NikoHealth Terms & Policies

These Main Services Terms plus any Supplemental Terms (together, the “Agreement”) govern your rights to use the NikoHealth Software as a Service solution (the “NikoHealth SaaS System”) and any related services identified in an Order (the “Related Services”).  The SaaS System and Related Services subscribed by you under an Order are referred to in this Agreement collectively as the “NikoHealth Solution.”  The terms “We” or “us” or “NikoHealth” refers to BBMK Technologies, Inc., d/b/a/ NikoHealth, and the terms “you” or “your” or “Client” refers to the Client who signed an Order and the Client’s Affiliates. NikoHealth and Client may be referred to herein individually as a “Party” and collectively as the “Parties.”

Please read this Agreement carefully as it governs your rights to use the NikoHealth Solution.  You may acquire rights to the NikoHealth Solution only via an Order, which is subject to acceptance by NikoHealth. Orders may be terminated according to their terms without termination of this Agreement. NikoHealth shall not be liable for any damages arising out of NikoHealth’s failure or delay in fulfilling any Order.

The terms of this Agreement and the Business Associate Agreement (the “BAA”) are incorporated by reference into the Order.  Your electronic execution and acceptance of the Order includes your agreement to and acceptance of this Agreement and BAA.  An electronic acceptance is legally binding in the same manner as a paper-based agreement. If you do not agree to the terms of this Agreement or BAA, do not enter into an Order or otherwise subscribe to, access or use the NikoHealth Solution.

You represent and warrant that (i) the individual signing the Order has full legal authority to bind Client to the each of Order, this Agreement and BAA, (ii) you have read and understand this Agreement and the BAA, and (iii) Client agrees to the terms of this Agreement and BAA. 

The specific services being provided to you — along with number of Seat Licenses, the cost of the Related Services and subscribing to the SaaS System, and the duration of such subscription — will be specified in an Order. We will begin providing the services described in the Order after you execute it.

This Agreement was last updated on “Updated Date” appearing in the margin of this document. It is effective between you and NikoHealth as of the Effective Date appearing on the Order signed by you (the “Effective Date”).

Capitalized terms used but not otherwise defined in this Agreement shall have the meaning set forth below:

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, SSO, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the NikoHealth Solution.

“Administrative Data” means the non-content aspects of the data and information related to Client’s use of the NikoHealth Solution, such as log-in times and log-in duration.  NikoHealth may aggregate and anonymize Administrative Data to compile statistical and performance information related to the provision and operation of the Services.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Authorized Users” means the employees, consultants, contractors, and agents of Client who are authorized by Client to access and use any part of the NikoHealth Solution under this Agreement.

“Beta Features” means services or functionality of any product offered NikoHealth that may be made available to Client to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Client Data” means information, data, and other content that is collected or received from Client or an Authorized User by or through the NikoHealth Solution. Client Data does not include Administrative Data.

“Client Personnel” means any person employed or contracted by Client to perform any service for Client.

“Documentation” means all manuals, instructions, or other documents or materials that NikoHealth makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the NikoHealth Solution.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“NikoHealth SaaS System” means NikoHealth’s proprietary, web-based, software as a solution patient management and billing workflow software and associated mobile applications.

“NikoHealth Solution” means both the NikoHealth SaaS System and the Related Services. 

“Order” is the record in any format describing the components of the NikoHealth Solution that Client is obtaining from NikoHealth, along with the responsibilities, tasks, timelines, special exclusivity,  implementation or integration services, if any, and the total fees and costs associated with such items and services.  If a Client Affiliate enters into an Order hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were the original party hereto

“Related Services” means the support and other services provided by NikoHealth to Client under an Order.

“Seat License” means the limited number of individual licenses to use the NikoHealth SaaS System granted to Client under an Order.  The maximum number of Seat Licenses which Client may have outstanding at any time during the Order term is set out in the Order.

Client acquires rights to the NikoHealth Solution only via a written Order signed by the Parties electronically or manually.  Orders may be terminated according to their terms without termination of this Main Services Agreement.

4.1. Rights to Use the NikoHealth SaaS System.  Subject to the provisions set forth in this Agreement and applicable Order, NikoHealth grants Client a non-exclusive, time-limited, non-assignable and limited quantity use right and license to access and use the NikoHealth SaaS System in the United States during the term of the Order (the “SaaS License”).  The SaaS License is made available via individual Seat Licenses associated with a Client Personnel member.  The number of Seat Licenses that Client assigns to Client Personnel during the Order Term shall not exceed the number of Seat Licenses set out in the applicable Order (the “Maximum”).  Client shall not permit access or use of the NikoHealth SaaS System in excess of the Maximum.

4.2. Subscriptions for the SaaS License.  The SaaS License is offered on a subscription basis during the time stated in the applicable Order (the “Subscription Term”).  Payment of the entire subscription fee is due regardless of the number of Seat Licenses in use during the applicable Subscription Term.  The number of Seat Licenses subscribed under an Order cannot be decreased during the relevant Subscription Term.  There is no refund or proration for any Seat Licenses not used during the Subscription Term. 

4.3. Additional Seat Licenses.  Individual Seat Licenses in excess of the Maximum may be added during a Subscription Term at the same pricing set out in the Order, prorated for the portion of that Subscription Term remaining at the time the additional Seat License is added. Such added Seat Licenses will terminate upon termination of the Subscription Term in which they were added. Client’s obligations to pay subscription fees are not contingent on the delivery of any future functionality or features.

