NemoursLink Facility Agreement

THIS NEMOURSLINK FACILITY AGREEMENT (the ┬┐Facility Agreement┬┐) is made as of  ("Effective Date"; mm/dd/yy), by and between (Legal Name of the Health Care Entity as Incorporated), a (State of Incorporation) corporation, also known as (Assumed or Fictitious Name, or Doing Business as (d/b/a) Name) located at  (Address) (hereinafter referred to as "Facility") and The Nemours Foundation, a Florida not-for-profit corporation located at 10140 Centurion Parkway North, Jacksonville, Florida 32256 ("Nemours") (Nemours and Facility, together, the "Parties" or each individually, a "Party").

WHEREAS, Nemours has an electronic health record system (“NEHRS”) containing patient specific clinical information including progress notes, specialty consults, laboratory and imaging results, demographics and other information (hereinafter referred to as “Medical Records”); and,

WHEREAS, Nemours has an interest in improving the quality, delivery and coordination of care of Patients (as hereinafter defined) of Nemours by sharing with Facility certain Medical Records of Patients of Nemours with whom Facility has or had a relationship and the information shared pertains to such relationship; and

WHEREAS, Nemours has the ability to make available to Facility access to such Patients' Medical Records contained in the NEHRS via an internet connection to the Service (as hereinafter defined); and

WHEREAS, Facility desires to obtain access to such Patients' Medical Records contained in the NEHRS using the Service.

NOW THEREFORE, in consideration of the promises and covenants contained in this Facility Agreement, and for good and valuable consideration, Nemours and Facility agree as follows:

1. Access to Nemours Data:  Upon execution of this Facility Agreement by the Parties and any other required documents, including each User’s execution of the User Agreement, and subject to all terms and conditions in the User Agreement and this Facility Agreement, Nemours will make the Service available to Users and will provide Users limited training on the Service.

2. Definitions.

2.1 Authorized Agent or Representative means an individual who has the legal authority to obligate the Facility under this Facility Agreement.

2.2 Breach means the acquisition, access, use or disclosure of PHI in a manner not permitted by the Privacy Rule which compromises the security or privacy of the PHI, but does not encompass the Breach exclusions set forth in 45 C.F.R. §164.402.

2.3 HIPAA means Health Insurance Portability and Accountability Act of 1996 as amended, which contains the federal privacy regulations codified at 45 CFR §160 and §164 (Subparts A & E) and the federal security regulations codified at 45 CFR §160 and §164 (Subparts A & C).

2.4 Nemours Data means the PHI contained in Medical Records within the NEHRS and the Proprietary Information.

2.5 Patient means an Individual as defined in 45 C.F.R. § 160.103 ("the person who is the subject of protected health information").

2.6 Permitted Uses means uses of the Service described in Section 6 below.

2.7 Privacy Officer refers to a Nemours employee who is responsible for the development and implementation of Nemours privacy policies and procedures, and who can be contacted at privacy@nemours.org or (904) 697-4287.

2.8 Privacy Rule means the privacy standards at 45 C.F.R. Parts 160 and 164 (Subparts A & E).

2.9 Protected Health Information or PHI means individually identifiable health information as defined at 45 CFR §160.103. This information is protected by various state and federal privacy laws and regulations.

2.10 Proprietary Information means nonpublicly available information regarding the Service, NEHRS vendors and NEHRS enhancements. All Proprietary Information is confidential and may not be used for any purpose without the advance written consent of Nemours. Proprietary Information includes the NemoursLink Manual and any NemoursLink forms or documents.

2.11 Service means the availability of read-only, online access to certain Medical Records of Patients in the NEHRS whom have received health care services at Nemours, which access is provided by Nemours to Users using the NemoursLink software and other Nemours and NEHRS vendor-supplied services, software, databases, content, documentation, works of authorship and other materials and intellectual property.

2.12 Technical Liaison means the department or individual employed by Nemours who should be contacted by a User or Facility to report certain events or problems as required by this Facility Agreement. The contact information for the Technical Liaison is contained in Section 18 (Notices) below.

2.13 Treatment means treatment as defined in the HIPAA privacy regulations at 45 C.F.R. § 164.501.

2.14 Unsecured PHI means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of technology or methodology specified by the Secretary of the U.S. Department of Health & Human Services in the guidance issued under Section 13402(h)(2) of Public Law 111-5.

