Data Collection Agreement

DATA COLLECTION AGREEMENT

This Data Collection Agreement (“Agreement”) is entered into as of the date of your acceptance of these terms and conditions (“Effective Date”). This Agreement is made by and between MGMA-ACMPE, a Colorado nonprofit corporation, (“MGMA”), and the “Participant” organization connected with the user account for this submission of Participant Data (defined below). MGMA and the Participant sometimes are referred to in this Agreement collectively as the “Parties” and each individually as a “Party.” Participant may also sometimes be referred to in this Agreement as “You” and “Your.”

This Agreement includes and incorporates the General Terms and Conditions seen below and MGMA’s Privacy Policy found at https://mgma.com/privacy-policy or such other webpage address as MGMA provides Participant from time to time.

PLEASE READ THESE TERMS CAREFULLY BEFORE SUBMITTING THE PARTICIPANT DATA.  BY SUBMITTING PARTICIPANT DATA, (I) PARTICIPANT EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY THE AGREEMENT; (II) YOU REPRESENT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION; AND (III) YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT. SHOULD PARTICIPANT NOT ACKNOWLEDGE AND AGREE TO THIS AGREEMENT, PARTICIPANT MUST IMMEDIATELY DISCONTINUE THE PARTICIPANT DATA SUBMISSION PROCESS.

