DIGITAL QUALITY MEASURE EVALUATION PACKAGE LICENSE AGREEMENT
This License Agreement, along with all materials referenced herein (“Agreement”), is a legal agreement between the individual or entity purchasing the license to use the digital HEDIS Measures (defined below) (hereinafter the “Licensee”) and the National Committee for Quality Assurance (“NCQA”). “Licensee” means only the individual or legal entity whose authorized acceptance appears below as evidence of agreement to the Agreement terms below. NCQA and Licensee may be individually referred to as a “Party”, or collective, the “Parties”.
Read this Agreement carefully before indicating acceptance by clicking the associated checkbox/button and moving forward. The individual accepting this Agreement on behalf of Licensee represents that by electronically signing this Agreement, the individual hereby binds the Licensee to the terms of this Agreement, and that such individual is an employee of Licensee and duly authorized to enter into and bind Licensee to the terms of this Agreement.
RECITALS WHEREAS, NCQA is an independent nonprofit organization widely recognized as the authority on the quality of health plans;
WHEREAS, NCQA has developed specifications for the Healthcare Effectiveness Data and Information Set (“HEDIS®”) measures and specifications to standardize the collection and reporting of health care quality information;
WHEREAS, NCQA has created electronic versions of the HEDIS measures, which include the HEDIS Value Set Directory (“HEDIS VSD”) that crosswalks HEDIS to third party medical and billing codes;
WHEREAS, Licensee desires to use certain HEDIS measures to evaluate NCQA’s content and assess Licensee’s digital readiness or to develop and test Licensee’s Clinical Quality Language (“CQL”) engine; and
WHEREAS, NCQA desires to provide Licensee with a limited license to use the Licensed NCQA Content (defined below) in accordance with the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions:
“Licensed NCQA Content” shall mean only: (i) the digital versions of NCQA’s Measures (defined below), including base CQL libraries and C# Unit Tests; (ii) the HEDIS VSD for the Measures; (iii) test data for the Measures; (iv) NCQA’s Digital Content Services Resource Companion Guide and FHIR Implementation Guide; and (v) NCQA’s Command Line Tool for Digital Content Services. The Licensed NCQA Content expressly excludes all Third-Party Codes (defined below).
“Measures” shall mean the HEDIS measures and specifications for which Licensee has purchased access.
“Purpose” shall mean using the Licensed NCQA Content to assess digital readiness or develop and test Licensee’s CQL engine, including by developing functional test cases, but does not include the right to include the Measures or the Licensed NCQA Content in any commercial product. Use of the Measures or the Licensed NCQA Content in connection with a commercial product will require a separate commercial use license from NCQA.
“Third-Party Codes” shall mean the values contained in the HEDIS VSD which are owned, licensed or otherwise provided by third parties and protected under federal copyright laws.
2. HEDIS VSD:
The HEDIS VSD is published as part of HEDIS and contains Third-Party Codes, including without limitation CPT® by American Medical Association, LOINC® by Regenstrief Institute, Inc., SNOMED CT® by the International Health Terminology Standards Development Organisation, RxNorm by the U.S. National Library of Medicine and Uniform Billing Codes by the American Hospital Association. The HEDIS VSD is made available for customers that receive a license for HEDIS from NCQA. These Third-Party Codes may be protected under federal copyright laws and are included in HEDIS with the permission of the copyright owners. Nothing in this Agreement shall grant, or shall be deemed to grant, to Licensee a right or license to use, reproduce, distribute, incorporate or display the Third-Party Codes. All uses of such Third-Party Codes may require a license from the copyright owner, which Licensee acknowledges and agrees that it is solely responsible for obtaining directly from the copyright owners and that NCQA has no liability or responsibility for such Third-Party Codes or claims arising out of the use thereof by Licensee. Licensee agrees to defend, indemnify and hold harmless NCQA and its directors, officers, employees and agents from and against any and all liability, loss, cost, expense (including reasonable attorney fees), damage, or claim asserted by any third party alleged to arise out of or otherwise relate to Licensee’s use, reproduction, distribution, incorporation or display of the Third-Party Codes. In effectuating its obligations hereunder, Licensee shall not consent to the entry of a judgment or otherwise settle any claim against NCQA, in which NCQA shall be obligated to make any admission of fault, liability or wrongdoing or otherwise involve any prejudice of its interests without the prior written consent of NCQA, which shall not be unreasonably withheld, delayed or conditioned.