4.4. Access Credentials. An Authorized User may access the NikoHealth SaaS System via the individual access credentials issued to the user.  Client shall be solely responsible for issuing Access Credentials to its Authorized Users and activating and de-activating such person’s access to the NikoHealth SaaS System upon termination of the Authorized User’s affiliation with Client or such user’s breach of this Agreement. Client shall securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the NikoHealth Solution.

NikoHealth will provide the Related Services either directly or through subcontractors to Client as specified in an Order or in a separate Related Service agreement between Client and NikoHealth.  Unless expressly stated otherwise in a separate Related Service Agreement, all Related Services shall be subject to the terms of this Agreement.

Unless expressly stated otherwise in an Order, Client will not: (i) make or permit another person or entity to make the NikoHealth Solution available to anyone other than Client or Authorized Users, or (ii) use the NikoHealth Solution for the benefit of anyone other than Client or its Affiliates, or (iii) sell, resell, license, sublicense, distribute, rent or lease the NikoHealth Solution.  Use of the NikoHealth Solution is restricted to Authorized Users in support of Client’s internal business operations.

7.1. NikoHealth Solution.  NikoHealth shall provide the NikoHealth Solution and associated use rights to Client during the Term as set forth in this Agreement and the Order.

7.2. Changes. NikoHealth reserves the right, in its sole discretion, to make any changes to the NikoHealth Solution and Documentation that it deems necessary or useful to maintain or enhance the quality or delivery of the Services to Client or to comply with applicable Law.  

7.3. Suspension or Termination of Services. Upon written notice to Client, NikoHealth may, directly or indirectly, suspend, terminate, or otherwise deny Client’s or an Authorized User’s access to or use of all or any part of the NikoHealth Solution, without incurring any resulting obligation or liability, if: (1) NikoHealth receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires NikoHealth to do so; (2) NikoHealth reasonably believes, in its discretion, that: (a) Client or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the NikoHealth Solution beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner inconsistent with the Documentation, or (b) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the NikoHealth Solution; (3) Client breaches its payment obligations hereunder, or (4) this Agreement or an applicable Order expires or is terminated. This Section 7.4 does not limit any of NikoHealth’s other rights or remedies, whether at law, in equity, or under this Agreement

7.4. Beta Features. If NikoHealth invites or agrees for Client to access or use any innovative but untested Beta Features, then Client agrees that: (i) such features have not been made commercially available by NikoHealth; (ii) such features may not operate properly, be in final form, or be fully functional; (iii) such features may contain errors, design flaws, or other problems; (iv) it may not be possible to make such features fully functional; use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (v) such features may change and may not become generally available; and (vi) NikoHealth is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service. All Beta Features are provided “AS IS, WHERE AS” with all faults. Client assumes all risk arising from use of such features, including, without limitation, the risk of damage to Client’s system or the corruption or loss of data.

8.1. Client Resources. Unless and to the extent expressly specified otherwise in the Order, Client agrees to obtain and/or provide sufficient technical and non-technical resources, at its own expense, to properly, timely and reliably access, use, implement, operate and support the NikoHealth Solution, including (without limitation) such hardware (e.g. computers, routers, etc.), software (e.g. operating, browser, etc.), and communication services (e.g. Internet access, etc.).

8.2. Client Responsibility.  Client be responsible for (i) its acts, and the acts and omissions of Authorized Users’ use of the NikoHealth Solution, (ii) ensuring the protection against unauthorized disclosure or use of Access Credentials, (iii) the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data, the Client’s use of Client Data with the Services, and the interoperation of any non-NikoHealth software or applications with which Client uses the Services.

9.1. Fees. Client shall pay NikoHealth the fees set forth in an Order in accordance with this Section 9 (the “Fees”).  The Fee for the SaaS License is based on subscriptions and not on actual usage.  Fees for Related Services are as set out in the Order.

9.2. Payment. Client shall pay all Fees and reimbursable expenses, if any, on or prior to the due date set forth in the Order or within thirty (30) days of invoice if a Related Service is separately billed by invoice. Client shall make all payments hereunder in US dollars by wire or ACH to the address or account specified in the Order or such other address or account as NikoHealth may specify in writing from time to time.  Except as otherwise expressly set forth in an Order, Client’s payment obligations are non-cancelable and non-refundable and all Fees shall be paid in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding.

9.3. Late Payment. If Client fails to make any payment when due then, in addition to all other remedies that may be available: (i) NikoHealth may charge interest on the past due amount at the rate of 1.5% per month or the highest rate permitted under applicable Law; (ii) Client shall reimburse NikoHealth for all costs incurred by NikoHealth in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for fifteen (15) days following written notice thereof, NikoHealth may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other person by reason of such suspension.

9.4. Fee  Increases. NikoHealth may increase the monthly subscription Fees no more than once annually after the first year of the applicable Subscription Term by providing written notice to Client at least thirty (30) calendar days prior.

9.5. Reimbursable Expenses. Client shall reimburse NikoHealth for out-of-pocket expenses incurred by NikoHealth in connection with performing the Services to the extent pre-approved by Client. Client shall pay such reimbursable expenses according to Client’s policies and procedures.

