Subscription Agreement

Ruby Red Subscription General Terms and Conditions

Last Updated: February 22, 2017

THE TERMS AND CONDITIONS OF YOUR USE OF SOFTWARE OR SERVICES (COLLECTIVELY “SERVICES”) AND ANY ORDERS ENTERED INTO BY YOU AND RUBY RED LLC (“RUBY”) ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT.”  THIS AGREEMENT AND THE TERMS HEREIN GOVERN YOUR USE OF RUBY’S SOFTWARE AND SERVICES. 

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. Please also review our Privacy Policy, which explains how RUBY handles your personal data when you use our Services. By USING any of OUR Services, YOU AGREE TO THESE TERMS and our Privacy Policy.

IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN EMPLOYEE OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO SUBSCRIBE TO THE SERVICES AND TO AGREE TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL ALSO APPLY TO YOU.   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 SERVICES.

You must be at least 18 years of age to USE OUR SERVICES. If you are not at least 18 years old or you do not agree to each of these Terms of Service, you are prohibited from and must not access or use any of our Services.

THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DAY THAT YOU USE OUR SERVICES, CHECK THE “ACCEPT” BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ONLINE OR WRITTEN ORDER FORM ISSUED TO YOU BY RUBY.  Ruby reserves the right to update and change the Terms of this agreement from time to time without notice. Continued use of the ServiceS after any such changes shall constitute your consent to such changes.

Definitions

“Affiliate(s)” means any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group that directly or indirectly, through one of more intermediaries, controls, is controlled by, or is under common control with such party.

“Documentation” means the instructions, manuals or other materials regarding the use of the Services that RUBY makes generally available to its Services users.

“Health Information” means Protected Health Information that You or Your Authorized Workforce input or upload onto the Services, or that we receive on your behalf from your patients, authorized service providers, or our third party partners pursuant to this Agreement.

“Intellectual Property Rights” means rights in unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights in the broadest meaning of the term, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“License” means the limited grant by RUBY to use the Service in accordance with this Agreement.

“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E, as amended.

“Protected Health Information” has the meaning given it in the Privacy Rule.

“Service(s)” means any of the following: (i) the products and services ordered as referenced in an Order Form; (ii) any products, services, or software made available to you either online or through the App Store; (iii) any associated offline components and customer support provided with the Services.

“RUBY Technology” means all of RUBY’s proprietary technology (including the Services and all proprietary software, hardware, products, processes, algorithms, user interfaces, reports, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by RUBY in connection with this Agreement.

“User” means an individual who is authorized by You to use the Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password.  Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business (“Authorized Workforce”).

“User of Record” means the account owner identified in an Order.  The User of Record shall be subject to this Agreement and all of the provisions that are applicable to the person addressed as “You” or “Your” in this Agreement.

“You,” “Your” means a subscriber or User of Services.

“Your Data” means any documents, files, information or data stored or processed by or for You to the Services or collected and processed by or for You using the Services, excluding RUBY Technology.  Your Data includes Protected Health Information.

  1. Grant of License; Restrictions

2.1.        Upon acceptance of this Agreement and payment pursuant to an Order Form, RUBY grants to You a non-exclusive, personal, non-transferable limited right to access and use the Services, and a non-exclusive, personal, non-transferable, limited License to use any computer software, application or data furnished by us for access to or use of or in connection with the Services during the Term, subject to Your full compliance with the terms and conditions set forth in this Agreement and an Order Form.  All rights not expressly granted herein are reserved by RUBY.

2.2.        You will not allow any License to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Services.   Each User must have a single, unique login credential. Multiple Users are not permitted to use one login credential or the login credentials of another User without express written consent of RUBY.

2.3.        With respect to the Services, You shall not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make it available to any third party in any way (except that You may allow Your contractors to access the Services in order to perform their obligations towards You); (ii) transmit or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or upload, post, or transmit any unlawful, harassing, libelous, or abusive material on the Service; (iii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) reverse engineer, decompile, or disassemble the Services or any RUBY Technology or otherwise attempt to discover the source code to the software used by the Services.

2.4. You may allow Your Authorized Workforce to access the Service in compliance with the terms of this Agreement.  You are responsible for the compliance with this Agreement by Your Authorized Workforce. All persons who sign up for an account on behalf of the User of Record must furnish, among other things, that User of Record’s full legal name and fictitious business name as part of the sign-up process. A User of Record’s Authorized Workforce may sign up for an account and use the Services, but only the User of Record is entitled to any of the rights, remedies or benefits under this Agreement and control over the administrative rights. The User of Record is subject to, and Ruby may enforce against it, all of the terms of this Agreement including for any actions arising out of use of the Services by the User of Record’s Authorized Workforce. The User of Record may delegate administrative rights to one or more members of its Authorized Workforce, but the User of Record remains responsible for all activity occurring thereunder.