2.15 User means an individual person who:  (a) is an employee or contractor of the Facility; (b) is clinically licensed in the Facility’s state; (c) is authorized by the Facility to access its Patients’ PHI; and (d) is authorized by the Facility to access the NEHRS via the Service.

2.16 User Agreement means the agreement in the form attached hereto as Exhibit A which each User must enter into prior to being provided access to the Service.

3. Term and Termination. This Facility Agreement is effective on the Effective Date and will continue in effect until either Party terminates the Facility Agreement effective upon written notice of termination to the other Party. Nemours will consider any unauthorized use of the Service as a material breach of this Facility Agreement and grounds for immediate termination of this Facility Agreement. Nemours retains the right to unilaterally terminate access to the Service by any or all Users at any time in Nemours’ sole discretion, without advance notice to Facility.

4. Nemours Data. No rights or legal interest in Nemours Data is transferred to Facility under this Facility Agreement. Facility shall ensure Users do not access, copy, or use Nemours Data for any purpose other than for the Permitted Uses described in Section 6 below, unless Nemours consents in writing or such use or disclosure is required by law. If Facility receives a request or demand for disclosure of Nemours Data, including a subpoena, order or other legal mandate, Facility will immediately notify Nemours, and to the extent feasible consistent with the legal mandate, withhold response to permit Nemours to seek a protective order.

5. Service Availability. Subject to the terms and conditions of this Facility Agreement, Nemours will make the Service available to Users at reasonable times, provided that the Service may be unavailable when maintenance is being performed and at other times in Nemours’ sole discretion. USERS HAVE NO RIGHT OF PRIVACY WHEN USING THE SERVICE. Nemours may, directly or through a third party designee, monitor, record, inspect, test, and/or audit Facility’s and Users’ use of the Service and compliance with this Facility Agreement. Nemours may also permit any regulatory authority with jurisdiction over Nemours, Facility, and/or any User, to perform inspections, tests, and/or audits if requested by such regulators. Also, Nemours may permit its NEHRS vendors to inspect, test or audit the use of the NEHRS components pursuant to the terms of their agreements with Nemours. Facility hereby consents and shall cause Users to consent to the monitoring, inspections, tests, and audits described in this Section and shall cooperate and cause Users to cooperate therewith.  Nemours shall have the right to eliminate, change, or modify the Service or any part of the NEHRS as it determines appropriate in its sole discretion, including in the event of any modification, update, replacement, unavailability or termination of any NEHRS component.

6. Permitted Use of Service.  Access to and use of the Service is limited to Treatment and Facility may permit Users to access and use the Service solely for such purpose.  Facility shall not permit Users to access PHI of Individuals with whom Facility does not either currently have or previously had a Treatment relationship pertaining to the PHI sought to be accessed.  Facility shall ensure each User accesses the minimum PHI necessary for such User to perform his or her assigned job function for Facility.  Facility agrees that it will comply and will cause Users to comply with all applicable laws and regulations and this Facility Agreement in connection with access and use of the Service and all PHI accessed thereby. Facility hereby represents, warrants, and covenants that it has obtained all necessary consents, authorizations and permissions for such access and use.

7. Prohibited Use of Service. Facility and Users may not:

(a) Access or use the Service for any purpose other than the Permitted Uses listed in Section 6 above;
(b) Disclose to any third party, transfer to any third party, sell to any third party, or otherwise permit or facilitate third party access to, Nemours Data;
(c) Use or permit use of any Nemours Data in any manner that directly or indirectly competes with Nemours; or
(d) Use or disclose Nemours Data other than as permitted by this Facility Agreement.

8. Privacy and Confidentiality Obligations.  Facility acknowledges it is a Covered Entity subject to the HIPAA privacy and security rules, and various other federal and state laws and regulations on information privacy and security, and agrees to comply with such laws and regulations. Facility understands that the Service provides online access to Nemours Data, including PHI, and agrees to comply, and to cause Users to comply, with HIPAA in connection with use of the Service, and to take all reasonable and necessary precautions required by HIPAA to maintain the security and privacy of the PHI accessed through the Service. Specifically, Facility agrees to, and agrees to cause Users to:

(a) Report to the Nemours Privacy Officer any unauthorized access, use, or disclosure of Nemours Data of which Facility or Users become aware;
(b) Take appropriate precautions to ensure that Patients, visitors, or other unauthorized persons will not be able to see computer screens during access to Nemours Data;
(c) Advise Patients requesting amendment of their PHI contained in the NEHRS that the Facility does not have the authority to amend their PHI and that any amendments or corrections to it must be accomplished by contacting the Nemours Privacy Officer directly;
(d) Have in place a written agreement with any contractor authorized by Facility as a User to access the Service; and
(e) Make its internal practices, books and records relating to the use and disclosure of PHI available to Nemours and/or the Secretary of Health and Human Services for the purposes of determining compliance with applicable laws and regulations.

