NCQA QUALITY COMPASS® EXCHANGE DATA FILE LICENSE AGREEMENT
This License Agreement, along with all materials referenced herein (“Agreement”), is a legal agreement between the Licensee and the National Committee for Quality Assurance (“NCQA”), to permit Licensee, through its Licensed Users, to access and use, subject to the terms of this Agreement, NCQA’s product identified in this Agreement and accompanying documentation provided electronically.
“Licensee” means only the legal entity or organization whose authorized acceptance appears below as evidence of agreement to these terms. “Licensed Users” means the individuals who shall be eligible to access and use the Licensed Data (defined below) on behalf of the Licensee, as further described in Section 4, below.
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.
1. Licensed Data.
The product is the Quality Compass® Exchange Data File which encompasses the data Licensee is provided access to via the NCQA Download Center and any updates to a given version licensed by NCQA, whether in electronic copy or hard copy under this Agreement (the “Licensed Data”). Quality Compass is updated annually. Licensee may need additional software to use the Licensed Data, and NCQA is not responsible for such additional software.
The Licensed Data contains audited performance results from individual Healthcare Effectiveness Data and Information Set (“HEDIS”®) measures, including submitted health plan rates, with State, Regional and National HEDIS benchmarks (averages and percentiles).
The Licensed Data also includes limited audited performance results from individual Pharmacy Quality Alliance measures, including submitted health plan rates, with State, Regional and National benchmarks (averages and percentiles), all of which are publicly available at https://www.cms.gov.
Each measure may comprise a number of individual indicators (the “Measure Indicators”). For example, the Comprehensive Diabetes Care measure currently includes five individual Measure Indicators (Comprehensive Diabetes Care – Eye Exams is equivalent to one Measure Indicator).
2. License Grant and Restrictions.
Subject to the terms of this Agreement, NCQA hereby grants Licensee and its Licensed Users a personal, nonexclusive, nontransferable license to access and use the Licensed Data or any portion thereof, in accordance with this Agreement (“License”) as follows: competitor analysis; benchmark analysis; trended data analysis; quality improvement initiatives; data analysis; cost analysis; analysis of performance from year to year; profiling performance goals and surveillance; custom reporting; market research; and/or marketing/ advertising plan performance.
Nothing in this Agreement grants to Licensee any rights to transfer the License to or use of the Licensed Data by or on behalf of any other person, entity, organization or association, including, without limitation, any parent, subsidiary, affiliate, shareholder, partner, member or related entity of Licensee. Except for authorized Licensed Users, each person, entity, organization or association, parent, subsidiary, affiliate or related entity is required to separately contract and register with NCQA to obtain and access the Licensed Data. Licensee shall abide by the following limitations and restrictions on the License:
(A) For each year of access to the Licensed Data under this Agreement, Licensee may share/publish data (internally or externally, whether in single or multiple publications/reports) for up to 15 individual Measure Indicators contained in the Licensed Data.
(1) Licensee may share/publish (internally or externally, whether in single or multiple publications/reports) no more than 2 benchmarks for each selected Measure Indicator.
(2) Licensee may share/publish (internally or externally, whether in single or multiple publications/reports) up to 20 health plan product rates for each selected Measure Indicator.
(3) Inclusion of additional Measure Indicators, benchmarks or health plan product rates requires written approval of NCQA, which may be subject to fee assessment and require a separate license agreement.
(B) Licensee may compare an individual health plan’s Measure Indicators to another health plan’s Measure Indicators in the same geographic market, or to several health plans’ Measure Indicators in the same geographic market, provided that an average or percentile appears in the comparison (national, regional, state) for the particular Measure Indicator(s).
(C) Licensee agrees to comply with any guidelines for publication, advertising, marketing or use of the Licensed Data that may be issued by NCQA from time to time and posted on www.NCQA.org.
(D) Except as otherwise expressly permitted under this Agreement, Licensee may not itself or permit any third party to:
(1) Reproduce, republish, transmit, post, distribute, sublicense, rent, lease or copy the Licensed Data in any format, including, but not limited to, other print or electronic publication service or product;
(2) decompile, disassemble, analyze or otherwise examine the Licensed Data for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law);
(3) delete or in any manner alter any copyright or trademark notices, disclaimers or other legends contained in the Licensed Data or appearing on any screens, documents or other materials obtained by Licensee through use of the Licensed Data;
(4) provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the Licensed Data;
(5) modify or prepare derivative works from the Licensed Data;
(6) ship, transmit, transfer, or export the Licensed Data outside the U.S.; or
(7) transmit the Licensed Data electronically or allow access to the Licensed Data over a network or a public computer-based information system that permits access to a greater number of users than licensed by Licensee.
(E) Licensee agrees to abide by all applicable local, state, national and international laws and regulations.
3. Licensed Data Updates.
Any updates or modifications of the Licensed Data provided or made available to Licensee by NCQA shall be considered part of Licensed Data and subject to this Agreement. NCQA may, at any time and for any reason, elect to modify, discontinue, delete or restrict any aspect of the Licensed Data without notice to Licensee or any liability to NCQA or any NCQA Party (as defined in Section 7); however, NCQA agrees to make commercially reasonable efforts to provide Licensee with prior notice of any such changes.
