Terms & Conditions
1. Independent Contractor Status.
The parties agree that Titanium is an independent contractor and not an employee, agent, or joint venturer of either Customer. The relationship governed by this Agreement is non-exclusive and Titanium retains the right to perform work for other clients during and following the term of this Agreement.
a. Grant of License by Titanium. Titanium hereby grants to each Customer a perpetual, world-wide, royalty-free, non-exclusive, non-transferrable license to use the Design Deliverables and any derivative works created by Customer, but only to the limited extent required for Customers to use the Design Deliverables and to operate their website in the course of their businesses and for their own business purposes. The license granted pursuant to this Agreement shall not include the right for Customer to sell, grant sub-licenses, or distribute the Design Deliverables or use the Design Deliverables for any other purpose whatsoever without the express written permission of Titanium. The license granted pursuant to this Agreement shall include the right for Customer to permit access to the Design Deliverables included in its website by third-party vendors, in Customer’s sole discretion; provided, however, that prior to permitting such access, Customer shall require any such third-party vendor to execute a written agreement in which such third-party vendor agrees that (i) its access to the Design Deliverables is for the limited purpose of assisting Customer in the course of Customer’s business; and (ii) it will not use any aspect of the Design Deliverables or information regarding either that is gained through engagement by Customer for any commercial purposes. Customer acknowledges and agrees that Titanium may produce website designs for its other customers that are substantially similar to the Design Deliverables.
b. Grant of License by Customers. All materials, information, photography, videos, writings and other creative content provided to Titanium by Customers for use in the preparation of Customers’ website (“Customer Content”) shall remain the sole property of Customers; provided, however, that Customers hereby grant to Titanium a perpetual, world-wide, royalty-free, non-exclusive, non-transferrable license to use Customer Content and any derivative works created by Titanium, but only for the limited purpose of Titanium’s marketing of its services to other prospective customers. Customers shall be solely responsible for obtaining any consent, authorization or permission that may be required by the Privacy Regulation (as defined in Section 5) or applicable state laws and/or regulations prior to furnishing Customer Content which constitutes PHI (as defined in Section 5) to Titanium.
c. Third Party Interests. To the extent that any Design Deliverable integrates third-party software, Titanium will provide along with the Design Deliverable a license agreement between Customers and the third party vendor. Any third party software or materials delivered to Customers pursuant to this Agreement are provided AS IS, and Customer's rights regarding such third party software will be governed by the applicable license agreement between Customers and the third party vendor.
3. Limitation of Liability.
a. Disclaimer. TITANIUM DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ln no event shall Titanium be liable for consequential, incidental, special or indirect damages, regardless of whether it has been advised of the possibility of such damages.
b. Mutual Limitation of Liability. The parties agree that their respective liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid in fees pursuant to this Agreement.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Agreement except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
2. Business Associate Agreement.
The parties acknowledge that it is necessary for Customers to disclose and/or provide access to protected health information as defined at 45 C.F.R. § 164.501 ("PHI") to Titanium in order for Titanium to perform some aspects of the Services. In accordance with 45 C.F.R. parts 160 and 164 (the “Privacy Regulation”) and 45 C.F.R. Part 160 and Part 164, Subparts A and C (the “Security Regulation”) promulgated under the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”), the parties hereby agree to the following requirements applicable to Titanium’s status as a “Business Associate” pursuant to HIPAA. All capitalized terms in this Section 5 not otherwise defined shall be defined as set forth in the Privacy Regulation and the Security Regulation.
a. Permitted Uses and Disclosures. Titanium shall not use and disclose PHI except as may be necessary for purposes of providing the Services described in this Agreement and any SOW. Titanium shall not use or disclose PHI received from Customers in any manner that would constitute a violation if so used or disclosed by Customers; provided, however, that Titanium may disclose or provide access to PHI for proper management and administrative services or to carry out its legal responsibilities if (a) the third party recipient provides reasonable assurance to Titanium that the third party recipient shall hold confidential the PHI as required under this Agreement and shall only disclose or re-disclose the PHI as required by law or as part of the purpose of the disclosure to Titanium, and (b) the third party recipient agrees to immediately notify the Titanium of any breaches of confidentiality to the extent known.
b. Nondisclosure and Use. Titanium shall not use or further disclose PHI other than as stated in this Agreement or as required by law.
c. Safeguards. Titanium shall implement safeguards as are necessary to prevent use or disclosure of the PHI other than as permitted in this Agreement. Titanium shall also implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic PHI that it creates, receives, maintains, or transmits on behalf of Customers as required by the Security Regulation.
d. Reporting on Unlawful Use and Disclosure. Titanium shall report to Customers in writing any use or disclosure of PHI not provided for by this Agreement within two (2) business days of becoming aware of such use or disclosure. Titanium shall report any security incident of which it becomes aware to Customers. Titanium will mitigate, to the extent feasible, any known harmful effect of any use or disclosure of PHI by Titanium that is in violation of the requirements of the Agreement
e. Agents/Subcontractors. Titanium shall ensure that any agent(s) or subcontractor(s) to whom it provides access to PHI, or to whom it provides PHI received from, created or received by Titanium on behalf of Customers, agrees to the same restrictions and conditions that apply to Titanium with respect to such information. Titanium shall ensure that any agent, including a subcontractor, to whom it provides such information or access to such information, agrees to implement reasonable and appropriate safeguards to protect it.