9. Obligations of Facility.

(a) Equipment and Supplies. Facility is solely responsible for the costs of all software, hardware, equipment, maintenance, supplies, connectivity, and other services required for Users to access and use the Service (“Facility Provided Components”). Such costs include, but are not limited to, cost of acquisition, installation, operation, and maintenance of personal computers and printers; costs related to wiring, hardware, software, phone charges, and Internet access services; and costs of ongoing equipment and supply upgrades. The Facility Provided Components must meet the minimum requirements provided by Nemours, which are subject to change.  Facility shall ensure Facility Provided Components and any other systems used by Users to access the Service have appropriate firewalls and up-to-date anti-virus software and are promptly updated with software and operating system updates and patches to prevent the introduction or propagation of computer viruses or other malware or malicious code.  Facility shall ensure only Users access the Service through Facility’s systems and sites and shall prevent unauthorized access to the Service through any of Facility’s systems or sites.
(b) User Authorization. Facility must notify the Technical Liaison in writing of the names of Users authorized by Facility to access the Service. A User will not be granted access to the Service until the User signs a User Agreement, at which time Nemours will assign such User a unique login and password to access the Service. Completion of the User Agreement requires the User to acknowledge he or she has read this Facility Agreement. Therefore, it is the obligation of the Facility to give a copy of this Facility Agreement to each User to read before the User signs the User Agreement.
(c) Access to Service. The selection of Users and the implementation and maintenance of security related to access to the Service by Users are the sole responsibility of Facility. Facility shall, and shall also ensure each User, maintains the security and confidentiality of their individual login and password and does not share or disclose their assigned login or password to others. FACILITY SHALL ENSURE ALL USERS COMPLY WITH THE TERMS AND CONDITIONS OF THIS FACILITY AGREEMENT, AND SHALL ASSUME ALL RESPONSIBILITY AND LIABILTY AS BETWEEN NEMOURS AND FACILITY WITH RESPECT TO USE OF THE SERVICE BY FACILITY, USERS AND ANY OTHER PERSONS WHO MAY ACCESS THE SERVICE USING LOGINS AND/OR PASSWORDS PROVIDED TO USERS. Nemours reserves the right to suspend or terminate any User's access to the Service for any reason.
(d) Termination of Access. In the event that a User is no longer authorized by Facility to access the Service, Facility shall immediately notify the Technical Liaison both orally at (877) MYNEMOURS and in writing so that the User’s access to the Service may be terminated. Facility remains responsible for all access to the Service by such User or through such User’s login and password until written notice to terminate such User’s access is received by the Technical Liaison.
(e) Ensure Appropriate Use of Service. Facility shall immediately notify the Nemours Privacy Officer in instances where there is reasonable suspicion or concern that there may have been password compromise, unauthorized access, use or disclosure of the NEHRS, Service, or Nemours Data, or alteration of Service software or Nemours Data, or any other violations of this Facility Agreement, the User Agreement, or state or federal law. Notification should be made orally and in writing to the Privacy Officer at (904) 697-4287 and privacy@nemours.org.
(f) Representations, Warranties, and Covenants. Facility represents, warrants, and covenants to Nemours that:  (i) it is in compliance with all applicable state and federal laws and regulations; (ii) neither Users, Facility, nor any of its officers, employees or agents has been debarred, penalized by, convicted, sanctioned, suspended, excluded or otherwise deemed ineligible to participate in any state or federal reimbursement program, including Medicaid or Medicare; and (iii) each User shall, prior to receiving access to the Service and at all times throughout the term of the Facility Agreement, maintain an unrestricted, unsuspended and unrevoked license to practice medicine or nursing, as applicable, in the Facility’s state, and not be convicted of a felony, a misdemeanor involving fraud, dishonesty, controlled substances, or moral turpitude, or any crime relevant to the provision of medical or nursing services or the practice of medicine or nursing, as applicable.  Facility shall immediately notify the Technical Liaison in accordance with Section 17 (Notices) below, and Nemours may, in its sole discretion, immediately terminate this Facility Agreement in the event that:  (1) any User, the Facility, or any of its officers, employees or agents are sanctioned or excluded from participation in any state or federal reimbursement program as described above; (2) any User’s license to practice medicine or nursing, as applicable, is restricted, suspended, revoked, or otherwise terminated or expires; or (3) any User is  convicted of a felony, a misdemeanor involving fraud, dishonesty, controlled substances, or moral turpitude, or any crime relevant to the provision of medical  or nursing services or the practice of medicine or nursing, as applicable.
(g) Licensed Use of Service. Subject to the terms and conditions of this Facility Agreement, Nemours grants to Facility a terminable, nonexclusive, nontransferable, limited license for Facility to permit Users to access and use the Service solely for the Permitted Use in Section 6 above. The foregoing license is only a permission to use the Service subject to all terms and conditions herein and neither Facility nor any User is entitled to a copy of any software or any other component used to provide the Service. Without in any way limiting the prohibitions or limitations stated elsewhere in this Facility Agreement, Facility shall not, and shall not permit Users to, reproduce, publicly display, reverse engineer, disassemble, decompile, translate, port, adapt, modify, or make derivative works of the Service or the NEHRS; or sublicense, lease, lend, loan, re-distribute, re-transmit, or time-share the Service or NEHRS or make them available otherwise for access or use by any person or entity other than Facility and Users in accordance with this Facility Agreement.
(h) Copyright. The Service and NEHRS include materials that are protected by law, including United States copyright, trade secret law and other intellectual property laws and by international treaty provisions. All rights not granted under this Facility Agreement are expressly reserved to Nemours and/or as applicable, Nemours' third party licensors and suppliers. Facility shall not, and shall cause Users to not, remove any copyright, trademark, or other intellectual property or proprietary rights notices of Nemours or its third party licensors or suppliers from the Service or NEHRS or any copies, reports or other materials or data generated therefrom.
(i) Return of Proprietary Information. On Nemours' written request or upon the expiration or termination of this Facility Agreement for any reason, Facility will promptly: (a) return or destroy, at Nemours’ option, all originals and copies of all documents and materials it has received containing Nemours’ Proprietary Information; and (b) deliver or destroy, at Nemours’ option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by Facility, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a), and provide Nemours a notarized written statement of an authorized officer of Facility certifying that all documents and materials referred to in subparagraphs (a) and (b) have been delivered to Nemours or destroyed, as requested by Nemours.
(j) Facility Cooperation.  Upon Nemours’ request from time to time, Facility agrees to provide Nemours with information regarding Facility’s plans, controls and measures, operating documentation and other documentation relating to the security and privacy of PHI, to complete or update any Nemours-provided information privacy/security risk-assessment or questionnaire, and to make knowledgeable Facility personnel available to answer questions regarding the foregoing.

