This EMPLOYER PARTICIPATION AGREEMENT (“Agreement”) governs your relationship with Ezra AI, Inc. (“Ezra”) and the use of Ezra’s Electronic Health Record (“Ezra Hub”) services. By accepting this Agreement by executing a Employer Contract that references this Agreement (the “Employer Contract”), you (hereafter “Employer”, “You” or “Your”) agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
This Agreement is effective as of that date that you accept it. Employer and Ezra hereby agree as follows:
R E C I T A L S:
WHEREAS, Employer offers wellbeing medical benefits to employees; and
WHEREAS, Ezra has developed Ezra Hub Software (the “Hub”), an electronic health record application for coordinating, capturing, storing, sharing medical information and for scheduling, coordinating, storing and communicating medical appointment information; and
WHEREAS, Ezra, though its affiliate Ezra Health of California P.C. (“Ezra Health”), also offers follow-up consultations to individuals, based on full body magnetic resonance imaging scans performed by Employer (“Consultation Services”); and
WHEREAS, Employer desires to utilize the Hub to make medical information available to its employees and to allow Ezra Health to provide the Consultation Services to those employees in accordance with Ezra’s standard Terms of Use; and
WHEREAS, pursuant to this Agreement, Ezra will make the Hub available to Employer for an unlimited number of Employer's employees.
NOW THEREFORE, in consideration of the mutual promises and benefits made and contained herein, the receipt and sufficiency of which are hereby acknowledged, the Ezra and Employer hereby agree as follows:
1. Defined Terms.
2. The Hub.
2.1. Ezra’s Obligations. Ezra shall make the Hub available to Employer pursuant to this Agreement, and grants to Employer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow its Users to access and use the Hub in accordance with the Documentation, solely for Employer’s business purposes.
2.2. Employer's Obligations. Employer is responsible for all activities conducted under its and its Users’ logins on the Hub. Employer shall use the Hub in compliance with applicable law and shall not:(i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Hub, or any part thereof, or make it available to anyone other than its Users; (ii) send or store in the Hub any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store infringing or unlawful material in connection with the Hub; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the Hub; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Hub or the data contained therein; (vi) modify, copy or create derivative works based on the Hub, or any portion thereof; (vii) access the Hub for the purpose of building a competitive product or service or copying its features or user interface; or (viii) delete, alter, add to or fail to reproduce in and on the Hub the name of Ezra and any copyright or other notices appearing in or on the Hub or which may be required by Ezra at any time. Any use of the Hub in breach of this Agreement or Documentation, by Employer or Users that in Ezra’s judgment threatens the security, integrity or availability of the Hub, may result in Ezra’s immediate suspension of the Hub; however, Ezra will use commercially reasonable efforts under the circumstances to provide Employer with notice and an opportunity to remedy such violation or threat prior to such suspension.
2.3. Compliance with Laws. Employer shall comply with all applicable provisions of federal, state, and local laws, regulations and rules.
3. Security, and Support. Ezra shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Hub and the Employer Data; and (ii) protect the confidentiality of the Employer Data.
4. Confidentiality and Employee Consents.
4.1. Confidentiality. Each party (“Recipient”) may, during the course of its provision and use of the Hub, receive, have access to, and acquire knowledge from discussions with the other party (‘Discloser”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, vendors, penetration test results and other security information; defect and support information and metrics; and first and third-party audit reports and attestations (“Confidential Information”). Confidential Information shall not include, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (d) are or were disclosed by the Disclosure Generally without restriction on disclosure; (e) the Recipient Lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Recipient without access to or use of the Discloser’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession. The exclusions set out in the immediately prior sentence shall not apply with respect to any Employer Data, which shall always be and remain Employer's Confidential Information subject to the restrictions set forth herein. The Recipient shall not: (i) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser’s prior written permission, or (ii) disclose or make the Discloser’s Confidential Information available to any party, except those of its affiliates and its and their employees, contractors, and agents that have signed an agreement containing the disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
4.2. Records. Employer agrees to maintain complete and accurate records evidencing compliance with the obligations hereunder and during Employer's use of the Hub for such time as required by applicable law following termination of this Agreement. The Employer acknowledges and agrees that, consistent with the Business Associate Agreement, for purposes of quality control and internal auditing and operational management activities, Ezra shall have ongoing access to all of Employer's records, documentation, files, and inventory provided to Ezra as part of this Agreement.