3. License Grant:
3.1 Limited License. Subject to the terms and conditions of this Agreement, NCQA grants Licensee a limited, non-exclusive, non-transferable license to use the Licensed NCQA Content in the United States during the term of this Agreement solely for the Purpose (the “License”). Licensee may not share any portion of the Licensed NCQA Content outside of Licensee for any purpose. The Licensed NCQA Content shall not be used to verify compliance with NCQA’s dQM Implementation Validation, and any results generated or otherwise developed from use of the Licensed NCQA Content are preliminary and do not constitute a decision from NCQA under NCQA’s dQM Implementation Validation program. The License does not include any use outside of the Purpose. Except as otherwise expressly permitted under this Agreement, Licensee may not display, use, distribute or copy the Licensed NCQA Content in any products or services for any purpose other than the Purpose.
3.2 Testing Results. Licensee may use data from its customers to test the Licensed NCQA Content (each a “Test Customer”). Licensee may share with the Test Customer the member or patient-level results and summary results generated while testing the Licensed NCQA Content using the Test Customer’s data, but Licensee and the Test Customer shall only use such measure results for evaluating Licensee’s CQL engine and shall not use such measure results for reporting or quality improvement. Licensee and the Test Customer must call the measure results “Unvalidated Digital HEDIS results” and shall not use any of the following terms to describe the measure results: “Certified Digital HEDIS,” “Validated Digital HEDIS,” “Validated Digital HEDIS results,” “Health Plan HEDIS Rates” or “HEDIS Rates.”
3.3 NCQA Audit Rights. Licensee shall provide NCQA with access to Licensee’s records upon request for the purpose of confirming Licensee’s compliance with this Agreement. Such audit shall be during normal business hours upon reasonable advance notice.
4. License Restrictions:
The License is limited subject to the following terms and conditions. Except as expressly authorized or provided for herein, Licensee shall:
(i) not use the Licensed NCQA Content or any portion thereof for any purpose other than as specifically set forth in this Agreement;
(ii) not use the Licensed NCQA Content or any part thereof for purposes of developing, using or providing competing quality measures or competing accreditation, recognition, evaluation, or certification programs;
(iii) store the Licensed NCQA Content in a secure information system to ensure it is not used or viewed by any third parties or employees of Licensee who do not have a need to use the Licensed NCQA Content for the Purpose;
(iv) not publicly display, disseminate or publish the Licensed NCQA Content, modifications or adjustments thereof or any portion of the same;
(v) not use the HEDIS VSD or any portion thereof without an authorized license from the copyright owners;
(vi) not authorize or permit any third-party or affiliate, subsidiary or related entity to use the Licensed NCQA Content or any portion thereof without NCQA's prior written consent; and
(vii) not modify, create derivative works from, reproduce, copy, reverse engineer, decompile or disassemble the Licensed NCQA Content or any portion thereof except as expressly authorized by this Agreement.
5. Ownership:
Title to and full ownership of the Licensed NCQA Content and all intellectual property rights therein (including, but not limited to, all copyrights, patent rights, and trade secret rights) belong to NCQA or NCQA has obtained the necessary rights in the Licensed NCQA Content (except as otherwise set forth regarding third party copyright ownership of portions of the HEDIS VSD) to grant the rights and licenses set forth herein. Sole ownership rights to the Licensed NCQA Content and any modifications, alterations or adjustments thereof reside with NCQA. NCQA’s name and logo, and all other names, logos, icons, trademarks, and/or service marks identifying NCQA and its programs, product(s) and services are proprietary trademarks of NCQA and any use not expressly provided for in this Agreement is strictly prohibited.
6. Disclaimer:
NCQA MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED NCQA CONTENT OR ANY OTHER INFORMATION OR MATERIALS DELIVERED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT THE LICENSED NCQA CONTENT ARE OR WILL BE FREE OF BUGS OR ERRORS. NCQA DISCLAIMS AND MAKES NO WARRANTY OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE LICENSED NCQA CONTENT. THE USE OF THE LICENSED NCQA CONTENT PERMITTED UNDER THIS AGREEMENT IS ENTIRELY AT LICENSEE’S OWN RISK AND NCQA SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
7. Limitation of Liability:
NCQA SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE OR INTERPRETATION OF THE LICENSED NCQA CONTENT OR HEDIS VSD, INCLUDING BUT NOT LIMITED TO THE IMPACT, PROVISION OR STANDARD OF MEDICAL CARE, WHETHER OR NOT NCQA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NCQA SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER OR NOT NCQA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NCQA’S LIABILITY EXCEED THE AMOUNT RECEIVED BY NCQA FOR THE LICENSED NCQA CONTENT UNDER THIS AGREEMENT.
THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NCQA AND LICENSEE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE PARTIES DISCLAIM THE APPLICABILITY OF THE UNIFORM COMMERCIAL CODE OR OTHER UNIFORM LAWS.
8. Indemnification:
Licensee shall indemnify and hold harmless NCQA and its directors, officers and employees from and against any and all liability, loss, cost, expense (including reasonable attorney fees), damage, or claim (“Losses”), including any Losses asserted by third parties, in proportion to, and to the extent the Losses arise from / or relate to the Licensee’s breach of this Agreement. With respect to any and all claims brought by a third party, NCQA shall promptly notify Licensee of such claim and NCQA shall have the right, at its sole discretion, to defend and control any action or proceeding with respect to such claim. In effectuating its obligations hereunder, the Licensee shall not consent to the entry of a judgment or otherwise settle any claim against NCQA, in which NCQA shall be obligated to make any admission of fault, liability or wrongdoing or otherwise involve any prejudice of its interests, without the prior written consent of NCQA, which shall not be unreasonably withheld, delayed or conditioned.
9. Term and Termination:
This Agreement shall be effective upon the Effective Date and shall continue for six (6) months, unless terminated earlier under the terms of this Section 10.
Upon a material breach of this Agreement by Licensee, NCQA may terminate this Agreement by giving Licensee written notice of the breach, identifying the action or inaction that is the basis of the breach, and advising of NCQA’s intent to terminate provided Licensee does not cure said breach within five (5) days after date of notice.
Termination of this Agreement is without prejudice to any other right or remedy of NCQA or Licensee. Upon termination or expiration of this Agreement, (i) all rights and licenses granted to Licensee under this Agreement and all other rights and obligations hereunder shall terminate; and (ii) Licensee shall cease use of the Licensed NCQA Content and any portion thereof and of any materials received from NCQA related to the Licensed NCQA Content.
10. Licensee Representation and Warranty:
Licensee represents and warrants to NCQA that this Agreement shall be binding on Licensee, and, unless Licensee is an individual, Licensee represents and warrants that this Agreement was executed by an authorized signatory of Licensee with the authority to enter into binding agreements on behalf of Licensee.
11. Breach:
Any material breach of this Agreement by Licensee may cause irreparable harm to NCQA and shall entitle NCQA to seek injunctive relief and all legal and equitable remedies available, including, but not limited to recovery of reasonable attorneys’ fees and termination of this Agreement.
12. Survival of Terms upon Termination:
The following sections shall survive termination of this Agreement: Sections 2, 3.3, 5, 6, 7, 8, 9, 11, 12, 13, 14, and 16.
13. Notice:
All questions, comments or notices concerning this Agreement shall be submitted to NCQA by Licensee via email at my.NCQA.org or via mail at NCQA, Attention: Information Products, 1100 13th Street NW, Third Floor, Washington, DC 20005. All notices to be given under this Agreement to Licensee shall be submitted by NCQA via e-mail at the account Licensee provided to NCQA.
14. Assignment:
Neither Party shall assign or otherwise delegate this Agreement or any rights, duties and/or obligations hereunder without the prior written consent of the other Party. The obligations of both Parties shall not terminate upon any assignment or delegation attempted without such prior written consent. The License is not transferable from Licensee to any other person, entity, organization or association.
15. No Third-Party Beneficiary Rights:
This Agreement is not intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
16. Miscellaneous:
This Agreement represents the complete agreement between the Parties concerning its subject matter and shall supersede all other agreements, whether written or oral, with respect to such subject matter, other than any nondisclosure or similar agreement, which shall remain in full force and effect. Failure to insist on strict performance of any term of this Agreement will not operate as a waiver of any subsequent default or failure of performance. No amendment, other modification or waiver of any term of this Agreement will be valid unless in writing signed by both parties. If any portion of this Agreement is determined by a court of competent jurisdiction or any appropriate legislature or governmental agency to be wholly or partially unenforceable, for any reason, such term shall be deemed to be modified to the minimum extent necessary to comply with such law, ruling or regulation, and the remainder of this Agreement shall not be affected thereby. This Agreement is deemed to be made under and shall be interpreted in accordance with the laws of the District of Columbia, without regard to its conflict of law principles. The section headings contained in this Agreement are included for reference only and shall not affect the construction or interpretation of any term in this Agreement.
To ACCEPT this License Agreement, click the accompanying checkbox/button to accept the terms of this product, which will create a legal contract that will bind Licensee and NCQA.
To DECLINE this License Agreement, do not proceed and contact My NCQA with any questions or concerns or request for a custom license agreement to meet your needs.
