FH Orders

AGREEMENT FOR A SOLO OR SMALL MEDICAL PRACTICE

This Agreement between you and FAIR Health, Inc. ("FAIR Health") governs your use of the Data Products that you order on this site, and all data contained therein (collectively, the “Data Products”). This Agreement is for one solo or small medical practice (fewer than 5 licensed medical professionals) only. By entering this Agreement, you represent and warrant that you are (a) a licensed medical professional in a solo or small medical practice, or (b) an employee of a solo or small medical practice.

1. PURPOSE

FAIR Health is licensing Data Products to you to assist you in complying with laws governing the payment for certain health benefit claims submitted by out-of-network providers generally with respect to certain emergency and other services specified in such laws and their implementing regulations (“Surprise Billing Laws”), that are applicable to your solo or small medical practice.

2. USERS

You must provide an accurate User count to FAIR Health. A “User” is defined as an individual who accesses, uses, or manipulates the Data Products, produces or enables an output from the Data Products (data, reports or the like), or who uses, or benefits from, any outputs from the Data Products. Your User count must include yourself, and all practitioners and billing staff in your practice, as well as other individuals who use or benefit from the Data Products. For example, you must count all doctors and other practitioners in your practice for the clinical service area purchased; your office billing staff who may use the data to prepare or manage bills for those practitioners; and any other individuals who might use the data in managing the practice, such as executive management or finance staff.

The Data Products may be used and accessed by only one individual, at a single solo or small medical practice, and a single location specified in your order form, unless additional individuals and/or other addresses have been specified in your order form or approved by FAIR Health in writing.

You will require each of your Users to comply with all requirements of this Agreement, and you will be liable for the acts and omissions, including any breach of confidentiality, by any of your Users or by any third-party who obtains access to the Data Products directly or indirectly through you.

3. LICENSE AND SCOPE OF USE

FAIR Health grants you a nonexclusive, nontransferable, royalty-bearing license to use the Data Products during the Term, within the United States, solely internally for purposes of your solo or small medical practice complying with Surprise Billing Laws.

Any other use is prohibited. Without limiting the foregoing, you will not use the Data to create fee schedules, to process claims, to perform medical diagnostic functions, to set treatment procedures or as a substitute for the medical judgment of a physician or qualified health care provider, and you will not use or disclose the Data in connection with any dispute, settlement, appeal or legal proceeding, except that you may disclose excerpts from the Data Products in connection with arbitrations, internal appeals, or other proceedings authorized under the relevant Surprise Billing Law.

You may not make copies of the Data Products for any reason. You may not modify the Data Products, publish, distribute (including via the internet or other public computer-based information system), or create any derivative works based on the Data Products (including translations); nor transfer, distribute, sell, rent, license, sublicense, share, lease or otherwise make available the Data Products (or any copy or portion thereof) to any person or entity not an authorized User under this Agreement; nor use the Data Products to provide service bureau or similar types services to third parties.

All rights, including, without limitation, all rights in patents, copyrights, trademarks and trade secrets, encompassed in the Data Products will remain in FAIR Health or its licensors, as applicable. You do not obtain any rights in the Data Products except the limited right to use the Data Products as provided herein.

4. DELIVERY, ACCESS AND UPDATES

You will access the Data Products in the manner chosen by FAIR Health. This may be a file delivered to you electronically or made available to you for download, or a web-based query tool that allows you to look up data licensed hereunder. If FAIR Health notifies you that it will be providing the Data Products to you in a different method or format, you agree to promptly switch to such new format or method.

The Data Products may be replaced or updated periodically; you may use the Data Products until they are replaced with a new or updated form, or until the end of the Term of this Agreement, whichever occurs first.

5. TERM

You may use the Data Products solely during the Term of this Agreement. The Term is a period of one (1) year that begins on the date the Data Products are made available to you by FAIR Health. FAIR Health may terminate this Agreement immediately if you breach any of the terms.

When the Term expires or terminates, you may not use or retain any copies of the Data Products for any purpose. You must delete and remove all copies of the Data Products from all your systems, computers and files and destroy any physical copies of the Data Products, except that you may continue to use any fee schedules you created based upon the Data, and, if you are currently using any portion of the Data in an arbitration or other proceeding at the time this Agreement terminates, you may retain that Data until the conclusion of such arbitration or proceeding. This obligation survives termination of this Agreement.