2.5. RUBY reserves the right to refuse, modify, or suspend Service to anyone for any reason at any time.

  1. Indemnification

3.1.        You shall defend, indemnify, and hold harmless RUBY and its affiliates, and their officers, shareholders, employees, agents, successors and assigns (each a “RUBY Indemnified Party”) from and against any and all damages, losses, costs and expenses (including any reasonable attorney’s fees and expenses) in connection with any claim, suit, action, or proceeding (“Claims”) brought against a RUBY Indemnified Party to the extent arising out of: (a) Your use of the Services, (b) any gross negligent act or willful misconduct by Users and Your Authorized Workforce, or (c) an allegation that the Your Data or any other content, data or information supplied by You, or the use thereof infringes the Intellectual Property Rights of a third party.

  1. Your Data

4.1.        You acknowledge that to use the Services, You will be required to provide Your Data for which the Services are to be provided.  RUBY acknowledges that Your Data shall be Your Confidential Information and that RUBY does not own Your Data, information or material that You may submit to RUBY or that RUBY may store in the course of You using the Services. RUBY may store and process Your Data through a third party hosting service in the United States as long as RUBY and the third party execute an agreement that protects Your Confidential Information to the same extent as this Agreement.

4.2. You acknowledge that federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Data may properly be disclosed to Ruby for use of the Services.  You will not make available to other users through the Services any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users or under law).  You will obtain all necessary consents, authorizations or releases from individuals required for making their health information available through the Services and You shall include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Services.

4.3.        RUBY will not sell, rent or lease any personally identifiable information included therein to third parties, without receiving Your prior explicit consent, except in any of the following instances:

  1. To operate the Services, including storing and processing Your Data through third party hosting services;
  2. If RUBY is required by applicable law, rules or regulations to do so but only to the extent required by law upon notice to You;
  3. If RUBY is acquired by, or merged with another entity, provided however, that those entities agree to be bound by the provisions of this Agreement.

4.4.        You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” to RUBY. You must not transmit or upload any worms or viruses or any code of a destructive nature.

  1. IP Ownership and Confidentiality

5.1.        RUBY alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights in and to the Services and the RUBY Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Services. RUBY’s name, RUBY’s logo, and the product names associated with the Services are trademarks of RUBY or third parties, and no right or license is granted to use them.

5.2.        RUBY and You shall preserve as confidential and not disclose to any party (other than employees with a ‘need to know’ or independent contractors bound by a written agreement of confidentiality no less restrictive than this Section), or use for any reason other than performance under the Agreement, all information and trade secrets related to the business of the other party that is indicated as confidential or which a party should reasonably know to be confidential given the nature of the information and/or the circumstances of its disclosure (“Confidential Information”).  You acknowledge that any RUBY pricing, source code and Documentation are Confidential Information of RUBY.  The confidentiality obligations of this Section shall not apply to: (i) information that is publicly known prior to the disclosure or becomes publicly known through no wrongful act of the receiving party; (ii) information that was in lawful possession of the receiving party prior to the disclosure without any agreement of confidentiality restricting its use or disclosure, and was not received as a result of any breach of confidentiality with respect to the other party (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) becomes known by the receiving party from a third party and, to the receiving party’s knowledge, is not subject to an obligation of confidentiality to the disclosing party.   RUBY and You acknowledge that monetary remedies may be inadequate to protect their rights with respect to a breach of this Section and agree that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights, and each party hereby waives its right to assert that monetary remedies are adequate.

5.3.        RUBY and You agree that RUBY has the right to express publicly their relationship with You, including the Services involved.  This includes the right to republish logos, company names, and software names.

5.4.        You grant RUBY a worldwide, royalty-free right to access, use, copy, store, transmit, host, reproduce, display, perform, adapt, modify, reformat, publish or distribute the content and Your Data for the purpose of providing the Services hereunder.

5.5.        RUBY does not pre-screen Your Data, but ruby and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any of Your Data that is available via the Service.

  1. Privacy & Security

6.1.        RUBY and third parties on its behalf shall implement reasonable security tools and procedures to secure Your Data. These tools include protection such as encryption for communication and user authentication to prevent unauthorized user access or other malicious activities. While such tools and procedures reduce the risk of security breaches, RUBY cannot guarantee that the Services will be immune from any unlawful interceptions or unauthorized access.