9.6. Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of applicable sales, use or excise taxes, which are the sole responsibility of Client.

10.1. Reservation of Intellectual Property Rights.  Subject to the limited rights expressly granted hereunder, NikoHealth, its Affiliates, and licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. Title to the NikoHealth Solution, the Documentation and all work product, deliverables, derivative works, and other works of authorship or inventions provided by NikoHealth or its representatives or based upon or utilizing any NikoHealth’s patents, trademarks, copyrights, trade secrets or other intellectual property rights of NikoHealth or its licensors, shall at all times be, remain and vest solely with NikoHealth or its licensors as applicable. No rights are granted to Client hereunder other than as expressly set forth herein.

10.2. Usage Restrictions. The use of any of NikoHealth’s intellectual property rights is authorized only for the purposes set forth in this Agreement. Client agrees that it will not, nor will it allow any Authorized User or third party to: (i) modify, alter, copy, or create any derivative works or aspect of the NikoHealth Solution except as expressly permitted in writing by NikoHealth; (ii) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from the NikoHealth Solution or any part thereof; (iii) continue to use the NikoHealth Solution beyond the expiration, cancellation, or termination of an applicable Subscription Term, Order or this Agreement; (iv) store or transmit in the NikoHealth Solution any infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (v) frame or mirror any part of any NikoHealth Solution or Client Data, other than framing on Client’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (vi) interfere with or disrupt the integrity or performance of the NikoHealth Solution or third-party data contained therein, (vii) attempt to gain unauthorized access to the NikoHealth Solution or its related systems or networks, (viii) permit direct or indirect access to or use of the NikoHealth Solution in a way that circumvents a the number of Seat Licenses or other contractual usage limit, or use the NikoHealth Solution to access, copy or use any of the NikoHealth intellectual property except as permitted under this Agreement, or (ix) upload or transmit through the NikoHealth Solution any worms, trapdoors, Trojan horses, or other malicious or harmful code. Access to or use of the Solution for any purpose other than expressly provided herein is strictly prohibited and is a material breach of this Agreement. NikoHealth reserves the right to monitor and review Client’s use of NikoHealth Solution and to verify and ensure compliance with the provisions of this Agreement.

10.3. Feedback. Client grants to NikoHealth and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Authorized Users relating to the operation of the NikoHealth Solution.

11.1. Ownership and Rights. Client retains ownership rights in the Client Data. Client grants NikoHealth the right to use, store and display Client Data (i) in connection with performance of NikoHealth’s duties under this Agreement and an Order; (ii) to create backup copies of data for recovery in case of catastrophic system failure or routine file repair; (iii) to troubleshoot the relevant system, isolate problems and resolve them within the system itself; (iv) to generate aggregate statistical and analytical reports; and (v) to de-identify those portions of data constituting Protected Health Information under HIPAA in the manner permitted under HIPAA’s de-identification standards, and to anonymize other aspects of such data, in each case for NikoHealth’s use to maintain and enhance the NikoHealth Solution, for artificial intelligence, machine learning or similar health informatics, data aggregation or data analytics purposes. Client grants NikoHealth a perpetual, royalty-free license and right to use any anonymized or de-identified Client Data for the purposes set out above. 

11.2. Responsibilities Regarding Client Data. Client shall be responsible for the accuracy and propriety nature of all data and content provided by Client to the NikoHealth Solution. NikoHealth has no obligation to review or approve Client Data prior to processing whether for billing workflow or otherwise. Client shall defend, indemnify and hold NikoHealth, its owners, employees, directors and contractors harmless against all losses, damages, penalties, expenses (including reasonable attorneys’ fees and investigation costs) arising out of NikoHealth’s processing of Client Data herein.

11.3. Privacy and Security. Each Party is responsible for complying with the privacy and data security laws applicable to its operations, including (without limitation) the Health Insurance Privacy and Accountability Act Privacy Rule and Security Rule (“HIPAA”) and the Health Information technology for Economic and Clinical Health Act (“HITECH”). The parties agree to be bound by the Business Associate Agreement (“BAA”) in the form available at link referenced above.

12.1. Each Party expressly undertakes to retain in confidence all Confidential Information and know-how transmitted to the other under this Agreement. “Confidential Information” means any proprietary technical or business information furnished by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, regardless of whether such information is specifically designated as confidential and regardless of whether such information is in written, oral, electronic, or other form. Such Confidential Information may include, without limitation, terms and conditions of this Agreement, trade secrets, know-how, inventions, the NikoHealth Solution, technical data or specifications, testing methods, business or financial information, research and development activities, product and marketing plans.

12.2. Neither Party may use or disclose the Confidential Information of the other Party without the prior written consent of the other Party, except (i) as required to perform their respective obligations herein, (ii) to the Receiving Party’s affiliates, attorneys, accountants, or agents (“Representatives”) who are under an obligation to keep the information confidential which is at least as restrictive as this Agreement, or (iii) as required by law, provided that the Receiving Party gives prompt written notice of such legal requirement to the Disclosing Party and reasonably cooperates with the Disclosing Party in limiting such disclosure to the minimum required. The provisions of this Section are in addition to, and not in lieu of, other agreements between NikoHealth and Client concerning the protection of proprietary or Confidential Information.  The Receiving Party shall be liable for the breach by its Representatives of the non-disclosure and non-use obligations herein. 

