for the content on such sites or any data transfer to such sites.

K. Indemnity.

Client agrees to defend, indemnify and hold CRA harmless from and against any and all claims, losses, liability costs and expenses including, but not limited to, attorneys' fees arising from its violation of this Agreement, state or federal laws or regulations, or any third party's rights including, but not limited to, infringement or violation of any copyright, or any proprietary right and/or invasion of any privacy rights. L. Duty to Consult. Client shall be responsible for consulting CRA with relation to any determinations on the use of the SaaS. If such consult is not made, any guarantee or responsibility under the limitation on liabilities of this Agreement will be withdrawn and will not be valid.

M. Accuracy of Client Information.

All Services provided hereunder will be based upon information provided to CRA by Client Upon receipt from CRA, whether electronically or otherwise, and within a term of 5 working days, Client shall review all disbursement records and other reports prepared by CRA for validity and accuracy according to Client's records and shall report, in writing, any discrepancies. A prompt and thorough review allows Client to identify and correct errors and inconsistencies. CRA will not be responsible for the accuracy, correctness or propriety of the documents or information provided by Client. Client shall be responsible for reviewing the accuracy, correctness and propriety of the documents and information that CRA processes and posts. If CRA receives any instructions authorized by Client and the instructions are erroneous in any way or form, CRA shall have no obligations or liability for such error. In addition, CRA will not be responsible for any missing information or lost documents. Information or instructions not posted or processed and received by CRA’s software will not be the responsibility of CRA and CRA does not represent it will process or post said information if the same was not provided in accordance with this Agreement, the Addendums and the instructions presented to Client.

N. Compliance with Laws.

Client acknowledges that the CRA Products and Services are designed to assist Client in collect and analyze data related to utilization, patient medical history, data consolidation, among others, but that Client, and not CRA, shall be solely responsible for: (i) compliance with all laws and governmental regulations affecting its business, and (ii) any use Client may make of the CRA Products and/or Services, including any reports and worksheets produced in connection therewith, to assist it in complying with such laws and governmental regulations. Client will NOT rely solely on its use of the CRA Products and/or Services in complying with any laws and governmental regulations. Client will be responsible for complying with all requirements of applicable law or regulation, that affect its business generally or regarding security breaches and suspected security breaches involving personal information that is stored on the computer systems.

O. Disclaimer.

CRA IS NOT A CERTIFIED PUBLIC ACCOUNTING OR LEGAL FIRM. CRA DOES NOT WARRANT THE PROVISION OF ANY LEGAL OR ACCOUNTING ADVICE. Client acknowledges and agrees that CRA will not be deemed to be providing legal, financial, benefits, or tax advice to Client as a result of the CRA Products or Services provided herein. Any consulting provided by CRA is considered guidance to Client. Under the CRA Products or Services, any decisions and actions taken by Client are the ultimate responsibility of Client and CRA does not represent any guarantee or responsibility for the same.

II. FEES, PAYMENTS AND TAXES

A. Fees.

Client shall pay CRA for the CRA Products and Services at the rates specified in the Service Rates published at CRA’s web site, for the term set forth therein or, if applicable, the executed Proposal. Client shall pay CRA for the CRA Products and Services additionally requested by Client after the Effective Date of this Agreement at CRA's then prevailing rates for such CRA Products and Services. CRA may increase rates for the CRA Products and Services at any time upon at least thirty (30) days prior written notice to Client, if such change is part of a general price change by CRA.

B. Payments.

CRA will electronically debit on or before the 5th of each month a Minimum Monthly Fee to be set and/or agreed upon in the Price Agreement or the executed Proposal. During the first week following each month of service, CRA will issue a detailed invoice, if additional transactions or services were rendered. Invoice will be delivered electronically by e-mail and shall be electronically collected on or before the 20th of that month.

B. Payments.

CRA will electronically debit on or before the 5th of each month a Minimum Monthly Fee to be set and/or agreed upon in the Price Agreement or the executed Proposal. During the first week following each month of service, CRA will issue a detailed invoice, if additional transactions or services were rendered. Invoice will be delivered electronically by e-mail and shall be electronically collected on or before the 20th of that month.
Client shall reimburse CRA for any expenses incurred, including interest and reasonable attorney fees, in collecting amounts due to CRA hereunder that are not under good faith dispute by Client.

C. Taxes.

Client shall be responsible for payment of all taxes (excluding those on CRA's net income) relating to the provision of CRA Products and Services.

III. INTELLECTUAL PROPERTY

A. Ownership and Proprietary Rights

All CRA Products and Services licensed to Client hereunder are the licensed and/or owned property of, and embody the proprietary trade secret technology of CRA and/or its licensor(s) and are protected by copyright laws, international copyright treaties, as well as other intellectual property laws, that among other things, prohibit the unauthorized use and copying of any CRA Products and Services. Client receives no rights to any CRA Products and Services or any intellectual property of CRA or its licensors, except as expressly stated herein, and nothing in this Agreement shall transfer any ownership rights to Client or End User. CRA owns and shall retain all worldwide rights, title and interest in and to all materials, trade secrets, benefit design, network configurations, fee schedules, protocols, service processes, business rules, software and documentation provided by CRA. CRA expressly reserves all rights in CRA Products and Services.

