API TERMS OF SERVICE AGREEMENT

 

This Netsmart API Terms of Service Agreement (the "Agreement") is by and between Netsmart Technologies, Inc. ("Netsmart") and you (or the company, organization or other legal entity that you represent) ("Developer", or "you", or "your"). You may execute Statements of Work with Netsmart for additional licenses and services relating to the Netsmart APIs, which will be subject to the terms and conditions of this Agreement. 

1.    API Key Definitions

a.     API Documentation means the documentation, test data and information that Netsmart provides regarding the use of the Netsmart API through the Developer Site.

b.    Client means an end user of a Developer Application that (1) has duly licensed the Netsmart Software from Netsmart; and (2) has an active support contract for such Netsmart Software with Netsmart. Developer may be a Client.

c.     Developer Application means any software application created using, or with reference to, the Netsmart API, which software program interoperates or exchanges or shares data (bi-directionally or uni-directionally) with any Netsmart Software.

d.    Developer Site means a list of Netsmart supported FHIR Resources and can be found at https://careconnect.netsmartcloud.com/.

e.     Netsmart API means the publicly available Netsmart application programming interface ("API") as well as the related API Documentation made available by Netsmart to Developer. These Netsmart APIs are specifically FHIR R4 APIs as defined by HL7 industry standards and endorsed by ONC USCDI. Netsmart API access is determined by your specific uses.

f.     Netsmart Content means, collectively, the Netsmart API, Netsmart Data, Netsmart Software, the API Documentation and any and all other information provided by or created by Netsmart.

g.    Netsmart Data means any Netsmart or Netsmart client information exchanged through the use of the Netsmart API.

h.    Netsmart Software means Netsmart software with which a Developer Application interoperates, including all versions thereof and updates and enhancements thereto.

i.     Resource is an entity that has a known identity (a URL) by which it can be addressed, identifies itself as one of the types of resources defined by HL7, and contains a set of structured data items.

2.    Licenses and Restrictions

a.    API License. Subject to Developer's compliance with this Agreement, Netsmart grants Developer a limited, non-exclusive, non-transferable, revocable, and non-sublicensable license during the Term to use the Netsmart API as necessary to (1) develop, test, and support any software application, website, or product,  (2) interoperate with, enable and achieve the access, exchange, or use of electronic health information between your Developed Application and applicable Netsmart Software, and (3) provide access to and any necessary support of your Developed Application to Netsmart clients. 

b.     Restrictions. The Netsmart API’s are proprietary to Netsmart and may contain trade secrets. Developer shall not: (1) modify, reverse engineer, decompile, or otherwise alter the Netsmart API, or otherwise attempt to discover the underlying ideas, algorithms, structure or organizational form of the Netsmart API; (2) use, copy, modify, create derivative works of, display, or distribute any portion of the Netsmart API for any purpose; (3) remove, alter, add, or obscure any intellectual property or other proprietary notice or other notice included in the Netsmart API; (4) distribute, publish, facilitate, enable, or allow access or linking to the Netsmart Content from any location or source other than the Developer Application; (5) use any portion of the Netsmart API to provide, or to assist in or further the provision of, any data processing, outsourcing, time sharing, or service bureau services, or any other services for the benefit of any third party; or (6) transmit any illegal content, viruses or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data.

c.     Modifications. Developer acknowledges and agrees that: (i) Netsmart may modify, change, update, or enhance the Netsmart API, permitted Netsmart API calls, any Netsmart Content, or the permitted use ("Modifications") at any time, with or without notice, in Netsmart's sole discretion, and (ii) Modifications may not permit the operation of, or otherwise be compatible with, any Developer Application created hereunder. Without limitation, Netsmart will not be liable for any costs, claims, or liabilities incurred by Developer, or for lost profits or damages of any kind, related to any Modifications.

3.      Developed Applications

a. Responsibilities. You accept full responsibility and liability for your Developed Application. Without limiting the foregoing, you are solely responsible for applicable demonstration, pricing, sales support (including product analyst support), licensing, configuration, installation, implementation, use, maintenance and technical support of your Developed Application. You are solely responsible and liable for all representations, warranties, support and other obligations made by you to any third party related to your Developed Application, including claims arising from product liability, breach of warranty, use or misuse of data, and intellectual property infringement.

b. Acknowledgements. If you wish to implement your Developed Application in a Netsmart client environment, you hereby acknowledge:

1)      It is your sole responsibility to license your Developed Application to the applicable Netsmart client or patient. If you have developed a patient-facing app, it is your sole responsibility to provide terms of service and privacy policy to users.

2)      It is your sole responsibility to implement your Developed Application for the Netsmart client or a patient.

3)      Connection services may be needed in order for your Developed Application to operate within a Netsmart client environment. The scope of such services, and any associated fees, would be set forth in a separate written agreement between Netsmart and the applicable parties.