6. ABOUT THE DATA

FAIR Health is not determining, developing or establishing appropriate fee or reimbursement levels for “surprise bills” or for you and your business. The Data Products represent information drawn from healthcare claims data contributed to FAIR Health, and other sources. The Data Products do not constitute stated or implied “reasonable and customary” charges from FAIR Health, nor report actual allowed amounts associated with any payor or plan, and FAIR Health is not responsible for establishing any fee schedule for use in your business. Any reliance upon, interpretation of or use of the Data Products for any purpose is in your sole discretion, subject to any state requirements regarding your use of such data in connection with “surprise bills.” You will not represent or characterize the Data Products, or your use of them, in any way contrary to the description expressed herein. You will comply with all laws, orders, regulations or directions of government applicable to your use, in any way, of the Data Products, and in your acts, omissions or decisions made in connection with or after consulting the Data Products.

The Data Products are not identifiable to any individual patient, provider, payor, plan or data contributor. In no event will you seek, nor will FAIR Health provide, any underlying data that identifies, or could be used to identify, any patient, provider, payor, plan, or data contributor. You agree to object to, and seek to quash, any attempt by any opposing party to obtain such data. You expressly agree and acknowledge that such data may be confidential, proprietary, and/or trade secret information of FAIR Health and/or the data contributors.

7. COMPLIANCE

If FAIR Health reasonably believes that you have violated the terms of this Agreement, FAIR Health will have the right to inspect and audit your business records to confirm your compliance with the terms of this Agreement. Any such records will be treated confidentially by FAIR Health. Notwithstanding the foregoing, FAIR Health will not have the right to access any health information about your patients that is protected by HIPAA or other federal or state patient privacy laws.

8. LEGAL CHALLENGES

You agree to notify FAIR Health in writing within ten (10) business days after learning of a legal challenge or government inquiry that involves or reasonably could involve issues regarding the integrity of the Data Products, including the collection, compilation or maintenance of the Data Products or any of the data or methodologies underlying such Data Products. You will not disclose the Data Products or any data or any Confidential Information (defined below) relating to the Data Products in any public legal proceeding without informing FAIR Health in advance and allowing FAIR Health an opportunity to seek a protective order or other judicial relief prior to any disclosure.

9. CONFIDENTIALITY

You will hold in confidence and will not disclose, use or provide to any third party any FAIR Health Confidential Information, except as permitted under this Agreement or as authorized in writing by FAIR Health. "FAIR Health Confidential Information" includes the Data Products, the Licensed Codes, and all of FAIR Health’s and its third-party vendors' trade secrets, intellectual property, and confidential or proprietary tools, products, methods, processes, associated algorithms, and other information about FAIR Health databases, research and product development. If you learn of any unauthorized disclosure of FAIR Health Confidential Information, you will promptly inform FAIR Health and, if requested, assist FAIR Health in obtaining appropriate relief such as an injunction or protective order. These confidentiality obligations will survive termination of this Agreement.

10. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES

FAIR Health’s liability to you for direct damages arising out of this Agreement will not exceed the amount you have paid us for the license for the Term. Neither FAIR Health, its third-party vendors nor its licensors will be responsible under this Agreement for any lost profits or any indirect, incidental, special or consequential damages resulting from FAIR Health performance or failure to perform under this Agreement, including, without limitation, the use of or inability to use the Data Products. FAIR Health and its licensors make no warranties or representations relating to the Data Products, or the services, express or implied, and specifically disclaim all such warranties or representations with respect to the same, including, without limitation, the warranties of merchantability, non-infringement, title, value, reliability and fitness for a particular purpose.

11. GENERAL

No amendment or waiver of any term herein will be binding unless in writing and signed by both parties. This License will be construed in accordance with the laws of the State of New York without regard to its conflicts of laws rules. You may not assign or transfer this License, or any of the rights or licenses granted under it. Any attempted assignment without FAIR Health consent will be void. Any merger or acquisition of control of you will be deemed to be an assignment. FAIR Health may assign or transfer this License without your consent. Subject to the forgoing, this License will be binding upon, inure to the benefit of, and be enforceable by the successors and permitted assigns of the parties. If any term of this License is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other term hereto, and this License will be interpreted and construed as if such term, to the extent it has been held to be invalid or unenforceable, had never been contained herein. FAIR Health will not be responsible for failures to fulfill any obligations due to causes beyond its control.

12. CPT, CDT and ASA

This Agreement includes a nonexclusive, nontransferable sublicense to use the CDT®, CPT® and ASA® Content (each defined below) (collectively, the "Licensed Codes") which are included in the Data Products and are subject to the following terms. You agree that this sublicense to you of Licensed Codes depends on FAIR Health’s continuing contractual relationships with the ADA, AMA and/or ASA, as applicable.