B. Use of Client's Authorized Marks.

In the event that CRA makes available branding of any materials, cards and/or websites associated with CRA Products and Services and Client requests such branding, Client grants CRA, the card issuers and/or any third-party service providers designated by CRA the right to display Authorized Marks, subject to Client's right to review and approve the copy prior to the use of such Authorized Marks.

IV. NON DISCLOSURE

A. Non Disclosure.

Client agrees to protect and hold and to cause all End Users to protect and hold all Confidential Information in strict confidence and to take all reasonable steps necessary to protect the Confidential Information from unauthorized and/or inadvertent disclosure. All Confidential Information (as defined below) disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving party will limit access to Confidential Information to its affiliates, employees and authorized representatives in a need to know basis and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party: (i) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it; (ii) as appropriate and with prior notice where practicable, to respond to any summons or subpoena or in connection with any litigation, and (iii) relating to a specific employee, to the extent such employee has consented to its release. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession. Notwithstanding the foregoing, CRA may retain information for regulatory purposes or in back-up files, provided that CRA's confidentiality obligations hereunder continue to apply.
For purposes of this Section, "Confidential Information" shall mean: all information of a confidential or proprietary nature, including utilization, patient history, health insurance information, claims, finance data, provided by the disclosing party to the receiving party for use in connection with CRA Products or Services, or both. It will not include: (i) information that is already known by the receiving party; (ii) information that becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement; and (iii) information that becomes known to the receiving party from a source other than the disclosing party on a non-confidential basis. The obligations of CRA set forth in this Section 5 shall not apply to any suggestions and feedback for product or service improvement, correction, or modification provided by Client in connection with any present or future CRA product or service, and, accordingly, neither CRA nor any of its clients or business partners shall have any obligation or liability to Client with respect to any use or disclosure of such information. Client and End Users will not export, re-export, divert, transfer or disclose, directly or indirectly, the Software or any related technical information, documents or materials, or any direct product thereof, to any person without the prior written approval of CRA. The obligations of this Section will survive the termination of this Agreement.

V. TERM AND TERMINATION; DEFAULT

A. Term.

The term of this Agreement shall be for six (6) years, commencing on the execution date of this Agreement.

B. Termination\Suspension.

This Agreement will automatically renew each six (6) years. Subject to the terms of any Price Agreement, CRA or Client may terminate this Agreement or any Service(s) provided hereunder without cause with a thirty (30) day prior written notice. Either party may also suspend performance and/or terminate this Agreement immediately upon written notice at any time if: (i) the other party is in material breach of any material warranty, term, condition or covenant of this Agreement and fails to cure that breach within thirty (30) calendar days after written notice is given thereof; (ii) the other party ceases business operations; or (iii) the other party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, rearrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other and is not dismissed within ninety (90) calendar days after commencement of one of the foregoing events. CRA may also suspend performance and/or terminate this Agreement immediately without prior written notice in the event Client, its employee(s), End User or any other third party: (i) includes in any CRA Internet Service any Client Content which is obscene, offensive, inappropriate, threatening, or malicious; (ii) which violates any applicable law or regulation or any contract, privacy or other third party right; (iii) which otherwise exposes CRA to civil or criminal liability; or (iv) wrongfully uses or accesses the CRA Products or Services used in the performance of its obligations under this Agreement.

C. Post-Termination

If following the termination of this Agreement, CRA solely determines to provide CRA Products or Services to Client, such services shall be billed and paid on an hourly basis until termination of such services. No action, claim, proceeding or cause of action arising under or in connection with this Agreement, regardless of the form, may be brought by Client later than sixty (60) days after termination or suspension of this Agreement or the use of CRA Products and Services.

VI. DISCLAIMER OF WARRANTIES

A. Online Access.

Certain CRA Products or Services may be accessed by Client and its authorized employees through the Internet at a website provided by CRA or on behalf of CRA, including those hosted by CRA on behalf of Client (a "Site"). Client acknowledges that the security of transmissions over the Internet cannot be guaranteed. CRA is not responsible for: (i) Client's access to the Internet; (ii) interception or interruptions of communications through the Internet; or (iii) change or loss of data through the Internet. If a breach of security is suspected, in order to protect Client's data, and without prior written notice, CRA may immediately suspend Client's, End User’s or third parties' Internet use of the CRA Products or Services.

B. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL EQUIPMENT AND SOFTWARE PROVIDED BY CRA OR ITS SUPPLIERS IS PROVIDED "AS IS" AND CRA AND ITS LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTION OF USE, AND FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE SERVICES, THE CRA PRODUCTS, ANY CUSTOM PROGRAMS CREATED BY CRA OR ANY THIRD-PARTY SOFTWARE DELIVERED BY CRA. CRA AND ITS LICENSORS FURTHER DISCLAIM ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE CRA PRODUCTS AND SERVICES, ANY CUSTOM PROGRAMS CREATED BY CRA OR ANY THIRD-PARTY SOFTWARE DELIVERED BY CRA WILL MEET CLIENT'S NEEDS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM CRA OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. CRA shall make its best efforts to maintain and protect client’s data and accessibility to CRA’s Products and Services. However, CRA does not make any warranties of any kind with respect to loss or corruption of data, loss or damage to equipment and/or Software, System response times, telecommunication lines or other communication devices, quality, availability, reliability, security access delays or access interruptions, nor computer viruses, bugs or errors. CRA does not make any warranties that the Products and Services will not be interrupted or error free or as to the results that may be obtained from the use of the Products and Services and CRA assumes no responsibility. CRA, its affiliates, and their respective representatives are not liable, and expressly disclaim any liability for the content of any data transferred either to, or from, Client or stored by Client via the software provided.

C. No Consequential Damages.

NEITHER CRA NOR CLIENT WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT, DAMAGES FOR BUSINESS INTERRUPTION OR, LOSS OF INFORMATION, THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE CRA PRODUCTS OR SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

D. Infringement.

If CRA receives notice of an infringement claim or otherwise concludes that the Products or Service may infringe the proprietary rights of a Third Party, Client will allow CRA to: (i) procure a Client’s right to continue using the Software; (ii) modify or replace the Software to make it non-infringing, without adversely affecting its operating specifications; or (iii) if CRA determines that neither (i) nor (ii) is practicable, terminate this Agreement and thus End User’s right to use the infringing Software and accept its return. CRA will have no obligation to Client under the above section if the copyright or trade secret infringement claim is based on: (i) a modification of the Software not made or authorized by CRA; (ii) the combination of the Software with an item not supplied by CRA; or (iii) use of the Software in a manner not intended by this Agreement.

VIII. MISCELLANEOUS

A. Inducement.

Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement.

B. Third-Party Beneficiaries.

With respect to the CRA Products and Services, CRA suppliers, vendors and referral partners may enforce the same disclaimers and limitations against Client as CRA may under this Agreement. Other than CRA suppliers, vendors, and referral partners who are intended third-party beneficiaries, nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of, or under, this Agreement. CRA has no obligation to any third party, including Client's employees and/or any taxing authority, by virtue of this Agreement.

C. Force Majeure.

Any party hereto will be excused from complying with its obligations under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, utility or communication failures, or other cause beyond the party's reasonable control. Both parties will use reasonable efforts to mitigate the effect of a force majeure event.

D. Non-Hire.

During the term of this Agreement and for the twelve (12) calendar months thereafter, neither Client nor CRA, shall knowingly solicit or hire for employment or as a consultant, any employee or former employee of the other party.

E. Relationship of the Parties.

The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement. Each party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.

F. Governing Law.

This Agreement is governed by the laws of the Commonwealth of Puerto Rico giving effect to its conflict of law provisions.

G. Limitation of Claims.

No action, claim, proceeding or course of action, arising under, or in connection with this Agreement, regardless of the form, may be brought by Client more than sixty (60) days after Client becomes aware of or should reasonably have become aware of the occurrence of events giving rise to the cause of action.

H. Use of Agents.

CRA may designate any agent or subcontractor to perform such tasks and functions to complete any services covered under this Agreement. However, nothing in this clause shall relieve CRA from responsibility for performance of its duties under the terms of this Agreement.

I. Notices.

Notices to Client from CRA may be made by either e-mail, regular mail or by displaying notices or links to notices to Client on the web site. Notices from Client to CRA shall be made by certified mail, return receipt requested to the respective addresses of the parties as contained in this Agreement.

J. Waiver.

The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.

K. Headings.

The headings used in this Agreement are for reference only and do not define, limit or otherwise affect the meaning of any provisions hereof.

L. Severability.

If any part of this Agreement turns out to be invalid or unenforceable for some reason, then it will be replaced with a provision that, as closely as possible, achieves the same purpose as the original, and the remainder of the Agreement will still be binding. In the event that any provision hereof is held to be illegal, invalid or unenforceable by final un-appealable order, decree or judgment of any court, such provision shall be deemed to be separate from all of the other provisions hereof and the remaining provisions shall remain in full force and effect as if such illegal, invalid or unenforceable provision were not a part hereof.

M. Entire Agreement and Conflicts Clause.

This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes and overrides all prior agreements on the same subject matter, and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto. This Agreement shall not be modified except in writing signed by CRA and Client. In the event of a conflict between the terms of this Agreement and any additional terms, the terms of this Agreement shall control, unless an Addendum to this Agreement is executed simultaneously herewith or subsequently hereto, in which case the terms of such Addendum shall control.