4. Registered and Licensed Users.
For Licensee to access and use the Licensed Data, Licensee shall register with NCQA and provide NCQA with an email address. An authorized user is an employee of Licensee that accesses and uses the Licensed Data under the License solely on behalf of Licensee (each individual a “User” and collectively referred to as the “Licensed Users”). The Fee (defined in Section 5) is nonrefundable upon delivery of the Licensed Data. Licensed Users may only use and access the Licensed Data for Licensee’s business purposes, pursuant to Section 2, above, and may not access or use the Licensed Data for any other purpose or for any other person or entity that is not the Licensee. Licensee is responsible and wholly liable for all acts or omissions committed by Licensed Users. The sharing, transferring or dissemination of the Licensed Data with unauthorized persons is a material breach of this Agreement and a violation of the License. For avoidance of doubt, employees and agents of Licensee’s parent, subsidiaries, affiliates, shareholders, partners, members or any other person or entity are unauthorized users.
Licensee shall pay the license fee (“Fee”) for accessing the Licensed Data. The Fee shall be determined at the time of registration and is nonrefundable upon delivery of the Licensed Data.
6. Ownership, Copyright and Disclosure.
Title to and full ownership of the Licensed Data and all intellectual property rights therein (including, but not limited to, all copyrights, patent rights, database rights, trade secret rights) belong to NCQA, or NCQA has obtained the necessary rights in the Data to grant the rights and licenses set forth herein. This Agreement shall not be interpreted to grant Licensee any ownership right in the Licensed Data, or any modification or portion thereof. NCQA’s name and logo, and all other names, logos, icons, trademarks and/or service marks identifying NCQA and its programs, products and services, are proprietary trademarks of NCQA and any use not expressly provided for in this Agreement is strictly prohibited.
Licensee must include the following statement when displaying the Licensed Data (benchmarks and/or rates) under the terms of this Agreement in any publication (external or internal):
The source for certain health plan measure rates and benchmark (averages and percentiles) data (“the Data”) is Quality Compass® [current year] and is used with the permission of the National Committee for Quality Assurance (“NCQA”). Any analysis, interpretation or conclusion based on the Data is solely that of the authors, and NCQA specifically disclaims responsibility for any such analysis, interpretation or conclusion. Quality Compass is a registered trademark of NCQA.
The Data comprises audited performance rates and associated benchmarks for Healthcare Effectiveness Data and Information Set measures (“HEDIS®”). HEDIS measures and specifications were developed by and are owned by NCQA. HEDIS measures and specifications are not clinical guidelines and do not establish standards of medical care. NCQA makes no representations, warranties or endorsement about the quality of any organization or clinician who uses or reports performance measures, or any data or rates calculated using HEDIS measures and specifications, and NCQA has no liability to anyone who relies on such measures or specifications.
The Data also includes publicly available limited audited performance results from Pharmacy Quality Alliance measures, which may be found at cms.gov.
NCQA holds a copyright in Quality Compass and the Data, or NCQA has obtained the necessary rights in the Data, and may rescind or alter the Data at any time. The Data may not be modified by anyone other than NCQA. Anyone desiring to use or reproduce the Data without modification for an internal, noncommercial purpose may do so without obtaining approval from NCQA. All other uses, including a commercial use and/or external reproduction, distribution or publication, must be approved by NCQA and are subject to a license at the discretion of NCQA. ©[applicable year] National Committee for Quality Assurance, all rights reserved.
Except as otherwise expressly provided in this Agreement, (a) the Licensed Data is provided “as is” and, to the maximum extent permitted by applicable law, NCQA and its directors, officers, licensors, subcontractors and agents (“NCQA Parties”) disclaim all warranties of any kind, express or implied, regarding the Licensed Data or otherwise relating to this Agreement, including warranties of fitness for a particular purpose, merchantability, noninfringement and accuracy; (b) neither NCQA nor any NCQA party warrants that the Licensed Data is or will be accurate, complete, uninterrupted, without error or free of viruses, worms, other harmful components or other program limitations; (c) Licensee assumes the entire cost of all necessary servicing, repair or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of NCQA’s gross negligence or willful misconduct; (d) each of NCQA and the NCQA Parties disclaim and make no warranties or representations as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness or effectiveness of the reports, data, scores, results or other information obtained, generated or otherwise received by Licensee from accessing and/or using the Licensed Data or otherwise resulting from this Agreement; and (e) use of the Licensed Data is entirely at Licensee’s own risk and NCQA and each NCQA Party shall have no liability or responsibility therefor.
8. Trade Names and Trademarks.
This Agreement does not grant to any party a license to use any trademark, trade name or logo of the other party, and each party recognizes that the trademarks, trade names and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party’s trademarks, trade names or logos, except as expressly permitted by this Agreement.