The Data Products may contain (i) Current Procedural Terminology Codes ("CPT") owned and copyrighted by the American Medical Association ("AMA"), (ii) ASA content ("ASA Content") owned and copyrighted by the American Society of Anesthesiologists ("ASA"), or (iii) Current Dental Terminology Codes (“CDT”) owned and copyrighted by the American Dental Association (“ADA”) and licensed to FAIR Health. You are subject to certain rules governing the use of these Licensed Codes, which form an integral part of this Agreement. You do not acquire any proprietary interest in Licensed Codes. Except for the limited rights granted to you in this Agreement, you agree that all other rights in the Licensed Codes are owned and retained by AMA, ADA and ASA, respectively. All notices of proprietary rights, including trademark and copyright in the Licensed Codes must appear on all permitted back-up or archival copies made by you. CPT is a registered trademark of the AMA. CROSSWALK®, Reverse CROSSWALK® and Relative Value Guide® are trademarks of ASA.

AMA, ADA, and ASA will be direct and intended third-party beneficiaries of this License for the purpose of enforcing at law and at equity all their respective rights under this License against you, FAIR Health and any third party, as well as your covenants and the warranty disclaimers and limitations of a liability set forth in this License, whether or not such provisions make specific reference to the ADA, AMA, the ASA, CDT, CPT or ASA Content.

You will not use Licensed Codes or information contained therein on the internet or in any public computer-based information system or public electronic bulletin board. You will not create any derivative works (including translations) based on Licensed Codes except as set forth in the License and you are prohibited from transferring, selling, leasing, licensing (including sublicensing) or otherwise making the Licensed Codes available to any unauthorized party. You may print or download the Licensed Codes from the Data Products solely for your own internal use, without any modification to the content, and in such a way that the appropriate citations and acknowledgements are included.

THE AMA PROVIDES CPT, and the ADA PROVIDES THE CDT, "AS IS", WITHOUT ANY LIABILITY TO THE AMA OR ADA RESPECTIVELY, INCLUDING, WITHOUT LIMITATION, NO LIABILITY FOR CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST PROFITS FOR SEQUENCE, ACCURACY OR COMPLETENESS OF THE CPT OR CDT DATA. THE AMA AND ADA DO NOT WARRANT THAT CPT OR CDT WILL MEET YOUR REQUIREMENTS. THE AMA AND ADA EACH DISCLAIM ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE OR INTERPRETATION OF INFORMATION CONTAINED OR NOT CONTAINED IN CPT AND CDT, RESPECTIVELY. IF THE CPT DATA IS NOT INTACT, THE AMA'S SOLE RESPONSIBILITY IS TO MAKE REPLACEMENT COPIES AVAILABLE TO FAIR HEALTH. EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED CODES AND DOCUMENTATION ARE PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU (AND NOT THE ADA, AMA OR ASA) BEARS ALL RISK RELATING TO QUALITY, ACCURACY AND PERFORMANCE OF LICENSED CODES. THIS LIMITATION OF LIABILITY WILL APPLY TO ANY CLAIM OR CAUSE WHATSOEVER WHETHER SUCH CLAIM OR CAUSE IS IN CONTRACT, TORT OR OTHERWISE.

ASA's sole responsibility is to make available to FAIR Health replacement copies of the ASA Content if the ASA Content is not intact. ASA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in ASA Content.

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

You agree to indemnify ADA (including reasonable attorneys' fees and costs of litigation) against and hold ADA harmless from any and all claims, liability, losses, damages and expenses resulting from your use of the CDT, in breach of any of the terms of this Agreement, or your use of any data or documentation received from ADA, regardless of the form of action.

U.S. Government Rights.

a. CPT Codes. CPT is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. This agreement does not grant the Federal Government a direct license to use CPT based on FAR 52.227-14 (Data Rights - General) and DFARS 252.227-7015 (Technical Data - Commercial Items).

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

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS IS THE ONLY AGREEMENT BETWEEN YOU AND FAIR HEALTH RELATED TO THE SUBJECT MATTER OF THIS LICENSE. TO INDICATE YOUR ACCEPTANCE OF THE TERMS, YOU MUST CLICK ON THE BOX LABELED "I AGREE TO THESE TERMS AND CONDITIONS" BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU WILL NOT BE AUTHORIZED TO ACCESS THE DATA PRODUCTS.