4)      Client is responsible for all decisions, acts, and omissions of any persons in connection with the delivery of medical care or other services to any patients. Netsmart has not tested or determined that the Developer Application will interoperate with any particular release of the Netsmart Software or with Client's computing environment and infrastructure. Before any Developer Application is placed into a live production environment, Client has full responsibility to review and test the Developer Application (in conjunction with the Netsmart Software and all other associated materials, workflows, and other content), as implemented, make independent decisions about system settings and configuration based upon Client's needs, practices, standards and environment, and reach its own independent determination that the Developer Application is appropriate for such live production use. Any such use by Client (or its authorized users) will constitute Client's representation that it has complied with the foregoing.

c. Monitoring. Netsmart may monitor and audit your use of the Netsmart APIs and other activities related to your obligations under this Agreement. Netsmart may, in its sole and reasonable discretion, suspend, throttle or otherwise limit your Developed Application activity if Netsmart reasonably believes (i) your Developed Application poses a threat to the operation, stability or security of Netsmart’s or its client’s systems, infrastructure or services, (ii) your Developed Application may be compromised, contain viruses, material bugs or other errors or (iii) your Developed Application exceeds system limitations managed by Netsmart’s provider.

4.    Warranties, Disclaimers; Limitations of Liability and Indemnity

a.      Compliance. You are solely responsible for your use of the Netsmart APIs and agree to comply with all responsibilities and obligations as stated in this Agreement. You warrant that at all times you will comply with all applicable laws, rules and regulations relating to the use of the Netsmart APIs, the and the development, distribution, commercialization, license and use of your Developed Application. Client is responsible for managing and capturing any applicable patient level consents.

b.      Virus Warranty. You warrant that your Developed Application will not contain or transmit any viruses or other malicious computer instructions, devices, or techniques that can or were designed to threaten, infect, damage, disable, or shut down the Netsmart APIs, the Netsmart Software, or any other technology, equipment or computer system.

c.       Security. You warrant that you have implemented reasonable security measures, systems, and procedures to (i) ensure the confidentiality, integrity, and availability of all electronic health information your Developed Application creates, receives, maintains or transmits, (ii) identify and protect against reasonably anticipated threats or hazards to the security or integrity of your Developed Application or the electronic health information, and (iii) protect against reasonably anticipated, impermissible uses or disclosures of the electronic health information.

d.      Functionality. You warrant that: (a) you will use best efforts to ensure that your Developed Application does not regularly crash or produce unexpected errors; (b) information displayed by your Developed Application does not modify or conflict with information displayed in the Netsmart client’s electronic medical record (EMR); (c) your Developed Application does not include undocumented or hidden features inconsistent with the description of the Developed Application; (d) your Developed Application consumes FHIR Resources relevant to the documented workflow, filters data effectively, and properly handles changes to the underlying dataset; and (e) your Developed Application properly handles EMR-specific events, such as patient context changes and user context changes.

e.      Content. You warrant that your Developed Application will only include content that you developed or that you have a license or written consent to use in connection with your Developed Application. You further warrant that the Developed Application, any content or other materials used within the Developed Application, and the use of the same by Netsmart clients or patients will not constitute an infringement, misappropriation or other violation of any patent, trademark, copyright, trade secret or other intellectual property right of a third party.

f.      Disclaimers THE NETSMART API AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NETSMART EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

g.     Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NETSMART BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, FIVE HUNDRED ($500) U.S. DOLLARS. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

h.     Indemnity You agree to defend, indemnify and hold harmless Netsmart, and its subsidiaries, affiliates, officers, agents, employees, and suppliers, from all third party claims, losses, damages, suits, judgments, litigation costs, expenses (including attorneys' fees, and costs) arising from or in any way related to; (1) the Developer Application; (2) a breach of this Agreement; (3) any damage caused to any IT environment by Developer or any Developer Applications, or (4) Developer's violation of any law, rule, regulation or the rights of a third party. In such a case, we will provide you with written notice of such claim, suit, or action.

5.    Protected Health Information; Confidentiality

a.     Protected Health Information. Developer shall not submit or make available to Netsmart any Protected Health Information (as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”)). You acknowledge and agree that, as it relates to access and services under this Agreement, you are not a supplier to or downstream business associate (as defined under HIPAA) of Netsmart.

b.     Confidentiality Obligations. Developer will: (a) protect Netsmart's Confidential Information (including the Netsmart API) from unauthorized dissemination with the same degree of care that it uses to protect its own like information (but at least reasonable care); (b) use Netsmart's Confidential Information only to access the Netsmart API and otherwise to perform its obligations under this Agreement; and (c) not disclose Netsmart's Confidential Information to any third party without Netsmart's prior written permission in each case. Confidential Information may, however, be disclosed as required by government or judicial order if Developer gives reasonable notice to allow Netsmart a reasonable opportunity to seek a protective order or if notice is not permitted, obtains written assurance that confidential treatment will be given to the Confidential Information disclosed. "Confidential Information" means nonpublic information that Netsmart designates as confidential, or that, under the circumstances of disclosure, should be treated as confidential. Netsmart Content is considered Confidential Information. Confidential Information does not include any information that Developer developed independently; or that is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation owed to Netsmart.

c.     Remedies. It is specifically agreed that the breach of this Agreement concerning Netsmart Confidential Information may result in irreparable injury and Netsmart will be entitled to seek specific performance and injunctive relief to correct and enjoin such breach in addition to all other remedies which might be available.