f. Access Rights. To the extent applicable, Titanium shall make PHI maintained by Titanium or its agents/subcontractors in Designated Record Sets available to Customers within five (5) business days of a request by Customers. If the individual requests such PHI directly from Titanium, Titanium must notify Customers in writing within two (2) business days. Any decision to grant or deny access to PHI maintained by Titanium or its agents/subcontractors in Designated Record Sets shall be made by Customers.
g. Amendment Rights. Within five (5) business days of receipt of a request from Customers for an amendment of PHI or a record about the individual in a Designated Record Set, Titanium shall make such information available for amendment and incorporate any such amendment. If any person requests an amendment directly from Titanium, Titanium must notify Customers in writing within two (2) business days. Any decision to amend or to deny a request to amend PHI maintained by Titanium or its agents/subcontractors in Designated Record Sets shall be made by Customers.
h. Accounting Rights. Within five (5) business days of notice by Customers of a request for an accounting of disclosures of PHI, Titanium shall make available the information required to provide an accounting of disclosures for six (6) years prior to the request. At a minimum, such information shall include: (i) the date of disclosure; (ii) the name of the entity or person who received PHI and, if known, the address of the entity or person; (iii) a brief description of PHI disclosed; and (iv) a brief statement of the purpose of the disclosure that reasonably informs the individual of the basis for the disclosure, or a copy of the individual’s authorization, or a copy of the written request for disclosure. Titanium must implement a process that allows for such an accounting.
i. Internal Practices. Titanium shall make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Titanium on behalf of, Customers available to the Secretary for purposes of determining Customers’ and Titanium’s compliance with the Privacy Regulation.
j. Minimum Necessary. Titanium (and its subcontractors/agents) shall only request, use and disclose the minimum amount of information necessary to accomplish the purpose of the request, use and/or disclosure.
k. Data Ownership. Titanium acknowledges that the Customers are the owners of their respective PHI.
1. Return of PHI.
Upon any termination of this Agreement, if feasible, Titanium shall return or destroy all PHI that Titanium or its subcontractors/agents maintain in any form and retain no copies of such PHI. If such return or destruction is not feasible, Titanium shall continue to fulfill the requirements set forth in this Section 5 for as long as Titanium or its subcontractors/agents maintain such PHI; however, further uses and disclosures of PHI following termination shall be limited to those purposes that make the return or destruction of the PHI infeasible.
m. Termination for Material Breach. Customers may immediately terminate this Agreement if Customers determine that Titanium has acted or failed to act in a manner that constitutes a Material Breach of this Section 5. If, in the sole discretion of Customers, termination is not feasible, then Customers may report the circumstances constituting the Material Breach to the Secretary. Titanium acknowledges that any Material Breach would result in irreparable harm to Customers and that in addition to any available legal remedies, Customers has the right to seek an injunction and all other equitable rights and remedies available. As an alternative Customers may choose to afford Titanium with the opportunity to cure such Material Breach upon terms mutually agreeable to the parties. If such mutually agreeable terms cannot be reached within five (5) business days of notice by Customers to Titanium of the Material Breach, Titanium must cure such breach to the satisfaction of Customers, or Customers may terminate this Agreement as set forth above or, if not feasible, report the circumstances constituting the Material Breach to the Secretary.
a. Assignment. This Agreement may not be transferred, sold, assigned or delegated in whole or in part by Customers without the written consent of Titanium, not to be unreasonably withheld. Titanium may transfer, sell, assign or delegate this Agreement in its discretion at any time. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, legal representatives, successors, and assigns.
b. Entire Agreement; Modification. This Agreement represents the entire agreement between the parties and merges herewith any and all prior or contemporaneous oral or written agreements between the parties pertaining to the subject matter hereof. This Agreement may be modified, amended, or terminated only by a written instrument signed by all of the parties then bound hereto. The waiver by a party of any breach or default in performance shall not be deemed to constitute a waiver of any other or succeeding breach or default. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.
c. Governing Law and Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its choice of law principles. The parties consent to exclusive jurisdiction and venue in the federal and state courts sitting in Fulton County, Georgia. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and other expenses.
d. Severability. In the event that any portion or provision of this Agreement shall be deemed unenforceable by any court of competent jurisdiction, then, notwithstanding the same, the remaining portions and provisions of this Agreement shall be of full force and effect.
e. Change in Law. The parties agree to negotiate to amend the Agreement as necessary to comply with any amendment to any provision of HIPAA or its implementing regulations, including, but not limited to, the Privacy Regulation, which materially alters either party’s or both parties’ obligations under the Agreement. The parties agree to negotiate in good faith mutually acceptable and appropriate amendment(s) to the Agreement to give effect to such revised obligations; provided, however, that if the parties are unable to agree to mutually acceptable amendment(s) within sixty (60) days of the relevant change in law or regulations, either party may terminate the Agreement consistent with the terms set forth herein. This section shall be construed in light of any applicable interpretation or guidance on HIPAA and/or the Privacy Regulation issued by HHS or the Office of Civil Rights (“OCR”) from time to time.
f. No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
g. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto.
h. Time. The parties agree that time is of the essence in this Agreement.
i. Notices. Any notice, demand, or request with respect to this Agreement shall be in writing and shall be effective only if it is delivered by personal service, by overnight service with receipt of delivery, or mailed, certified mail, return receipt requested, postage prepaid, to the address set forth above. Such communications shall be effective when they are received by the addressee; but if sent by certified mail in the manner set forth above, they shall be effective five (5) days after being deposited in the mail. Any party may change its address for such communications by giving notice to the other party in conformity with this section.