6.2.        You will implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Services and use of the Services. Such safeguards shall comply with federal, state, and local requirements, including the Privacy Rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your Authorized Workforce to transmit, store and process electronic health information through the use of the Services.

6.3.        You will adopt and maintain reasonable and appropriate security precautions to prevent access or use by unauthorized persons. Each member of your Authorized Workforce shall have and use a unique identifier and login credential. You will ensure that no member of your Authorized Workforce uses credentials assigned to another Authorized Workforce member.

6.4.        Except as required by law, you will not permit any third party (other than persons who constitute Authorized Workforce) to use or access the Services without RUBY’S prior written agreement. Nor will you authorize or assist any person or entity in accessing, or attempting to access, any portion of the Services via any means other than a commercial browser (such as Internet Explorer, Mozilla Firefox or Chrome) or a mobile app provided to you through the App Store.

6.5.        You will promptly notify us of any order or demand for compulsory disclosure of health information if the disclosure requires access to or use of the Services. You will cooperate fully with us in connection with any such demand. You will also notify us in the event that any person or entity, whether or not a member of your Authorized Workforce, (a) attempts to access the Services by any means other than a commercial browser, (b) claims to offer a service or system that “integrates with” our Services or (c) requests to use your credentials or requests that you obtain credentials in order to access the Services in a manner that would violate this Agreement.

6.6.        You may use Your Data and the Services in order to prepare reports or for other internal business purposes.  Such reports and the like will be created in a manner that does not make any disclosure of Health Information that you would not be permitted to make.

6.7.        RUBY may utilize, transfer, or disclose aggregated information, including summary statistics, that has been de-identified in accordance with HIPAA at 45 CFR §164.514 such that it does not identify an individual and cannot be used to identify an individual for any purpose.

  1. Charges and Payment of Fees

7.1.        In consideration for the Services to be provided by RUBY, You agree to pay the amount as indicated on the Order Form by valid credit card.  For any fees not paid within thirty (30) days of its due date, You shall be liable for late charges at the rate equal to the lesser of 1.5% per month, or the highest rate allowed by law, calculated from the due date until the amounts are paid, together with all costs and expenses incurred in collection, including reasonable attorneys’ fees.  All charges committed by You in a signed Order Form will be fixed for the terms specified in such Order Form and thereafter may be increased by RUBY beginning with each annual Term upon posting of the price increase by RUBY either electronically to You or on RUBY’S website.  RUBY’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on RUBY’s net income.  There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.  No exceptions will be made.

  1. Term and Termination

8.1         Unless terminated earlier pursuant to this Section 8 of this Agreement, the initial term (“Initial Term”) of this Agreement shall be for a period of twelve (12) months from the Effective Date and shall thereafter automatically continue and payment shall be due under this Agreement for subsequent twelve (12) month terms (“Subsequent Terms”) unless either Party provides notice of termination thirty (30) days prior to the expiration of any Term.  The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”  However, this Agreement will continue in full force if any Order Form is in effect.

8.1         This Agreement or any Order Form can be terminated by either party upon written notice if the other party breaches any material term or condition of the Agreement or Order Form and such breach remains uncorrected for thirty (30) calendar days following written notice from the non-breaching party specifying the breach.  Termination of this Agreement or a Order Form shall be without prejudice to the survival of provisions in this Agreement which by their nature survive termination.

8.2         Upon request of the other party, each party will return to the other Confidential Information and other proprietary materials and data which have been delivered by the other party, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party or will provide a letter signed by an authorized representative of the receiving party that such Confidential Information and data have been destroyed.  You shall have thirty (30) days from the termination of the Agreement to request a copy of Your Data from RUBY, and if requested, RUBY shall use commercially reasonable efforts to provide a copy of Your Data within thirty (30) days pursuant to Section 17.  After such thirty (30) day period, RUBY shall have no obligation to maintain or provide any Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in its systems or otherwise in its possession or under its control.

  1. Service Performance, Suspension and Support

RUBY will, as part of the Services, and at no additional cost to You, provide You with RUBY’s standard support services as provided for in an Order Form.

You agree that RUBY may suspend access to the Services for any breach of this Agreement, failure to pay fees, or in the event we determine in RUBY’S sole discretion that access to or use of the Services by You or your Authorized Workforce may jeopardize the Services or the confidentiality, privacy, security, integrity or availability of information within the Services.  RUBY may terminate the access of any member of your Authorized Workforce upon termination or change in status of his or her employment with you. Our election to suspend the Services shall not waive or affect our rights to terminate this Agreement as permitted under this Agreement.