6. Ownership; Publicity. Netsmart is the sole owner of all right, title, and interest, including all intellectual property rights, in and to, the Netsmart API, Netsmart Content, and all elements and components thereof, and the Netsmart Confidential Information (collectively, the "Netsmart Materials"). Except for the express licenses granted in this Agreement, Netsmart does not grant you any right, title, or interest in the Netsmart Materials. Nothing in this Agreement grants Developer any rights to use any trademarks or logos of Netsmart. All rights not expressly granted in this Agreement are expressly reserved by Netsmart and its suppliers. Developer hereby agrees that Netsmart shall have, and Developer hereby grants to Netsmart, a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable and perpetual license to incorporate into the Netsmart API and Netsmart Content or otherwise use any suggestions, enhancement requests, recommendations or other feedback Netsmart receives from Developer. You will not make any press release or other public statement relating to this Agreement or the use of Netsmart APIs without Netsmart’s written permission.

7.    Term and Termination. The term of this Agreement will begin on the date upon which you agree to the terms, by accessing or using the Netsmart API, and will continue until terminated as set forth herein ("Term"). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Developer violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination or expiration of this Agreement for any reason, Developer shall cease using (and cause Clients to cease use), and either return to Netsmart, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Developer's possession, and shall certify to Netsmart that such actions have occurred. Sections 2-8 shall survive any termination of this Agreement.

8.    General

a.     Data Collection. Developer acknowledges and agrees that Netsmart may collect and use, for any lawful purpose, data arising from Developer's use of the Netsmart API, including usage statistics, unique identifiers, associated IP addresses, version numbers of relevant software, and information on which tools and services in the Netsmart API are being used and how they are being used.

b.    Precedence. If you have an agreement with Netsmart for the provision of services or use of APIs, the terms of this Agreement will control to the extent of any direct conflict or inconsistency.

c.     Venue; Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas, without regard to its conflict of law rules. Use of the Netsmart APIs is not authorized in any jurisdiction that does not give effect to all the provisions of this Agreement. Any legal proceeding arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the state or federal courts sitting in Johnson County, Kansas. Developer consents to such courts and waives all defenses of lack of personal jurisdiction, improper venue, and forum non-conveniens relating to this Agreement; provided Netsmart may seek injunctive or provisional relief in other courts with respect to protection of its intellectual property rights.

d.    Miscellaneous. Any cause of action or claim you may have with respect to Netsmart must be commenced within one (1) year after the claim or cause of action arises. Netsmart’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. You may not assign or otherwise transfer this Agreement, or any of your rights or duties hereunder, without the prior written consent of Netsmart. Netsmart may assign its rights and duties under this Agreement to any party at any time without notice to you. Any attempt to assign this Agreement in violation of this section is null and void.

e.     Entire Agreement. Each party acknowledges that this Agreement and any Statement of Work constitute the complete and exclusive statement of the terms and conditions between the parties, which supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. This Agreement may be modified (including, without limitation, the inclusion of new terms, updates or revisions to existing terms, or removal of existing terms) at any time in Netsmart’s sole discretion. You are responsible for regularly reviewing and becoming familiar with any modification to this Agreement.

f.     Independent Contractors. The parties are independent contractors. There shall be no employer-employee relationship between Netsmart and Developer, and between Developer and Netsmart. Nothing contained in this Agreement shall be construed to constitute the parties to be partners or joint-venturers with or agents for one another. Neither party shall have the authority to, nor shall either, obligated or bind the other in any manner whatsoever.

g.    Severability. If any provision of this Agreement is found to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable to the maximum extent possible in order to effect the intention of the provision; if a term cannot be so modified, it will be severed, and the remaining provisions of this Agreement will not be affected in any way.

h.    No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties. Except as expressly provided in this Agreement, in no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.

i.     Notice and Service of Process. All notices to be provided by Netsmart to Developer under this Agreement may be delivered (i) in writing by US mail to the contact mailing address provided by Developer to Netsmart; or (ii) by electronic mail to the electronic mail address provided by Developer to Netsmart. Developer must give notice to Netsmart at the following address: 11100 Nall Avenue, Overland Park, KS 66211 and email: Contracts_notice@ntst.com. Any notices that you provide without compliance with this section shall have no legal effect.