HEDIS VOLUME 2 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 HEDIS Volume 2 (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 non-profit 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 plan quality information and the survey specifications for the Consumer Assessment of Healthcare Providers and Systems ("CAHPS®");
WHEREAS, NCQA publishes HEDIS Volume 2: Technical Specifications for Health Plans ("HEDIS Volume 2") that includes the HEDIS Value Set Directory ("HEDIS VSD") that crosswalks HEDIS to third party medical and billing codes;
WHEREAS, HEDIS Volume 2 also includes the Rules for Allowable Adjustments of HEDIS (the "Rules"), that prescribes guidelines for adjusting NCQA's HEDIS measures and specifications;
WHEREAS, Licensee desires to use HEDIS Volume 2; and
WHEREAS, NCQA desires to provide Licensee with a license to use HEDIS Volume 2 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:
1.1 "Licensed Measure Specifications" shall mean NCQA's HEDIS measures and specifications and HEDIS CAHPS survey measures and specifications detailed in HEDIS Volume 2 (including the Rules), subject to payment of any related fees. HEDIS Volume 2 and the Licensed Measure Specifications expressly exclude all third-party code values contained in the HEDIS VSD which are owned, licensed or otherwise provided by third parties and protected under federal copyright laws ("Third-Party Codes").
1.2 "Marks" means the NCQA trademarks and/or service marks related to the Licensed Measure Specifications described in Section 5.
2. HEDIS VSD:
The HEDIS VSD is published as part of HEDIS Volume 2 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 purchase a license for HEDIS Volume 2 from NCQA. These Third-Party Codes may be protected under federal copyright laws and are included in HEDIS Volume 2 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:
Subject to the terms and conditions of this Agreement, NCQA grants Licensee a personal, limited, non-exclusive, non-transferable license in the United States to use HEDIS Volume 2 during the term of this Agreement solely for internal, non-commercial purposes in accordance with the terms of this Agreement (the "License"). HEDIS Volume 2 is licensed for the number of Licensed Users for which a Licensee has paid the applicable fee. "Licensed Users" mean Licensee's employees who may access and use HEDIS Volume 2 on behalf of the Licensee. A Licensed User must be using HEDIS Volume 2 under the License and solely on behalf of the Licensee. A Licensed User may not be an agent or consultant of a Licensee. Unauthorized internal distribution of HEDIS Volume 2 and materials therein - beyond the number of Licensed Users by your organization - is prohibited. Anyone desiring broader internal distribution of HEDIS Volume 2 must purchase additional Licensed User permissions via the NCQA Store.
The License is not transferable from Licensee to any other person, entity, organization or association. Except for authorized Licensed Users, each person, entity, organization or association, including agents and consultants of the Licensee, is required to separately purchase a license to obtain and access HEDIS Volume 2.
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) only adjust the Licensed Measure Specifications, or any portion thereof, as permitted by the Rules;
(ii) not delete or in any manner alter any notices, disclaimers or other legends contained in HEDIS Volume 2 or appearing on any screens, documents or other materials obtained through use of HEDIS Volume 2;
(iii) prominently display language as displayed in Section 17 when adjusting the Licensed Measure Specifications as permitted by the Rules;
(iv) not use HEDIS Volume 2 (including the Licensed Measure Specifications) or any portion thereof for any purpose other than as specifically set forth in this Agreement;
(v) not publicly display, disseminate or publish the HEDIS Volume 2 (including the Licensed Measure Specifications), modifications or adjustments thereof or any portion of the same;
(vi) not use the HEDIS VSD or any portion thereof without an authorized license from the copyright owners;
(vii) not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through access and/or use of HEDIS Volume 2;
(viii) not transmit HEDSI Volume 2 electronically or allow access to HEDIS Volume 2 over a network or a public computer-based information system which permits access to a greater number of users than licensed by Licensee;
(ix) not authorize or permit any third-party or affiliate, subsidiary or related entity to use HEDIS Volume 2 (including the Licensed Measure Specifications) or any portion thereof without NCQA's prior written consent;
(x) not identify records or calculate or display any calculated measurement (HEDIS measure result) stemming from the Licensed Measure Specifications;
(xi) not reproduce, copy, reverse engineer, decompile or disassemble the Licensed Measure Specifications or prepare derivative works from the Licensed Measure Specifications or any portion thereof t (except that Licensee may make one [1] copy for each Licensed User for which Licensee has purchased a license to use HEDIS Volume 2); and
(xii) not ship, transmit, transfer or export Volume 2 (including the Licensed Measure Specifications) or any portion thereof outside of the U.S. or to clients or other end-users primarily located outside of the U.S.
Prohibited Use Acknowledgement
An organization's Licensed Users may use HEDIS Volume 2 solely for a personal non-commercial purpose without obtaining NCQA approval. All other uses, including a commercial use (including but not limited to vendors or consultants using or embedding the measures and specifications and/or HEDIS VSD into any product or service to calculate measure results or provide any measure-related service to customers for any purpose) and/or any internal or external reproduction, distribution or publication (including but not limited to federal and state entities using or incorporating the measures into their programs) must be approved by NCQA and are subject to a license at the discretion of NCQA.
Anyone contemplating a use beyond a personal, non-commercial use, including but not limited to a commercial use, internal or external reproduction, distribution or publication of any part of a product or use of a product to identify records or calculate HEDIS measure results, must contact the NCQA licensing team by submitting a request through https://my.ncqa.org to discuss the need for a license.