  1. Warranties and Disclaimer of Warranties

RUBY REPRESENTS AND WARRANTS THAT:  (A) IT WILL PERFORM ALL SERVICES EXERCISING DUE CARE AND IN A GOOD, WORKMANLIKE AND PROFESSIONAL MANNER, (B) IT WILL EMPLOY COMMERCIALLY REASONABLE MEASURES TO SCREEN THE SERVICES FOR VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS AND OTHER SOFTWARE ROUTINES OR CODE DESIGNED TO PERMIT UNAUTHORIZED ACCESS TO, DISRUPT, DISABLE, ERASE, OR OTHERWISE HARM YOUR SOFTWARE, HARDWARE OR DATA, AND (C) IT HAS THE FULL AND UNRESTRICTED RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT AND TO PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT.  EXCEPT AS OTHER STATED IN THIS SECTION, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE DISCLAIMED AND DO NOT APPLY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  RUBY (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR THE RUBY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (B) THE SERVICES AND THE RUBY TOOLS AND/OR THEIR QUALITY WILL MEET YOUR REQUIREMENTS OR EXPECTATION OR (C) the results that may be obtained from the use of the service will be accurate or reliable or (d) any errors in the Service will be corrected.

  1. Limitation of Liability

11.1.      General

IN NO EVENT WILL RUBY AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, RESELLERS, SUCCESSORS OR ASSIGNEES BE LIABLE FOR LOST REVENUE, PROFITS, BUSINESS OR DATA, OR FOR ANY COSTS OF COVER, INDIRECT, INCIDENTAL, CONSEQUENTIAL PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, EVEN IF RUBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY CASE, REGARDLESS OF THE THEORY OF LIABILITY ALLEGED OR THE ALLEGED DAMAGES, RUBY’S AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, RESELLERS, SUCCESSORS AND ASSIGNEES TOTAL AGGREGATE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CLAIM FIRST AROSE.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.

11.2.      Data Loss

RUBY IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES OR EQUIPMENT BY PERSONS USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE.

  1. Your Responsibilities

12.1. You shall provide RUBY with all necessary cooperation in relation to any Order Form and all necessary access to such information as may be required by RUBY to provide the Services.  You shall comply with all applicable laws and regulations with respect to its activities under this Agreement and any Order Form and shall carry out their responsibilities set out in the Order Forms in a timely and efficient manner.  You shall ensure that the Users use the Services in accordance with the terms and conditions of this Agreement and shall ensure that its network and systems comply with the relevant specifications provided by RUBY from time to time.

12.2.  You shall: (i) notify RUBY immediately of any unauthorized use of any password or account or any other known or suspected breach of security or loss of data; (ii) suspend all user accounts for individuals who are no longer authorized to access those accounts, and (iii) comply with any instructions concerning access to and/or use of the Services that RUBY may give from time to time.

12.3. You warrant that Your Data and other material provided under Your account or Your behalf, is true, correct and accurate. If You learn that any data or content provided by You as part of the Service is not true, correct or accurate, You must immediately notify RUBY by phone and in writing of this fact, and provide the true, correct and accurate information to RUBY.

12.4. You are responsible for understanding and complying with all state and federal laws related to retention of medical records, patient access to information and patient authorization to release data. You agree to obtain any necessary patient consent prior to using the Service and will apply settings to exclude information from availability as necessary to comply with state or federal law.

12.5.  You agree that RUBY does not provide medical advice, provide medical or diagnostic services, or prescribe medication. You agree that You are solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable patients’ medical and medication history and allergies) and obtaining patient’s consent to use the Service.  You assume all risks associated with clinical use of the Service for the treatment of patients.

  1. No Assignment.

This Agreement may not be assigned or otherwise transferred by You via sale, merger, change in control, by operation or law or otherwise, without RUBY’s prior written consent and any such purported assignment or transfer shall be void.

  1. Governing Law; Dispute Resolution

This Agreement, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service, shall be exclusively governed by the laws of the State of Connecticut, without regard to the choice or conflicts of law provisions.  Except for the right of either party to apply to a court of competent jurisdiction for an injunction or other equitable relief or for the collection of an account stated, any controversy, claim or dispute related to this Agreement will be settled by binding arbitration before a single arbitrator, who is an attorney with experience in the software industry.  The arbitration will be conducted under the then current Commercial Arbitration Rules of the American Arbitration Association.  The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in any court having jurisdiction thereof.  The arbitration will be held in Hartford, Connecticut.  The arbitrator will enforce the terms of the Agreement and will have no authority to award punitive damages, non-compensatory damages or any damages other than direct damages, or to award direct damages in excess of the limitations and exclusions set forth in this Agreement.  In the event that You initiate an arbitration for alleged breach of this Agreement, and You do not prevail in the arbitration, You agree that RUBY shall be paid its reasonable attorneys’ fees and costs. The existence of the arbitration, the arbitration proceedings and the outcome of such arbitration will be treated as Confidential Information under this Agreement and will not be disclosed by either party.