12.3. Exclusions. The term “Confidential Information” excludes information that the Receiving Party demonstrates (i) is already in the public domain or subsequently becomes available to the public through no fault of the Receiving Party; (ii) was lawfully in the Receiving Party’s possession prior to receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s information; or (iv) is received independently from a third party free to lawfully disclose such information.

12.4. Non-Solicitation. During the Term of this Agreement and for one (1) year after its termination, Client shall not, directly or indirectly, solicit or offer to hire, hire, or retain as an employee or contractor any person employed or retained during such period or within the preceding twelve (12) months by NikoHealth without NikoHealth’s prior written consent in each instance. This section does not prohibit Client from hiring any person who responds to a general advertisement or efforts by any recruiting or employment agencies not specifically directed at NikoHealth’s employees.

12.5. Remedies. Any violation or threatened violation of the provisions of this Section 12 may cause irreparable damage to the non-breaching Party such that, in addition all legal remedies, the non-breaching Party shall have the right to an injunction, specific performance, or other equitable relief without the requirement of posting a bond or undertaking or proving injury as a condition for relief.

13.1. Authority and Compliance with Law. Client, its affiliates and each of their employees, contractors and agents will comply in all material respects with all federal, state, and local laws, rules, regulations, orders, and ordinances applicable to it and its and their performance under this Agreement. Client is authorized by all corporate or other entity action required to execute and deliver this Agreement, Client’s execution and performance of this Agreement will not violate any term or condition of any agreement to which Client is a party.

13.2. Sanctioned Persons. Each Party represents and warrants to the other that neither it nor any of its respective employees, officers, directors, contractors, representatives and agents providing any services under this Agreement: (i) are “sanctioned persons” under any federal or state program or law; (ii) have been listed in the current Cumulative Sanction List of the Office of Inspector General for the United States Department of Health and Human Services for currently sanctioned or excluded individuals or entities; (iii) have been listed on the General Services Administration’s List of Parties Excluded from Federal Programs; (iv) have been listed on the United States Department of Treasury, Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List; (v) have been convicted of a criminal offense related to health care; and (vi) are debarred or suspended contractor under any law or rules of any state of the United States. Each Party shall immediately notify the other Party of any debarment or exclusion of any of its directors, officers, employees, agents or subcontractors. Any breach of this Section shall give the non-breaching Party the right to terminate the Agreement immediately for cause.

13.3. Limited Warranties and Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NIKOHEALTH, FOR ITSELF AND ITS SUPPLIERS, LICENSORS, AND THIRD-PARTY AFFILIATES: (I) PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED; (II) MAKES NO WARRANTIES THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, FREE FROM VIRUSES OR OTHER DISABLING CODE, OR ERROR-FREE; AND (III) SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Client shall, at its own expense, procure and maintain in full force and effect during the Term policies of insurance of the types and in the minimum amounts as follows, with responsible insurance carriers: commercial general liability with minimum coverage of not less than $1,000,000 per occurrence and $3,000,000 aggregate and network security and data privacy coverage with minimum coverage of $5,000,000.

15.1. NikoHealth Indemnification. NikoHealth shall defend, indemnify, and hold harmless Client, its Affiliates, and its and their employees, officers, directors, and agents (each, a “Client Indemnitee”) from and against any and all losses, damages, liabilities, penalties and costs (including reasonable attorney’s fees) (“Losses”) resulting from any third-party claim, demand, suit, or proceeding that use of the NikoHealth Solution in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from (i) Client’s use of any third-party materials or Client Data, (ii) Client’s modification of the NikoHealth Solution absent NikoHealth’s written approval, or (iii) Client’s failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Client by NikoHealth.

15.2. Client Indemnification. Client shall defend, indemnify, and hold harmless NikoHealth, its subsidiaries, affiliates, and joint ventures, and its and their employees, officers, directors, predecessors and successors in interest and agents (each, a “NikoHealth Indemnitee”) from and against any Losses resulting from any claim, demand, suit, or proceeding which involves or relates to Client’s breach of this Agreement or any negligence or willful misconduct by Client, its agents, employees or contractors.

15.3. Mitigation. In the event of an infringement claim, NikoHealth may, in its own discretion and at its sole cost and expense, either: (i) modify or replace the NikoHealth Solution or any part thereof so that it becomes non-infringing; (ii) obtain a license for Client’s continued use of the NikoHealth Solution in accordance with this Agreement; or (c) cease to provide the NikoHealth Solution and other related products or services by immediately terminating this Agreement and refund any unused prepaid fees to Client.

15.4. Indemnification Procedure.

1. The Party seeking indemnification (the “Notice Party”) will promptly notify the other Party (the “Receiving Party”) of any indemnity claim hereunder (“Claim”) of which the Notice Party becomes aware requiring indemnification; provided, however, that failure to provide such notice within a reasonable period of time shall not relieve the Receiving Party of its obligations, if any, hereunder except to the extent the Notice Party prejudiced by such failure.
2. With respect to any Claim: (A) the Receiving Party will defend or settle the Claim, subject to provisions of this subsection; (B) the Notice Party will, at the Receiving Party’s sole cost and expense, cooperate in the defense by providing access to witnesses and evidence available to it; (C) the Notice Party will have the right to participate in any defense at its own cost and expense to the extent that, in its sole judgment, the Notice Party believes it may otherwise be prejudiced; (D) the Receiving Party will not settle, offer to settle, or admit liability as to any Claim in which it controls the defense if such settlement, offer, or admission contains any admission of fault or guilt on the part of the Notice Party, or would impose any liability or other restriction or encumbrance on the Notice Party, without the written consent of an officer of the Notice Party.
3. Each Party will cooperate with, and comply with all reasonable requests of, each other Party as it relates to any Claim.