10. Assignment. Neither this Facility Agreement nor any of the rights herein may be assigned by Facility without the express, prior written approval of Nemours, which shall be within Nemours’ sole discretion. Nemours may, without the consent of Facility, assign this Facility Agreement or any rights or obligations herein.

11. Relationship of the Parties. The Parties are independent contractors.  It is expressly understood and agreed that this Facility Agreement is not intended to, and does not create, a joint venture, franchise, partnership, association, or other form of a business organization or agency relationship between the Parties. Neither Party shall have any right, power, or authority to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party, except as expressly provided herein.

12. Indemnification. Facility shall indemnify and hold harmless Nemours, its affiliates and subsidiaries, and its and their directors, officers, employees, agents, licensors, and suppliers (each, an “Indemnitee”) from and against any and all Claims and Losses arising out of or relating to any access to or use of the Service, NEHRS, or Nemours Data by or through Facility, including by Users or any other persons who may access the Service, NEHRS, or Nemours Data using logins and/or passwords provided to Users. Additionally, Facility shall indemnify and reimburse Nemours, its affiliates and subsidiaries for all actual costs of notification and associated mitigation, including credit monitoring and identity theft insurance, incurred by Nemours or a Nemours affiliate or subsidiary to mitigate the harm for affected persons whose PHI has been or may have been compromised as a result of a Breach of Unsecured PHI arising out of or relating to any access to or use of the Service, NEHRS, or Nemours Data by or through Facility, including by Users or any other persons who may access the Service using logins and/or passwords provided to Users.  “Claims” means any civil, criminal, administrative, regulatory or investigative action or proceeding commenced or threatened by a third party, including, without limitation, governmental authorities and regulatory agencies, however described or denominated.  “Losses” means all judgments, settlements, awards, charges, liabilities, penalties, fines, interest, internal and external damages, losses, injuries, costs and expenses (including, without limitation, reasonable attorneys’ fees and internal and external costs of investigations, litigation, hearings, proceedings, document and data productions), however described or denominated, and in each instance whether (a) granted or awarded to or ordered to be paid to a third party or assessed, levied or ordered to be paid by a governmental authority or regulatory agency or (b) incurred, suffered, paid or lost by any Indemnitee.

