FH® Explore Testing Agreement

FAIR Health, Inc. (“FAIR Health”) is a 501(c)(3) tax-exempt organization that maintains and produces certain data and products related to healthcare rates in furtherance of its mission to help enhance the transparency and neutrality of information about such rates. FH® Explore is a product currently in development by FAIR Health. To assist you in testing and evaluating FH® Explore and its utility for your work, at this time FAIR Health has agreed to temporarily license and distribute FH® Explore and certain products to you, solely for the purpose of evaluation of such products under the terms and conditions of this Agreement.

1.     We will make available to you a demonstration version of the FH Explore tool, associated data, and/or other information, products and services, made available on or through this website (collectively referred to as “Test Products”). This Agreement governs your use of the Test Products. By indicating your acceptance as provided below, and/or by using the Test Products, you agree to the terms and conditions of this Agreement. We reserve the right to update or make changes to this Agreement from time to time, in our sole discretion. We will provide these changes to you by any reasonable means, including without limitation, by posting a revised version on the website. Your continued use of the website or Test Products after such changes will indicate your acceptance of such changes.

2.      You agree to comply with all security controls, policies, standards, and guidelines which are disclosed to you. You agree you will not download or otherwise copy, extract, excerpt, paste, email or print any data or information from the Test Products. Without limiting the foregoing, you will not use any “Export” or “Download” functions. You agree you will not (i) knowingly introduce any virus, Trojan horse, worm, or other disabling, damaging or performance-impairing code through FH Online; (ii) allow third parties to have access to FH Explore; (iii) attempt to access any portions of FAIR Health’s systems or data products that are not duly licensed hereunder and needed in order for you to use your license hereunder; (iv) attempt to circumvent or bypass FAIR Health’s security procedures; or (v) exceed any limits on use of the Test Products set forth in this Agreement.

3.      Subject to the terms and conditions of this Agreement, we grant you the right to use the Test Products during the Term (as defined below) a single copy of the Test Products on a single server in the United States, solely for the purpose of internal testing of the Test Products to determine whether you want to license FAIR Health’s data products (“Purpose”). For clarity, you shall not use the Test Products for any of the following purposes: (a) to evaluate the structure or design of the Test Products, (b) to develop any products to compete with FAIR Health products, or (c) for any commercial use (including but not limited to using the Test Products to create data-derived fee schedules or to process, administer or adjudicate claims).

4.      FAIR Health waives the license fee for use of the Test Products in consideration for your providing your evaluation and suggestions with respect to the Test Products.

5.      You will not (a) copy or use the Test Products except as expressly permitted by this Agreement; (b) transfer, sell, rent, lease, disclose or sublicense the Test Products (or any portion thereof); (c) use the Test Products (or any portion thereof) for third-party training, commercial time-sharing or service bureau use; (d) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code for the Test Products or permit any third party to do any of the foregoing; (e) modify or create any derivative works based on the Test Products; (f) alter or remove any copyright, trademark or other protective notices contained in or on any portion of the Test Products; or (g) use the Test Products for any purpose other than as expressly permitted in this Agreement.

6.      The Test Products are licensed by FAIR Health to you, not sold. As between you and FAIR Health, all rights, title and interest in and to the Test Products, any derivative works of the Test Products, and any copies of the foregoing, including, without limitation, all intellectual property rights related thereto, will be owned by FAIR Health, subject only to the limited license granted in this Agreement. You do not acquire any other rights in any of the foregoing except as expressly set forth in this Agreement.

7.      THE TEST PRODUCTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. FAIR HEALTH DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TITLE, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. On the condition that you use the Test Products in accordance with the terms and conditions of this Agreement, FAIR Health represents and warrants that the Test Products (excluding any Licensed Codes, as defined below) do not infringe on a U.S. copyright, U.S. patent or U.S. trademark right of any third party).