15.5. Sole Remedy. This Section 15 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any third-party claim described in this section.

NIKOHEALTH SHALL NOT BE LIABLE TO CLIENT FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR DAMAGE TO GOOD WILL ARISING OUT OF THIS AGREEMENT OR THE BREACH THEREOF, REGARDLESS OF WHETHER CLIENT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.

IN NO EVENT WILL THE AGGREGATE LIABILITY OF NIKOHEALTH AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO NIKOHEALTH UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

ANY CLAIM BY CLIENT AGAINST NIKOHEALTH MUST BE BROUGHT WITHIN SIX (6) MONTHS OF THE EVENT WHICH GAVE RISE TO THE CLAIM, AND IF IT IS NOT BROUGHT WITHIN SUCH TIME PERIOD THEN SUCH CLAIM IS EXPRESSLY WAIVED BY CLIENT.

Either Party may reproduce, display and use the other Party’s trademarks, trade names, service marks, logos or other marks or symbols (collectively, “Marks”) for the purposes of: (i) performing its obligations under this Agreement, and (ii) identifying the other Party as a customer or vendor.  Each Party shall follow the other Party’s instructions, if any, regarding the form and manner of the Marks to be used.  All goodwill associated with the use of Marks shall inure to the benefit of the owner of such Marks.

18.1. Term of Agreement.  This Agreement commences on the Effective Date and, unless earlier terminated under the terms hereof, shall continue until all Orders issued under this Agreement have expired or have been terminated.

18.2. Term of Subscriptions. The term of the Order shall be the same duration as the Subscription Term, which shall be specified in the applicable Order. Except as otherwise specified in an Order, upon expiration of the initial Subscription Term, the Order and SaaS License subscription will automatically renew for additional terms of one (1) year each (a “Renewal Term”), unless either Party gives the other written notice at least 30 days before the end of the relevant Subscription Term.

18.3. Termination of an Order.  A Party may terminate an Order “for cause” upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, except that the cure period for breach for non-payment shall be ten (10) days. The Fees in a Renewal Term any be different than the Fees charged in the prior Term.

18.4. Termination. A Party may terminate this Agreement:

1. “for cause” upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, except that the cure period for breach for non-payment shall be ten (10) days; or
2. immediately upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
3. immediately upon written notice if a tribunal has found that a Party has failed to materially comply with any federal, state and local law or regulation governing such Party’s obligations hereunder, or
4. at any time by mutual consent of the parties; provided such consent to terminate is in writing and is signed by each Party.

18.5. Special Payment upon Termination For Cause. If Client terminates this Agreement “for cause,” then NikoHealth will refund Client any prepaid fees covering the remainder of the term of all of Client’s Orders after the effective date of termination. Otherwise, NikoHealth does not provide refunds, even if Client decides to stop using the Services or does not use any or all of the Services made available to Client.

19.1. Termination or Expiration of Order. Upon the effective date of any termination or expiration of an Order:

1. The entire balance of all monies owed by Client to NikoHealth under the terminating Order shall be immediately due and payable;
2. All use rights and licenses granted to Client under this Agreement for use in the applicable Order shall immediately terminate;
3. Client shall return all NikoHealth Documentation prepared specifically for the Services under the terminating Order.

19.2. Termination or Expiration of this Agreement. Upon the effective date of any termination or expiration of this Agreement:

1. The entire balance of all monies owed by Client to NikoHealth under this Agreement and all outstanding Orders shall be immediately due and payable;
2. All use rights and licenses granted to Client under this Agreement and any Order shall immediately terminate, and Client shall cease accessing and/or using the NikoHealth Solution, NikoHealth Confidential Information and NikoHealth Marks;
3. Client shall return all NikoHealth Documentation to NikoHealth;
4. NikoHealth shall cease its use of the Client Marks; and
5. The Receiving Party shall, at the Disclosing Party’s request, return to the Disclosing Party or destroy all of the Disclosing Party’s Confidential Information that it possesses; provided that the Receiving Party may retain copies of Confidential Information as required by law or that are created pursuant to its standard electronic backup and archival procedures and stored until the ordinary-course deletion thereof; provided further that all such retained Confidential Information shall remain subject to the confidentiality and restricted-use obligations hereunder.

20.1. Return of Data. Client acknowledges that (i) it has access to Client Data in and through the NikoHealth Solution during the Term of an Order or this Agreement as applicable, and (ii) that NikoHealth will delete or destroy all non-anonymized or de-identified Client Data in its possession within sixty (60) days of termination of the applicable Order or this Agreement (“Data Retention Period”).

20.2. Data Export.  If Client desires to obtain any Client Data held by NikoHealth as of the date of termination, then Client is responsible, at its cost, to export all Client Data from NikoHealth prior to the actual termination date.  Following termination, NikoHealth will retain Client Data only through the Data Retention Period. 