13.  Limitation of Liability; Disclaimer.  IN NO EVENT SHALL NEMOURS’ VENDORS, LICENSORS, SUPPLIERS, OR OTHER PROVIDERS OF THE SERVICE, THE NEHRS OR ITS COMPONENTS BE LIABLE TO FACILITY OR USERS FOR ANY DAMAGES OF ANY KIND OR NATURE, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES.  UNDER NO CIRCUMSTANCES SHALL NEMOURS, ITS AFFILIATES AND SUBSIDIARIES, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND INSURERS BE LIABLE TO FACILITY OR ANY USER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER OR FOR ANY EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, AND NOTWITHSTANDING THE FORM (e.g., CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.  NEMOURS’ ENTIRE LIABILITY TO FACILITY AND USERS FOR DAMAGES ARISING UNDER THIS FACILITY AGREEMENT AND ALL USER AGREEMENTS, REGARDLESS OF THE FORM OF ACTION AND IRRESPECTIVE OF FAULT OR NEGLIGENCE, SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED ONE THOUSAND DOLLARS ($1,000) IN THE AGGREGATE.

ANY PROCEDURES, PROTOCOLS, RULES, OR GUIDELINES FOR MEDICAL TREATMENT INCORPORATED INTO OR PROVIDED WITH THE SERVICE OR NEHRS ARE PROVIDED AS EXAMPLES ONLY, AND FACILITY AND USERS MUST TEST AND VALIDATE THAT ANY SUCH PROCEDURES, PROTOCOLS, RULES, OR GUIDELINES ARE BOTH MEDICALLY CORRECT AND IN ACCORDANCE WITH FACILITY’S AND USERS’ REQUIREMENTS, PRACTICE, JUDGMENT, STANDARD OF CARE, AND PROCEDURES.  FACILITY AGREES THAT THE SERVICE IS SOLELY A TOOL FOR AUGMENTING THE DOCUMENTATION OF PATIENT CARE AND IS NOT INTENDED IN ANY WAY TO ELIMINATE, REPLACE OR SUBSTITUTE FOR, IN WHOLE OR IN PART, USERS' MEDICAL OR NURSING JUDGMENT, AS APPLICABLE THERETO. FACILITY AGREES THAT THE SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY FOR ANY MEDICAL DECISIONS OR ACTIONS MADE BY USERS WITH RESPECT TO A PATIENT’S MEDICAL CARE AND FOR DETERMINING THE ACCURACY, COMPLETENESS OR APPROPRIATENESS OF ANY DIAGNOSTIC, CLINICAL OR MEDICAL INFORMATION WITH REGARD TO PATIENTS PROVIDED BY THE SERVICE RESIDES SOLELY WITH FACILITY AND USERS.

THE SERVICE IS PROVIDED AS-IS, AND NEMOURS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.  NEMOURS DOES NOT WARRANT THAT USE OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE. NO REPRESENTATION OR STATEMENT SHALL BE BINDING UPON NEMOURS AS A WARRANTY OR OTHERWISE UNLESS EXPRESSLY CONTAINED IN THIS FACILITY AGREEMENT.

14. Governing Law; Jurisdiction. This Facility Agreement shall be construed, and the rights and liabilities of the Parties determined, in accordance with the laws of the state of Florida, except with regard to the conflicts of law principles of the state of Florida to the extent they would apply the laws of another state to this Facility Agreement. Sole and exclusive jurisdiction and venue for all legal actions and proceedings arising out of or relating to the Facility Agreement shall be in (a) the United States District Court for the Middle District of Florida and its appellate courts, and (b) any court of the State of Florida sitting in Jacksonville, Florida, and its appellate courts.  The parties hereby submit to the jurisdiction and venue of the aforementioned courts.  Each party waives, to the fullest extent permitted by law, any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to the Facility Agreement brought in any state or federal court located in Jacksonville, Florida, and any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. If any dispute arises between the Parties which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded. 