Licensee agrees and understands that any score or numeric result calculated from access and use of HEDIS Volume 2 does not constitute a preliminary or final score and does not predict achievement of accreditation, certification or recognition, as applicable. Any use of HEDIS Volume 2 to identify records or calculate HEDIS measure results, for example, requires a custom license and may necessitate certification pursuant to NCQA's Measure Certification Program. The following activities are expressly prohibited in connection with the use of HEDIS Volume 2 under this Agreement:
1. No individual or entity may use HEDIS Volume 2 to evaluate another organization against NCQA standards, except as part of Licensee's internal preparation for an NCQA survey or review.
2. Licensee may not allow a third party to view or use HEDIS Volume 2.
Licensee agrees to maintain HEDIS Volume 2 in strict confidence and abide by all terms and conditions of this Agreement.
5. NCQA Marks License:
NCQA hereby grants to Licensee a non-exclusive, non-transferable license and right to display the below Marks solely in connection with the Licensed Measure Specifications as expressly permitted under this Agreement. Licensee may use NCQA's registered trademark "HEDIS" only when describing the Licensed Measure Specifications as permitted under this Agreement, and to refer to the HEDIS measure specifications for the relevant year. Licensee agrees that it will not seek to register any of NCQA's Marks or other indicia consisting of or incorporating any element of the Marks, or variations thereof, in any jurisdictions. Use of the Marks shall inure to the benefit of NCQA.
HEDIS®
The Healthcare Effectiveness Data and Information Set (HEDIS®) is a registered trademark of NCQA.
CAHPS®
CAHPS® is a registered trademark of the Agency for Healthcare Research and Quality (AHRQ).
6. Ownership:
Title to and full ownership of the Licensed Measure Specifications (and adjustments thereto) 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 Measure Specifications (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 Measure Specifications 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.
7. Warranty and Disclaimer:
NCQA warrants that the media on which HEDIS Volume 2 is furnished will be free of defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase. In the event NCQA receives notification within the warranty period of any defects in the media, NCQA will, at its option, either replace such defective media or return to Licensee the price paid for HEDIS Volume 2.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AS RELATED TO HEDIS VOLUME 2 OR INFORMATION THEREIN, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF HEDIS VOLUME 2 IS WITH THE LICENSEE. LICENSEE IS RESPONSIBLE FOR PROCURING ALL EQUIPMENT AND SOFTWARE REQUIRED IN CONNECTION WITH THE USE OF HEDIS VOLUME 2.
NCQA MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED MEASURE SPECIFICATIONS OR ANY OTHER INFORMATION OR MATERIALS DELIVERED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND NCQA DISCLAIMS AND MAKES NO WARRANTY OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE LICENSED MEASURE SPECIFICATIONS. THE USE OF THE LICENSED MEASURE SPECIFICATIONS IS ENTIRELY AT LICENSEE'S OWN RISK AND NCQA SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
8. Limitation of Liability:
NCQA SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE OR INTERPRETATION OF THE LICENSED MEASURE SPECIFICATIONS 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.
THE LIABILITY OF EITHER PARTY TO THE OTHER PARTY ARISING UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR OTHERWISE SHALL BE LIMITED TO ACTUAL AND DIRECT DAMAGES. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL NCQA'S TOTAL LIABILITY FOR ANY DIRECT DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO HEDIS VOLUME 2 OR ANY PART THEREOF, OR THIS AGREEMENT, EXCEED THE PRICE PAID FOR HEDIS VOLUME 2, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT OR OTHERWISE.
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.
9. 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, Licensee shall promptly notify NCQA of such claim and the Licensee 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.
10. Termination:
NCQA may terminate this Agreement at any time and without notice if Licensee violates any of the terms and conditions hereof. Upon termination of this Agreement, all rights under this Agreement, including the License, will cease. Upon termination, Licensee agrees to immediately return to NCQA or destroy, at NCQA's option, all copies of HEDIS Volume 2, together with any back-up copy, modifications and any merged portions, in any form, in Licensee's possession.
11. 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.
12. Breach and Audit:
Any breach of this Agreement by Licensee may cause irreparable harm to NCQA for which no adequate remedy at law exists and may subject Licensee to injunctive relief and all legal and equitable remedies available to NCQA, including, but not limited to, recovery of all costs and expenses, including reasonable attorney's fees incurred because of any such legal action. Noncompliance may also disqualify Licensee from receiving future goods and services from NCQA.
To verify compliance with this Agreement, NCQA is granted the right, with prior notice and during normal business hours, to examine all relevant records of Licensee. Relevant records as used in this paragraph shall include all computer systems; software products; and print and electronic books and records.
13. Survival of Terms upon Termination:
The following sections shall survive termination of this Agreement: Sections 2, 6, 7, 8, 9, 10, 11, 12 and 18.
14. 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.
15. 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. Except for authorized Licensed Users, each person, entity, organization or association, including agents and consultants of the Licensee, is required to separately purchase a license to obtain and access HEDIS Volume 2.
16. 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.
17. Copyright Notice Required:
HEDIS Volume 2 contains proprietary and copyrighted information and notice to that effect must appear on all authorized copies of HEDIS Volume 2 (including the Licensed Measure Specifications) made by Licensee under this Agreement.
Also, Licensee must prominently display the following notice near each adjusted Licensed Measure Specification using the Rules, or display as a footnote on each page in which an adjustment Licensed Measure Specification exists:
The NCQA HEDIS measure specification has been adjusted pursuant to NCQA's Rules for Allowable Adjustments of HEDIS. The adjusted measure specification may be used only for internal quality improvement purposes.
18. 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.
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