NCQA RECOGNITION PROGRAM ACCESS 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, the licensed data identified in this Agreement and accompanying documentation provided electronically (the “Licensed Data”). “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 on behalf of the Licensee, as further described in Section 3 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 “Licensed Data” is the List of Recognized Providers for one or more of the NCQA Recognition Programs, as selected by Licensee, and any updates to Recognized Providers to a given version licensed by NCQA, whether in in electronic copy or hard copy. Licensee may license a one-time extract without any updates or may license access for 12 months, with data being refreshed by NCQA at regularly scheduled intervals. Licensee may need additional software to use the Licensed Data, and NCQA is not responsible for such additional software.
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, for the purpose of identifying providers Recognized under one or more of the NCQA Recognition Programs, as part of a provider directory or other provider listing, or for the purpose of determining provider incentive payments or other network programs, quality improvement initiatives or data analysis (the “License”). As a condition of the License, Licensee will not represent that NCQA is involved in any quality improvement initiatives or data analysis project other than for the purpose of providing the Licensed Data, and will not represent that NCQA has participated in, reviewed or approved of the analysis done or any incentives awarded from use of the Licensed Data.
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) Licensee agrees to comply with any guidelines for publication, advertising or use of the Licensed Data that may be issued by NCQA from time to time and posted on www.NCQA.org.
(B) Licensee shall use reasonable efforts to match the Licensed Data to providers so that only Recognized Providers in the data feed will be denoted as such in any use or display of the Licensed Data or information affected by analysis of the Licensed Data.
(C) An NCQA Recognition Seal will only be placed next to Recognized Providers who are individually listed in the data feed, and next to the practice name, for practice-only Recognitions, in any use or display of the Licensed Data or information affected by the analysis of the Licensed Data.
(D) Licensee will display the appropriate Recognition icon, based on a given provider’s Recognition status, in a legible manner.
(E) Licensee will not delete or in manner alter or remove any copyright notices, patent notices, trademark and service mark notices or other proprietary notices or disclaimers affixed to the Licensed Data, or any portion thereof.
(F) Licensee will not represent that NCQA is involved in any quality improvement initiatives or data analysis project other than for the purpose of providing the Licensed Data, and will not represent that NCQA has participated in, reviewed or approved of the analysis done or any incentives awarded from the use of the Licensed Data.
(G) Licensee will identify NCQA as the source of the Licensed Data, using the attribution language in Section 4 or a link from the appropriate NCQA Recognition icon to an appropriate NCQA program description previously approved by NCQA.
(H) Except as otherwise expressly permitted under this Agreement, Licensee may not itself or permit others to:
(1) republish, transmit, post, copy, distribute, sublicense, rent, lease, reproduce or republish the Licensed Data in any format, including, but not limited to, other print or electronic publication services or products;
(2) 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;
(3) 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;
(4) 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);
(5) ship, transmit, transfer, or export the Licensed Data or any data therein outside the U.S; or
(6) modify or prepare derivative works from the Licensed Data.
(I) Licensee agrees to abide by all applicable local, state, national and international laws and regulations.
3. 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 Licensed User is an employee of Licensee that accesses and uses the Licensed Data under the License and solely on behalf of the Licensee (collectively referred to as the “Licensed Users”). 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 or 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.
5. 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. 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 using the Licensed Data as described herein (no external publication or distribution of the Licensed Data, or any portion thereof, is permitted):
“The clinicians identified herein have been recognized under the National Committee for Quality Assurance’s (NCQA) [insert title of the selected program(s): * Heart/Stroke Recognition Program (HSRP), Diabetes Recognition Program (DRP), Patient-Centered Medical Home (PCMH), Patient-Centered Connected Care™, Patient-Centered Specialty Practice™ (PCSP™), School-Based Medical Home (SBMH) and/or Oncology Medical Home]. NCQA Recognition is not a guarantee that individual medical care delivered by a clinician or practice will meet a certain standard of care. NCQA makes no representations, warranties or endorsement about the quality of any clinician or practice that may have achieved Recognition.”
*Consult with NCQA on the correct title of programs that may be added during the term of this Agreement.
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, including the award of incentives based on the Licensed Data, is entirely at Licensee’s own risk, and NCQA and each NCQA Party shall have no liability or responsibility therefor.
7. 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.
8. Injunctive Relief.
Each party acknowledges that a violation of Sections 2, 5 or 7 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, 5 or 7. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorney’s fees incurred because of any such legal action.
9. 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 the NCQA Parties 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.
12. Electronic Agreement/Notices.
(A) Notices. All questions, comments or notices concerning this Agreement shall be submitted to NCQA by Licensee via 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 3.
(B) Acceptance. By clicking agreement to the terms of this Agreement providing NCQA with Licensee’s email address under Section 3, 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 3 or upon accessing the Licensed Data; and (iii) that by clicking agreement to the terms of this Agreement, Licensee intends to be bound by this Agreement.
13. Term and Termination.
Licensee’s right to use the Licensed Data shall be effective from the date Licensee accepts this Agreement 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. Either party may terminate this Agreement for any reason upon 30 days written notice to the other party.
14. Effect of Termination.
Upon termination of this Agreement, (i) all rights and licenses granted to Licensee under this Agreement, and all other rights and obligations hereunder, shall terminate, except as otherwise provided for in this Agreement; (ii) Licensee shall immediately cease use of the Licensed Data and any portion thereof; and (iii) Licensee shall immediately cease use of any NCQA trademark, trade name or other identifying mark, logo or icon. Sections 5, 6, 8, 9, 10, 12, 14 and 15(B) of the Agreement, along with all payment obligations under this Agreement, shall survive such termination.
(A) Modifications. This Agreement is the complete and exclusive statement of the agreement between Licensee and NCQA and supersedes any proposal or prior oral agreement 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, 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) 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 law 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.
(C) 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.
(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 those 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.
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