20.3. Destruction of Client Data. After the end of Data Retention Period, NikoHealth will delete or destroy Client Data according to applicable Law.

20.4. Client’s Records Retention Obligations. Client is solely responsible for complying with all records retention requirements under state law and HIPAA.

20.5. Retained Information.  Notwithstanding anything to the contrary herein, if NikoHealth has stored Client Data on its automated backup systems consistent with its standard data backup and deletion policies, or if applicable law requires NikoHealth to retain such data, then NikoHealth may retain such copies on the condition that such retained copies remain subject to the confidentiality terms under this Agreement.

21.1. Further Assurances. At a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

21.2. Entire Agreement. This Agreement, together with the Supplemental Terms, any Order, Appendices, or other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

21.3. Resolution of Conflicting Terms. If an inconsistency exists between a provision of these Main Services Terms, the NikoHealth Documentation, or an Order, the terms of the Order control first, followed by the terms in these Main Services Term, and then in the NikoHealth Documentation. The Parties intend that the limitations of liability appearing in these Main Services Terms shall apply to a Party’s liability under any Business Associate Agreement executed among the Parties.

21.4. Amendment.  Except as provided in Section 21.6 below, this Agreement shall not be amended other than in a writing executed by a duly authorized representative of each Party.

21.5. No Medical Services. The Services do not constitute and is not a substitute for the provision of any professional medical service.

21.6. Changes to This Agreement. Notwithstanding anything to the contrary herein, other than the terms of an Order or the terms of the Business Associate Agreement, these Main Services Terms and Documentation (collectively, the “Arrangements”) are subject to change by NikoHealth on a going-forward basis in its sole discretion at any time. When changes are made, NikoHealth will make a new copy of the modified document available on the NikoHealth SaaS System or on our Website and will also update the “Last Updated” date appearing on the applicable document.  Any changes to the Arrangements will be effective immediately for Clients executing an Order after the date of such change and will be effective for continuing Clients thirty (30) days after posting notice of such changes on the NikoHealth SaaS System or our Website for existing Clients. Unless otherwise stated, your continued use of the NikoHealth Solution constitutes your acceptance of such change(s). If you do not agree to any change(s) following our posting such change(s), then, notwithstanding anything to the contrary herein, your sole recourse is to terminate the Agreement effective as of the end of the then current Initial Term or Renewal Term, by providing NikoHealth written notice of termination no later than sixty (60) days following the end of the current Term. You should regularly check the NikoHealth SaaS System and our Website to view the then-current Arrangements. 

21.7. Survival. In addition to those provisions whose terms expressly provide for survival following termination or expiration of this Agreement, the sections titled “Client Obligations,” “Client Data,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality and Non-Solicitation,” “Limited Warranties and Disclaimers,” “Indemnification,” “Limitation of Liability,” “Survival” and “General Provisions” will survive any termination or expiration of this Agreement, shall continue to bind the parties and their legal representatives, successors, transferees and assignees.

21.8. Governing Law. This Agreement shall be governed in accordance with the laws of the State of Delaware without regard to any conflict of law provisions. Any claim brought under this Agreement shall be in a state or federal court located in Monmouth County, New Jersey, and each Party submits to this exclusive jurisdiction. Any claims must be brought in an individual capacity, and not as a plaintiff, class member, or private attorney general. The Party prevailing in any proceeding or action hereunder shall be entitled to all costs and reasonable attorneys’ fees incurred in connection with such proceeding. EACH PARTY WAIVES A TRIAL BY JURY AS TO ANY MATTER ARISING UNDER THIS AGREEMENT.

21.9. Notices. Any notice, demand, or request required or permitted to be given hereunder shall be in writing (which may be a PDF attached to an email) and shall be deemed effective when delivered by (i) facsimile, (ii) email, (iii) five (5) business days after having been deposited with the United States mail, postage prepaid, registered or certified, or (iv) the next business day upon delivery to UPS, Federal Express or similar carrier for overnight delivery, with all charges for such delivery prepaid; and addressed to the receiving Party at the address provided by such Party as part of the contracting process. A copy of each notice shall also be sent via email.

21.10. No Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full rights of such Party to require performance later, nor shall the waiver by either Party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.

21.11. Force Majeure. Except with regard to any previously accrued but unpaid amounts due to NikoHealth, neither Party shall be liable to the other for failure to perform any of its obligations hereunder during a period of fire, flood, or other natural disaster, war, terrorism, embargo, riot, epidemic, pandemic, Act of God, or intervention of a government authority or, in the case of NikoHealth, delay or disruption with the telecommunications, Internet, wireless or network equipment provider or any third-Party vendor of Client or the Authorized Users (“Force Majeure Event”) which prevents such performance. The Party delayed by the Force Majeure Event shall promptly notify the other Party of the delay. During the pendency of any Force Majeure Event, the Party affected will work diligently to cure the Force Majeure Event to the extent commercially reasonable. However, if the Force Majeure Event continues for thirty (30) consecutive days, the Party not directly affected by it may terminate this Agreement immediately without penalty

21.12. Severability. If any portion or portions of this Agreement are held by a court of competent jurisdiction to be unenforceable, invalid or contrary to public policy under any applicable statute or rule of law, it is, to that extent, omitted, but the remainder of this Agreement shall continue to be binding upon the parties hereto.