15. Limitation on Actions.  Any claim or cause of action by Facility against Nemours with respect to this Facility Agreement must be commenced within one (1) year after the accrual thereof or it shall be barred.

16. Insurance Requirements.  Facility, at its own cost and expense, shall obtain and maintain in force during the term of the Agreement, a policy of network security/privacy liability (cyber liability) insurance including errors and omissions coverage in an amount of not less than Five Million Dollars ($5,000,000) per incident and Five Million Dollars ($5,000,000) in the aggregate, and including, at minimum, protection of private or confidential information, whether electronic or non-electronic; network security and privacy liability; protection against liability for systems attacks, denial or loss of service, introduction, implantation or spread of malicious software code; and protection against liability for security breach, unauthorized access and use of data including regulatory action expenses and notification and credit monitoring expenses.  The insurance policy required to be maintained by Facility hereunder shall provide that the same shall not be canceled or altered without first giving thirty (30) days prior written notice thereof to Nemours.  Facility shall provide Nemours such proof of Facility’s compliance with the requirements of this Section as Nemours may request. 

17. Survival. Expiration or termination of this Facility Agreement shall not release the Parties from any previously accrued liabilities, or obligations under this Facility Agreement which by their nature are intended to survive, including but not limited to Sections 4 (Nemours Data),  8 (Privacy and Confidentiality Obligations), 9(i) (Return of Proprietary Information), 12 (Indemnification), 13 (Limitation of Liability; Disclaimer), 14 (Governing Law; Jurisdiction), and 15 (Limitation on Actions),  which shall survive and continue in effect beyond the termination or expiration of this Facility Agreement.

18. Notices. Any notices required or permitted to be given under this Facility Agreement to the Technical Liaison or Nemours shall be in writing and may be delivered personally, sent by registered or certified mail, by a nationally recognized overnight delivery service, or sent by facsimile or electronic mail with confirmation, addressed as follows (or to any address(es) Nemours may subsequently specify to Facility in writing): 

Nemours Children's Clinic - Orlando
9161 Narcoossee Road, Suite 206
Orlando, FL 32827
Attention:  Nemours Health Informatics

With required copies to:

The Nemours Foundation
Office of Contracts Administration
1600 Rockland Road
Wilmington, DE 19803
Email: oca@nemours.org

and

The Nemours Foundation
Attention:  Privacy Officer
10140 Centurion Parkway North
Jacksonville, FL 32256
Email:  Privacy@nemours.org
Facsimile Number: (904) 697-5989         

Any notices required or permitted to be given under this Agreement to Facility or Users shall be in writing and may be delivered to the Facility at the address set forth in the introductory paragraph to this Facility Agreement.

19. Entire Agreement and Waiver. This Facility Agreement constitutes the entire agreement between the Parties and supersedes all other written or oral agreements with respect to the subject matter hereof. This Facility Agreement may not be altered, amended or modified except as agreed in writing by the Parties. No consent or waiver, express or implied, by either Party in the performance by the other Party of its obligations under this Facility Agreement shall be deemed or construed to be a consent to or waiver of any other breach or default by the other Party.

20. Advertising and Publicity.  Neither party shall use the name, logo or trademark of the other or its affiliates or subsidiaries in any form of publicity or promotional or advertising material, or in any communications with the media without the other’s prior written consent to the specific contemplated use.  Nemours may terminate the Facility Agreement and seek injunctive relief immediately if Facility violates this provision.  Requests for permission to use Nemours’ name or marks should be directed to The Nemours Foundation, Managing Director of Public Relations and Corporate Communications, 10140 Centurion Parkway North, Jacksonville, FL 32256.

21. Rules of Construction.  Interpretation of the Facility Agreement shall be governed by the following rules of construction:  (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) the word “including” and words of similar import shall mean “including, without limitation,” (c) provisions shall apply, when appropriate, to successive events and transactions, (d) headings are for reference purposes only and shall not affect in any way the meaning or interpretation of the Facility Agreement, and (e) the Facility Agreement was drafted with the joint participation of both parties and shall be construed neither against nor in favor of either, but rather in accordance with the fair meaning hereof.

22. Counterparts and Electronic Signature: This Facility Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed signature page by facsimile transmission or PDF will be as effective as delivery of a manually signed counterpart.