5. Ownership, Feedback, and Aggregated Data.
5.1. Employer Data. You represent and warrant that you own all right, title and interest in and to all Employer Data, including, without limitation, all copyrights and rights of publicity contained therein. You hereby grant Ezra a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to copy, display, share, perform, distribute, store, modify and otherwise use all Employer Data, and any statistical and usage data relating to your use of the Hub derived by Ezra or its third-party service providers, in connection with (a) the operation and provision of the Hub, and (b) subject to the Privacy Policy, (i) the improvement or enhancement of the Hub, and the development and provision of new products, services and offerings, and for other development and corrective purposes in connection with the Hub and other Ezra offerings, products or services, (ii) to create aggregated or other de-identified data, and (iii) the marketing or promotion of any of the foregoing, in each case in any form, medium or technology now known or later developed, except to the extent that any use would be prohibited by HIPAA or other applicable law. You represent and warrant that any authorized use of the Employer Data by Ezra does and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, and intellectual property rights. Ezra and Ezra Health will use Employer Data solely to perform its obligations under this Agreement and the Business Associate Agreement. If the terms of this Agreement conflict with the terms of the Business Associate Agreement, the terms of the Business Associate Agreement shall control.
5.2. Ezra Ownership of the Hub. Except for the rights expressly granted under this Agreement, Ezra and its licensors retain all right, title, and interest in and to the Hub and the Documentation, including all related intellectual property rights inherent therein. No rights are granted to Employer hereunder other than as expressly set forth in this Agreement.
5.3. Feedback. Ezra shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hub any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Employer or its Users relating to the features, functionality or operation of the Hub (“Feedback”) without any compensation or attribution to Employer, any User or any third party. Ezra shall have no obligation to use Feedback, and Employer shall have no obligation to provide Feedback.
5.4. Statistical Usage Data. Ezra owns the statistical usage data derived from the operation of the Hub, including data regarding web applications utilized in connection with the Hub, configurations, log data, and the performance results for the Hub (“Usage Data”). Nothing herein shall be construed as prohibiting Ezra from utilizing the Usage Data to optimize and improve the Hub or otherwise operate Ezra’s business; provided that if Ezra provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Employer or any User(s)to any third party.
6. Warranties and Disclaimer.
6.1. Warranties by Ezra. Ezra warrants and represents that during the Term: (i) the Hub shall perform materially in accordance with the applicable Documentation, (ii) Ezra shall make commercially reasonable efforts to make the Hub available to Employer 24 hours-a-day, 7 days a week, every day of each year (except for any unavailability caused by a Force Majeure event); (iii) Ezra will employ then-current, industry-standard measures to test the Hub to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Hub, and (iv) it owns or otherwise has sufficient rights in the Hub to grant to Employer the rights to use the Hub granted herein.
6.2. Disclaimers. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 6.1, EZRA AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE HUB OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMP LIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 6.1. EZRA MAKES NO WARRANTY REGARDING ANY NON-EZRA APPLICATION WITH WHICH THE HUB MAY INTEROPERATE.
EXCEPT FOR THE CONSULTATION SERVICES, (I) EZRA DOES NOT PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT (COLLECTIVELY, “MEDICAL CARE”) TO EMPLOYER'S EMPLOYEES, AND EZRA DOES NOT EVALUATE THE NEED FOR EMPLOYER'S EMPLOYEES TO SEEK MEDICAL ATTENTION, THROUGH THE HUB OR OTHERWISE; (II) THE HUB AND ANY SERVICES OR REPORTS PROVIDED TO EMPLOYER'S EMPLOYEES THROUGH THE HUB ARE PROVIDED SOLELY AS A CONVENIENCE AND ARE NOT INTENDED AS A SUBSTITUTE FOR MEDICAL CARE; AND (III) AS BETWEEN EZRA AND EMPLOYER, EMPLOYER IS RESPONSIBLE FOR ALL MEDICAL CARE FOR ITS EMPLOYEES.
7. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S (OR EZRA’S THIRD-PARTY LICENSORS’) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS OF LIABILTY SET FORTH ABOVE WILL NOT APPLY TO (I) BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; (II) A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER; OR (III) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8. Indemnification.
8.1. Ezra Indemnification Obligation. Subject to Section 8.3, Ezra will defend Employer from any and all claims, demands, suits or proceedings brought against Employer by a third party alleging that the Hub, as provided by Ezra to Employer under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Ezra will indemnify Employer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Ezra, in connection with an Infringement Claim. In the event of any such Infringement Claim, Ezra may, at its option: (i) obtain the right to permit Employer to continue using the Hub, (ii) modify or replace the relevant portion(s) of the Hub with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement. Notwithstanding the foregoing, Ezra will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Hub made by a party other than Ezra, (2) the combination of the Hub with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Employer's use of the Hub other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 8.1 are Ezra’s sole and exclusive obligations, and Employer's sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
8.2. Employer Indemnification Obligation. Subject to Section 8.3, Employer will defend Ezra from any and all claims, demands, suits or proceedings brought against Ezra by a third party arising from or relating to (i) violation of a third party’s rights arising from Employer's provision of the Employer Data; (ii) breach by Employer of its representations or warranties hereunder; or (iii) Employer's gross negligence or willful misconduct. Employer will indemnify Ezra for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Employer.
8.3. Indemnity Requirements. The party seeking indemnity under this Section 8 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, provided that failure to provide such notice will not relieve the indemnifying party of its obligations unless it is materially prejudiced by such failure, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense and that Indemnitor will not agree to any settlement that involves an admission of liability on behalf of Indemnitee without Indemnitee’s prior written consent.
9. Term, Termination, and Effect of Termination.
9.1. Term. The term of this Agreement is set forth in the Employer Contract (the “Term”) and shall continue until terminated in accordance with Section 9.2 below.
9.2. Termination. Either party may terminate this Agreement (i) by written notice to the other party for any reason upon thirty (30) days’ notice; (ii) in the event that such other party materially breaches this Agreement and does not cure such breach within ten (10) days of such notice; or (ii) immediately in the event 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.
9.3. Effect of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Employer will immediately terminate and Employer will cease using the Hub and Ezra Confidential Information. The sections titled “Definitions,” “Confidentiality,” “Ownership; Aggregated Data,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive any termination or expiration of this Agreement.
10. General
10.1. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Employer or Ezra without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety, upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.2. Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in New York, New York. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.3. Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries) to the following addresses:
If to Employer:
As per your Employer Contract
If to Ezra:
Ezra AI, Inc.
419 Park Ave S., Suite 600
New York, NY 10016
Attention: As per Employer Contract
10.4. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer-related attacks, hacking, acts of terrorism, pandemic, or government order (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
10.5. Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
10.6. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.
10.7. Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Employer will not access or use the Hub in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
10.8. Anti-Corruption. Employer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Ezra employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Employer learns of any violation of the above restriction, Employer will use reasonable efforts to promptly notify Ezra.
10.9. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto, including any non-disclosure agreement(s), and related to the subject matter hereof are expressly cancelled. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, and (2) the Documentation. Ezra may modify this Agreement at any time by providing Employer with notice either via email (to the email address provided at registration) or upon Employer's next log-in to the Hub. Modifications shall become effective within thirty (30) days of notification; in the event that Employer does not agree to any modification, Employer shall have the right to terminate this Agreement by providing Ezra with written notice of termination within such thirty (30) day period. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. Notwithstanding the foregoing, Employer acknowledges and understands that additional terms and conditions regarding the grant of a license for use of the Hub may be necessary and Employer shall be required to agree with such terms and conditions prior to use of the Hub. By signing this Agreement, Employer certifies that Employer agrees to the terms of this Agreement, that Employer the legal authority to do so, and that Employer is contractually bound by the terms and conditions of this Agreement.