21.13. Assignment. The parties agree that their respective rights and obligations under this Agreement may not be assigned or otherwise transferred without the prior written consent of the non-transferring Party; provided, however, that NikoHealth may assign this Agreement and associated Orders without prior consent with respect to assignments to persons or entities acquiring all or substantially all of the NikoHealth’s assets or equity, whether by merger or otherwise.

21.14. Independent Contractors. Each Party shall perform its obligations hereunder as an independent contractor and shall be solely responsible for its own financial obligations (including any costs or expenses incurred by such Party in performing its obligations under this Agreement). Nothing contained herein shall be construed to imply a joint venture or principal and agent relationship between the parties. Client acknowledges that NikoHealth provides similar services to others and agrees that all services, intellectual property, licenses, and rights provided by NikoHealth are non-exclusive.

21.15. Books and Records Access. To the extent this Agreement is subject to Section 1861(v)(1)(I) of the Social Security Act, NikoHealth agrees to make available upon written request of the Secretary of Health and Human Services or the United States Comptroller General or any of their duly authorized representatives, this Agreement and any other books, documents, or records of NikoHealth that are necessary to certify the nature and extent of costs incurred by NikoHealth under this Agreement until the expiration of four (4) years after the expiration or termination of this Agreement for any reason. NikoHealth agrees that if NikoHealth carries out any of the services under this Agreement through a contract or subcontract with a value of $10,000 or more over a twelve (12) month period, such contract or subcontract shall require this same access to the books, documents, and records of such contractor or subcontractor.

21.16. Interpretation. Section headings are for convenience of reference only and shall not affect the meaning of any provision.

21.17. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

21.18. Electronic Signature. NikoHealth and Client indicate their intent to be bound by the terms of this Agreement by use of their electronic signature or other electronic indication to be bound. The electronic indication of intent to be bound may appear on this document, on an Order or on another portion of NikoHealth’s website that references the Party’s acceptance of and agreement to this Agreement. Such electronic indication of intent to be bound and shall have the same force and effect as manual signatures.

A. The U.S. Department of Health and Human Services (“HHS”) has promulgated privacy and security requirements reflecting the  Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Public Law 104- 191; and the American Recovery and Reinvestment Act of 2009 (the “ARR Act”), including, without limitation, the requirements of the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), which is part thereof, enacted and established additional provisions for written business associate agreements and required these additional provisions be incorporated into all business associate agreements.

B. The HIPAA Rules provide that a Covered Entity is permitted to disclose Protected Health Information (“PHI,” as defined below) to a Business Associate only if the Covered Entity has first obtained “satisfactory assurances,” in the form of a written contract requiring that the business associate will appropriately safeguard such PHI.

C. Business Associate will be providing services to the Covered Entity as described in the Order (the “Services”) and, in the course of providing the Services to the Covered Entity, Business Associate may receive, create, use, and/or disclose PHI on Covered Entity’s behalf which would create a business associate relationship between the Parties, thus necessitating a written contract that meets the applicable requirements of the HIPAA Rules.

To comply with the HIPAA Rules, Covered Entity and Business Associate agree as follows:

Terms used, but not otherwise defined, in this BAA shall have the same meaning as set forth in the Privacy Rule, the Security Rule (as both are defined below) and/or the security and privacy provisions of the ARR Act and the HITECH Act that are applicable to business associates along with any regulations issued by HHS with respect to the ARR Act and the HITECH Act that relate to the obligations of agents and subcontractors of business associates.

1. Electronic Protected Health Information or ePHI shall have the meaning given such term in 45 C.F.R. § 160.103, but limited to the information received from or created on behalf of Covered Entity by Business Associate to perform the Services.
2. HIPAA Rules means the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.
3. Individual shall have the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
4. Privacy Rule means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
5. Protected Health Information or PHI shall have the meaning given such term in 45 C.F.R. § 160.103, but limited to the information received from or created on behalf of Covered Entity by Business Associate to perform the Services.
6. Security Rule means the Standards for Security of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and C.
7. Services means the activities of Business Associate performed on behalf of Covered Entity under the Order.

Business Associate may use and disclose PHI only as follows:

2.1. Business Associate may use or disclose PHI in order to perform its  obligations under the Order relating to providing the Services.

2.2. Business Associate may use or disclose PHI as Required By Law.

2.3. Business Associate may use PHI for the proper management and administration
of the Business Associate or to carry out the legal responsibilities of Business
Associate.

2.4. Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that:

• the disclosures are Required by Law, or
• Business Associate obtains reasonable assurances from the entity to which the information is disclosed that it will be held confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the entity, and the entity notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

2.5. Business Associate may use PHI to provide data aggregation services to Covered Entity.

2.6. Business Associate may use PHI to create de-identified information as defined by 45 C.F.R. §164.514(b). Business Associate may use such de-identified data solely for enhancement of the Services.

2.7. Business Associate may use PHI to create a limited data set as defined by 45 C.F.R. §164.514(e)(2) and use and disclose such limited data set  pursuant to 45 C.F.R. §164.514(e)(1).

2.8. Business Associate may disclose PHI at the direction of Covered Entity to any other vendors of Covered Entity that provide other services for or on behalf of Covered Entity. Covered Entity hereby agrees that it shall not request or permit Business Associate to use or disclose Protected Health  Information in any manner that would not be  permissible under HIPAA if done by Covered Entity.