8.      During the Term of this Agreement, you will have access to information that is confidential to FAIR Health. “Confidential Information” means the Test Products, data obtained from the Test Products, and other information relating to the Test Products, and all information clearly identified as confidential, whether or not such information is disclosed to you during or prior to the Term of this Agreement. You will hold all Confidential Information in strict confidence during and after the Term of this Agreement. You will not make Confidential Information available to any third party for any reason, and will treat Confidential Information with at least the same degree of care with which you would treat your own confidential information of a like nature, and in no case with less than a reasonable degree of care. You will limit the disclosure of Confidential Information to your employees who have a need to know such Confidential Information and who are subject to confidentiality restrictions at least as restrictive as this Section. You will not use the Confidential Information for any purpose other than for the exercise of your rights under this Agreement. You may use or disclose Confidential Information to the extent (i) approved in writing in advance by FAIR Health, or (ii) you are legally compelled to disclose such Confidential Information, provided, however, that prior to any such compelled disclosure, you shall (unless otherwise prohibited from doing so) give FAIR Health reasonable advance notice of any such disclosure and shall cooperate with us (at our sole cost and expenses) in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.

9.      Other than for breach of the license restrictions and confidentiality provisions of this Agreement, in no event will either party be liable for any indirect, incidental, special, consequential, punitive or similar damages arising out of this Agreement and incurred by either party or any third party, including, without limitation, any lost profits or lost data, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. FAIR Health’s liability for damages hereunder will in no event exceed five hundred U.S. dollars (US$500). The parties acknowledge that the limitations of liability in this Section and the allocation of risk herein are an essential element of the bargain between the parties, without which FAIR Health would not have entered into this Agreement.

10.    The Test Products contain Current Procedural Terminology Codes (“CPT”) owned and copyrighted by the American Medical Association (“AMA”) and licensed to FAIR Health, and/or Current Dental Terminology (“CDT”) codes owned and copyrighted by the American Dental Association (“ADA”), and/or ASA content (“ASA Content”) owned and copyrighted by the American Society of Anesthesiologists (“ASA”). CPT is a registered trademark of the AMA. The terms of this Section 10 apply to the Test Products that contains CPT and/or CDT and/or ASA Content. Collectively, the CPT codes, CDT codes and ASA Content are referred to as the “Licensed Codes”. You do not acquire any proprietary interest in the Licensed Codes. You acknowledge that all other rights in the Licensed Codes are owned and retained by AMA, ADA and ASA, respectively. All notices or proprietary rights, including trademark and copyright in the Licensed Codes must appear on all permitted back-up or archival copies. CROSSWALK®, Reverse CROSSWALK® and Relative Value Guide® are trademarks of ASA. The AMA and the ASA shall be third party beneficiaries of this Agreement for the purpose of enforcing at law and at equity all their rights under this Agreement against you, FAIR Health and any third party, as well as your covenants, warranty disclaimers and limitations of liability set forth in this Agreement, whether or not such provisions make specific reference to the AMA, ASA, CPT or ASA Content.

11.    You shall ensure that any person or entity that you authorize to obtain access to Licensed Codes shall comply with the provisions of this Agreement. You shall not use Licensed Codes or information contained therein in any public computer-based information system or public electronic bulletin board (including the Internet and World Wide Web). You shall not create any derivative works (including translations) based on Licensed Codes and are prohibited from transferring, selling, leasing, licensing (including sublicensing), or otherwise making the Licensed Codes available to any unauthorized party.

12.    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 MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT CPT WILL MEET YOUR REQUIREMENTS. THE AMA DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE OR INTERPRETATION OF INFORMATION CONTAINED OR NOT CONTAINED IN CPT. IF THE CPT DATA IS NOT INTACT, THE AMA’S SOLE RESPONSIBILITY IS TO MAKE REPLACEMENT COPIES AVAILABLE TO FAIR HEALTH. You (and not the AMA) bear all risk relating to quality, accuracy and performance of Licensed Codes.