  1. No Waiver; Severability.

The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.  If any one or more of the provisions in this Agreement are determined invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement; provided, however, if a court finds any provision of this Agreement may be rewritten to be valid, legal and enforceable, the parties agree that such court shall rewrite the provision.

  1. Force Majeure

Neither party will be responsible to the other for any delay, failure in performance, loss or damage, unless through the exercise of reasonable diligence, the non-performing party was able to prevent interference with and/or interruption of its performance of this Agreement, due to fire, explosion, power blackout, earthquake, volcanic action, cable cuts by third parties, flood, severe weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond their reasonable control, except that You must pay for any Services used.  Any such delay or failure shall suspend the Agreement until the force majeure event ceases, provided that such party gives the other party prompt written notice of the failure to perform, the reason for the failure to perform, its expected duration, and its anticipated effect on the ability to perform the obligations, and uses its reasonable efforts to limit the resulting delay in its performance.  However, if such condition persists for a period of greater than thirty (30) days, the other party may, at its option, terminate this Agreement without penalty.

  1. HIPPA – Business Associates Terms

Ruby agrees in accordance with the requirements of HIPAA, as such requirements are informed by the guidance given by the United Stated Department of Health and Human Services (or any office, department or agency operating thereunder, “HHS”):

17.1  Not to use or disclose such Health Information except as permitted or required by this Agreement or as required by law (as such term is defined in 45 CFR §164.103);

17.2.  To use appropriate safeguards with respect to Your Health Information to prevent the use or disclosure of such information in a manner inconsistent with the provisions of this Agreement;

17.3.  To report to you any use or disclosure of Your Health Information not provided for by this Agreement of which we become aware, including breaches of Your Health Information that meets the definition of “unsecured protected health information” under HIPAA, in each case as required by §164.410 of HIPAA, and any security incident (as defined by HIPAA) involving Your Health Information of which we become aware;

17.4.  In accordance with §§164.502(e)(1)(ii) and 164.308(b)(2) of HIPAA, as applicable, ensure that any subcontractors that create, receive, maintain or transmit Your Health Information on our behalf agree to the same restrictions, conditions, and requirements that apply to us with respect to such information (as such requirement is interpreted or applicable in connection with or under HIPAA); and we obtain satisfactory assurances (as such term is interpreted or applicable in connection with or under HIPAA) that such subcontractors will appropriately safeguard such information (it being understood, for the avoidance of doubt, that other users of the Services are not our subcontractors);

17.5.  To make available to you Your Health Information in furtherance of your obligations to amend and incorporate any amendments to such information in accordance with §164.526 of the Privacy Rule;

17.6.  At termination of this Agreement, in accordance with the terms herein, to provide the User of Record with a copy of Your Health Information in an electronic form that is accessible through commercially available hardware and software. You may have to purchase such hardware and software from third parties in order to access your Health Information, and you may have to configure your systems in order to use your data in your practice. Upon termination we will, if feasible, return or destroy all Protected Health Information received from, or created or received by us on your behalf that we still maintain in any form, and retain no copies of such information; or, if such return or destruction is not feasible (whether for technical, legal, regulatory or operational reasons), extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible.

  1. Entire Agreement.

This Agreement, together with any applicable Order Form, comprises the entire Agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All terms and provisions of this Agreement which should by their nature survive the termination of this Agreement shall so survive, including without limitation those terms regarding payment of fees, ownership and confidentiality, disclaimer of warranties and limitations of liability.

Notwithstanding the foregoing, RUBY may modify these terms by posting modified Terms of Service on the RUBY website.  by continuing to use the Service after posting of the modified Terms of Service, You agree to the changes and modified Terms of Service.

  1. Miscellaneous.

No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service.  Section headings contained in this Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement.

For purposes of messages and notices about the Service (including without limitation, collections and payments issues), You agree that RUBY may send email notices to the email address associated with Your account or provide in service notifications.

Any and all notices to Ruby under this Agreement shall be sent by United States mail or fax transmission to the address provided below or to such other and different addresses as RUBY may designate in writing.

To RUBY:

RUBY RED LLC
Attention: Legal Department
41 Schoolhouse Landing

East Granby, Connecticut 06026

legal@rubyelectronicdocs.com