9. Injunctive Relief.
Each party acknowledges that a violation of Sections 2, 6 or 8 of this Agreement would cause irreparable harm to the other party for which no adequate remedy at law exists, and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 2, 6 or 8. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorney’s fees incurred because of any such legal action.
10. Limitation of Liability.
The total liability of NCQA, and the NCQA Parties in the aggregate, to Licensee or any third party arising out of or in connection with this Agreement or the Licensed Data will be limited to the payments received from Licensee under this Agreement. NCQA and the NCQA Parties shall not be liable for direct, indirect, special, incidental, consequential or punitive damages of any type arising out of or in connection with this Agreement or the use of the Licensed Data, whether or not NCQA and its licensors have been advised of the possibility of such damages and whether based upon breach of contract or tort (including negligence). NCQA and the NCQA Parties shall have no liability for any damages resulting from use or interpretation of the Licensed Data, whether or not NCQA and the NCQA Parties have been advised of the possibility of such damages.
The limitations of damages and liabilities set forth in this Agreement are fundamental elements of the basis of the bargain between NCQA and Licensee, and the pricing for the license reflects such limitations. Because some states or jurisdictions do not allow the exclusion or limitation of liability for damages (such as consequential or incidental damages) or the exclusion of implied warranties and limitations on how long an implied warranty may last, the above limitations may not apply to Licensee.
Licensee agrees to defend, indemnify and hold NCQA and each NCQA Party harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonable attorneys’ fees and court costs) arising or resulting from Licensee’s breach of any term of this Agreement or caused by acts or omissions performed by Licensed Users.
If any portion of this Agreement is determined by a court of competent jurisdiction or any appropriate legislature to be wholly or partially unenforceable for any reason, such unenforceability shall not affect the balance hereof.
Licensee’s right to use the Licensed Data shall be effective from the date Licensee accepts this Agreement by clicking “Accept” below and shall terminate when Licensee ceases all access and use of the Licensed Data and provides NCQA with notice of such termination or as otherwise provided in this Agreement. NCQA may terminate this Agreement immediately if Licensee breaches a material term of this Agreement and fails to remedy that breach within 5 business days after notice from NCQA.
Upon termination of this Agreement, all rights under this Agreement granted to Licensee, including the License, will cease. Upon termination of this Agreement, Sections 6, 7, 8, 9, 10, 11, 13 and 15(C) of the Agreement, along with all payment obligations under this Agreement, shall survive such termination.
14. Electronic Agreement/Notices.
(A) Notices. 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 to Licensee under this Agreement shall be submitted by NCQA via email at the account Licensee provided to NCQA pursuant to Section 4 or to Licensee upon accessing the Licensed Data.
(B) Acceptance. By clicking agreement to the terms of this Agreement and providing NCQA with Licensee’s email address under Section 4, Licensee agrees and consents to (i) contract electronically with NCQA for the Licensed Data in accordance with this Agreement; (ii) receipt of electronic legal notices regarding this Agreement to the email account Licensee provided under Section 4 or upon accessing the Licensed Data; and that by clicking agreement to the terms of this Agreement, Licensee intends to be bound by this Agreement.
(C) Agreement. In order to access, download, and print this Agreement, Licensee should click on the link for the .PDF file version of this Agreement. Licensee may also request to receive a copy of this Agreement by U.S. mail, free of charge, by giving notice to NCQA of such request within 45 days after entering into this Agreement.
(A) Modifications. This Agreement is the complete and exclusive statement of the agreement between Licensee and NCQA, and supersedes anyproposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. This Agreement may not be modified by Licensee except upon mutual agreement by the parties in writing and signed by an authorized representative of NCQA. NCQA reserves the right to change the terms of this Agreement at any time by providing Licensee with notice of such changes. Any use of the Licensed Data by Licensee after NCQA’s publication or email of any such changes shall constitute Licensee’s acceptance of the Agreement as modified. Preprinted or stamped terms or conditions in Licensee invoices, Purchase Orders or forms are void and invalid, and shall not modify, waive, condition or qualify any provision(s) of this Agreement.
(B) Force Majeure. NCQA will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
(C) Governing Law and General Provisions. This Agreement will be governed by the laws of the District of Columbia, excluding the application of its conflicts of laws rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. The words “and” as well as “or” shall be interchangeable to provide the broadest interpretation, and the word “including” shall mean “including without limitation” and “including, but not limited to,” to provide the broadest interpretation. The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. NCQA’s failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.
(D) Third-Party Beneficiaries. Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect to NCQA Parties who shall be deemed third-party beneficiaries under this Agreement, but solely with respect to terms that specifically reference an NCQA Party or the NCQA Parties.
(E) 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.
(F) Cancellation. In the event Licensee chooses to remit payment, where applicable, for the Licensed Data at a later date (via mailed check or otherwise), NCQA reserves the right to cancel Licensee’s order if NCQA fails to receive payment for the Licensed Data within 30 days of acceptance of this Agreement. Licensee will not be granted access or use of the Licensed Data (or it will be rescinded), and all Agreements related to the order and Licensed Data will be rendered null and void.
To ACCEPT this 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.
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