13.    Licensee will not and will not permit anyone else to (a) copy the CDT; (b) alter, amend, change or modify the CDT, including the CDT codes, nomenclature and descriptors or other content of the CDT; (c) remove any copyright or other proprietary notices, labels or marks from the CDT or from output created by using the Data Products; (d) distribute, sell, assign, lease or otherwise transfer the CDT, including the Code or any portion thereof, in any printed, machine-readable or other form to any other person, firm or entity; or (e) use the CDT, whether on a time-sharing, remote job entry or other multiple user arrangement. Licensee shall take reasonable measures to maintain the security of the CDT. Licensee acknowledges and agrees that ADA owns all right, title and interest (including all copyrights and other intellectual property rights) in the CDT (in all print and machine readable forms), all other rights of commercialization, rental or sale of the CDT or any part thereof, the right to make derivatives of the CDT and the right to distribute the CDT and copies thereof. Licensee acquires no proprietary interest in the CDT, or any portion thereof. Except for the limited rights expressly granted to Licensee herein, all other rights in the CDT are owned and retained by ADA.

14.    Except as expressly stated herein, the Licensed Codes and documentation are provided ‘AS IS’, without warranty of any kind, express or implied, including, but not limited to, warranties of performance or merchantability or fitness for a particular purpose. You (and not the AMA, ADA or ASA) bear all risk relating to quality, accuracy and performance of Licensed Codes. You agree to indemnify ADA (including reasonable attorneys’ fees and costs of litigation) against and hold ADA harmless from any and all claims, liability, losses, damages and expenses resulting from your use of the CDT, in breach of the terms of this Agreement, or your use of data or documentation received from ADA, regardless of the form of action. ASA’s sole responsibility is to make available to FAIR Health replacement copies of the ASA Content if the ASA Content is not intact. ASA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in ASA Content.

15.    This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. You acknowledge that a violation of this Agreement may cause irreparable harm to FAIR Health for which monetary damages would be inadequate, and you therefore agree that, in addition to any other remedies provided by law, FAIR Health will be entitled to seek injunctive relief against any such violation. This Agreement will be governed by the laws of the State of New York, without reference to its conflicts of laws provisions. This Agreement and the rights and obligations hereunder may not be assigned or delegated by you without the prior written consent of FAIR Health and any purported assignment or delegation by you will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. In the event that any of the provisions of this Agreement will be held to be invalid or unenforceable, the remaining portions hereof will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.

16.    U.S. Government Rights.

a.      CPT Codes. This product includes CPT which is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. The AMA does not agree to license CPT to the Federal Government based on the license in FAR 52.227-14 (Data Rights - General) and DFARS 252.227-7015 (Technical Data - Commercial Items) or any other license provision. The AMA reserves all rights to approve any license with any Federal agency.

b.      Other Software and Data. The Test Products other than CPT Codes are “Commercial Items” as that term is defined in 48 C.F.R. 2.101, and include commercial technical data or computer licensed databases or commercial computer software or commercial computer software documentation, as applicable, which were developed exclusively at private expense by FAIR Health or its licensors. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer licensed databases and/or commercial computer software and/or commercial computer software documentation are subject to the limited rights restrictions of 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1 through 48 C.F.R. §227.7102-3, and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, this commercial product and data are licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to the terms and conditions of this Agreement. In case of conflict between any of the FAR and DFARS provisions listed herein and this Agreement, the construction that provides greater limitations on the Government’s rights shall control. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that this commercial product and data are a trade secret and proprietary commercial products and not subject to disclosure.

17.    This Agreement is effective upon your acceptance of the terms or your use of the Test Products (whichever is earlier), and will terminate 30 days later, unless earlier terminated in accordance with this Section 17 (the “Term”). At any time either party may by written notice to the other party immediately terminate this Agreement. Sections 5 through 16 of this Agreement will survive termination of this Agreement. You and your agents will cease using, and will delete (or at FAIR Health’s instruction, return to FAIR Health) the Test Products and all Confidential Information, and destroy any copies of Confidential Information within fifteen (15) days after termination of the Agreement.

You acknowledge that you have read this Agreement and that you understand and agree to be bound by its terms and conditions. If you accept the foregoing terms, click to agree below. If you do not accept these terms, you will not be authorized to access the Test Products.