2.9. Business Associate agrees to use reasonable efforts to limit PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request pursuant to 45 C.F.R. § 164.502(b).

Business Associate agrees:

3.1. not to use or disclose PHI other than as permitted or required by this BAA or as Required By Law.

3.2. use commercially reasonable and appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by this BAA.

3.3. in accordance with 45 C.F.R. § 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information.

3.4. report, within ten (10) days of becoming aware, to Covered Entity any use or disclosure of the PHI not provided for by this BAA, any Breaches of Unsecured PHI as required at 45 C.F.R. 164.410, and any successful Security Incident of which it becomes aware. Successful Security Incidents shall not include pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, Use or Disclosure of PHI.

3.5. mitigate, to the extent practicable, any harmful effect that is, or becomes, known of a use or disclosure of PHI by the Business Associate or any of its members, agents, contractors or subcontractors in violation of the requirements of this BAA, the Privacy Rule, ARR Act or HITECH Act.

3.6. implement and use appropriate policies and procedures for the identification and notification of Breach.

3.7. make available PHI in a Designated Record Set to the individual or the individual’s designee as necessary to satisfy Covered Entity’s obligation under 45 C.F.R. § 164.524. Business Associate will, at the request of the Individual or Covered Entity, provide a copy of PHI directly to the Individual or the individual’s designee.

3.8. make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 C.F.R. § 164.526 or take other measures as necessary to satisfy Covered Entity’s obligations under C.F.R. § 164.526.

3.9. maintain and make available the information required to provide an accounting of disclosures to the Individual as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528.

3.10. comply with the requirements of Subpart E of 45 C.F.R. Part 164 to the extent Business Associate is to carry out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164.

3.11. make its internal practices, books, and records, including policies and procedures, relating to the use and disclosure of PHI available to the Secretary, in a time and manner reasonably designated by the Secretary, for purposes of having the Secretary determine Covered Entity’s compliance with the Privacy Rule. Nothing in this BAA shall operate to waive any attorney-client or other privilege held by Business Associate.

4.1. To Inform of Privacy Practices and Restrictions:

1. Covered Entity shall notify Business Associate in writing of any limitation(s) in the Notice of Privacy Practices of Covered Entity under 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
2. Covered Entity shall notify Business Associate in writing of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
3. Covered Entity shall notify Business Associate in writing of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s use or disclose of PHI.

4.2. Representations by Covered Entity. Covered Entity represents that it has the right and authority to disclose PHI to Business Associate to enable  Business Associate to perform its obligations and provide services to Covered Entity. Except as otherwise permitted in this BAA, Covered Entity shall not request that or permit Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity. Covered Entity will neither request nor require Business Associate to deliver any PHI to Covered Entity or a third party in violation of this BAA.

5.1. Term. This BAA shall take effect on the Effective Date and shall terminate when the Order terminates.

5.2. Termination for Cause. Both Parties agree that this BAA may be terminated by either Party upon breach of a material term of the BAA. The non-breaching Party shall:(1)provide the breaching Party the opportunity to cure the breach or end the violation within fifteen (15) days; and(2) if cure of such breach is not possible or if the breaching Party does not cure the breach or end the violation within fifteen (15) days, terminate the BAA.

5.3. Effect of Termination. Upon termination of this BAA for any reason, Business Associate shall:

1. Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
2. Destroy the remaining PHI that Business Associate still maintains in any form;
3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this section, for as long as Business Associate retains the PHI;
4. Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at section 2(c) and 2(d) which applied prior to termination; and
5. Destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

5.4. Survival. The obligations of Business Associate under this section 5 shall survive the termination of this BAA.

6.1. Regulatory References. Any reference in this BAA to a section of the HIPAA Rules means the section as in effect or as amended.

6.2. Amendment. The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.

6.3. Interpretation. Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.

6.4. No Third-Party Beneficiaries. Nothing expressed or implied in this BAA is intended to confer, nor shall anything in the BAA be deemed to confer, upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

6.5. Governing Law. This BAA shall be governed by and construed in accordance with the laws of that govern the Order.

The NikoHealth Main Services Agreement (“MSA”) and these NikoHealth Supplemental Terms (“Supplemental Terms”) are legally binding and govern your acquisition and use of NikoHealth. These Supplemental Terms apply in addition to the MSA and form an integral part of the MSA (together, the MSA and Supplemental Terms are the “NikoHealth Terms”).

CLIENT AGREES TO THE FOLLOWING WITH RESPECT TO ANY USE OF THE OUTBOUND CAMPAIGN FEATURE. Client represents and warrants to NikoHealth that, prior to Client’s sending any texts or emails to any individual through the Outbound Campaign Feature (a “Recipient”), Client has secured the Recipient’s express prior written consent, together with all opt-in, permissions, and authorizations required by law. Client further represents and warrants that it complies, and will comply during the term of the Main Services Agreement, with all provisions of the Telephone Consumer Protection Act, the Privacy and Security Regulations under HIPPA, similar applicable state laws, and all other applicable laws with respect to any message sent to a Recipient through the functionality and services provided through the Outbound Campaign Service. Client will fully indemnify, defend, and hold NikoHealth harmless against any and all judgments, damages, penalties, fines and all other losses of any kind arising from or in any way related to Client’s use of the Outbound Campaign feature and related service in any manner inconsistent with applicable laws, the Order or Main Services Agreement.