General Terms and Conditions

1. Purpose. The purpose of this Agreement is for Participant to submit Participant Data to MGMA for MGMA’s use in its Surveys. “Data” means all proprietary data and materials made available by a Party, including but not limited to employee data, statistical tables, reports, summaries, research findings, aggregations, calculations, data analysis, and formulas, and all other information and materials made accessible or provided by a Party, whether digital, electronic, written or physical copies including offline resources. "Participant Data” means, other than Aggregated Data, the data and information that is submitted, uploaded or otherwise transmitted by Participant to MGMA under this Agreement. Data Submissions may be in a variety of file formats (e.g., .txt, .csv, .xlsx), including a file format mutually agreed upon by Participant and MGMA or reasonably designated by MGMA through the means of submission established by MGMA. “Aggregated Data” means Data such as Participant’s employees’ pay, job titles, and performance ratings collected from participants (including Participant) and aggregated by or on behalf of MGMA. “Survey” means any survey of data and information selected, coordinated and arranged by MGMA as a compilation in connection with medical practice management industry.  
2. License, Term, and Scope.
   1. Grant by Participant. Except if and as limited by applicable privacy laws affecting Personal Information, Participant grants to MGMA a perpetual, irrevocable, worldwide, sublicensable, and transferable license and right to host, access, process, display, copy, transmit, modify, create derivative works of, and otherwise use Participant Data to: (i) fulfill its obligations to Participant under this Agreement; (ii) maintain, evaluate, secure, develop, or improve its Surveys; (iii) use, offer for sale, sell, license, distribute, publish or otherwise make available its Surveys so long as all such usage is (A) Deidentified so that it does not identify Participant or any other person and (B) Aggregated with data across other participants; and (C) in MGMA’s discretion, respond to and resolve Participant’s request for customer support. “Personal Information” or “Personal Data” means any information that is processed by MGMA on behalf of the Participant in connection with the Participant Data and which identifies, relates to, describes, is capable of being associated with, or reasonably could be linked, directly or indirectly, with a particular person as a matter of law pursuant to applicable data privacy laws; including, without limitation, a person’s name, email address, phone number, identification number, account number, geolocation data, IP Address, behavioral analytic data, cookies, browsing history, credit card number, debit card number, credit score, online identifier, financial information, or subscription information. Unless otherwise provided by applicable data privacy laws, “Personal Information” does not include (1) Aggregate Personal Information, or (2) Deidentified Personal Information. “Aggregate Personal Information” means information that relates to a group or category of Identified or Identifiable Persons, from which individual Identified or Identifiable Persons’ identities have been removed, that is not linked or reasonably linkable to any Identified or Identifiable Person, consumer, or household, including via a device. For clarity, “Aggregate Personal Information” does not mean one or more individual consumer records that have been Deidentified. “Identified or Identifiable Person” or “Data Subject” means an individual natural person who can be identified, directly or indirectly, as a matter of law pursuant to applicable data privacy laws, by reference to such person’s Personal Information (as defined by applicable data privacy laws). “Deidentified Personal Information” means information that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular Identified or Identifiable Person, provided that any additional requirements under applicable data privacy laws are met with regard to such Deidentified Personal Information.  “Deidentified” means the processes applied to Personal Information in order to render it Deidentified Personal Information.
   2. Voluntary Participation. Participant’s election to submit Participant Data is entirely voluntary. Other than being named as a participant in accordance with this Section (including its subsections below), neither Participant nor any individual will be separately identified in the Aggregated Data.
      1. Participation. Participant agrees that its name will be listed as a participant and available to others as a part of MGMA’s Survey products and services, as is customary in the survey and panel data industry. Aggregated Data may be grouped with other participants in specific data cuts or be able to be segmented with other participants based on specific attributes (e.g., geographic location). In connection with this Agreement, Participant will have access only to the specific Participant Data it provides.
      2. Process and Data Accuracy. MGMA may review Aggregated Data for completeness and errors. Participant agrees to cooperate with MGMA on a timely basis to answer questions and to correct any identified problems, omissions, or errors. Despite any MGMA review, Participant must undertake reasonable efforts to maintain the accuracy of its data and the data it submits.
      3. Use of Deidentified Personal Information and Aggregate Personal Information. MGMA may use Deidentified or Aggregate Personal Information derived from the Participant Data in any manner that complies with the applicable laws. MGMA may not attempt to or actually re-identify any previously Deidentified or Aggregate Personal Information such that it may constitute Personal Information again. Aggregated Data comprises Deidentified and Aggregate Personal Information.
   3. Term; Termination. This Agreement will remain in full force and effect for the Term. “Term” means one (1) year from the date upon which Participant accepts this Agreement.
3. Access and Security. MGMA shall provide to Participant the necessary passwords and network links or connections to allow Participant to submit the Participant Data (the “Access Protocols”), which are provided “AS IS.”  Participant is responsible for all acts and omissions of its employees, contractors or other agents, and any act or omission by such individuals which, if undertaken by Participant, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Participant.
4. Usage Restrictions. Participant shall not provide to MGMA, upload to MGMA systems, or include in Participant Data any sensitive data, such as social security numbers, bank account numbers, health information (including PHI), government identifiers, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data processed solely to identify a human being, or data concerning a person's sex life or sexual orientation. Participant shall ensure that, in submitting Participant Data, it complies with all applicable laws, statutes, regulations or rules.
5. Intellectual Property Ownership.
   1. MGMA IP. MGMA is the sole and exclusive owner of all right, title and interest in and to its Surveys, the Aggregated Data, and any documentation (collectively, the “MGMA IP”). MGMA IP includes any improvements, modifications, customizations, or enhancements thereto, all updates and upgrades (now or hereafter resulting from the efforts of MGMA, Participant, or any other person, working together or alone), and all associated intellectual property rights. “Intellectual property rights” mean all forms of intellectual property rights and protections currently existing or hereafter recognized, developed or acquired, whether arising under the laws of a specified jurisdiction or granted by contract, license or otherwise, in: (i) patents, patent applications and patent disclosures; (ii) trademarks, service marks, trade dress, , associated goodwill, and all applications, registrations and renewals in connection therewith; (iii) copyrightable works, copyrights and applications, registrations and renewals in connection therewith; (iv) trade secrets in the likes of know-how, technical information, methodologies, processes, databases and other proprietary, non-public information; and (v) moral rights, privacy rights, and publicity rights.
   2. Feedback. If Participant sends or transmits any communications or materials to MGMA by mail, email, telephone, or otherwise, suggesting or recommending changes to the MGMA IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), MGMA is free to use such Feedback without any attribution or compensation to any party and irrespective of any other obligation or limitation between the Parties governing such Feedback.
   3. Reservation of Rights. Except for the rights expressly granted by a Party to the other under this Agreement, no rights of ownership, license, or other privilege may be deemed to have been conferred between the Parties unless explicitly agreed to in a document (other than this Agreement) signed by both Parties.
   4. Remedies. Participant agrees MGMA will suffer irreparable harm if Participant breaches the terms of this Agreement and monetary damages would not be an adequate remedy for any such breach. MGMA is entitled to, and Participant will not oppose the granting of, equitable relief, including injunction and specific performance to the maximum extent available under any applicable law, in the event of any such breach or threatened breach, in addition to all other remedies available to MGMA at law or in equity. Participant waives any requirement of a bond in connection with such remedy.
6. Warranties and Disclaimer.
   1. Mutual Warranties. Each Party represents and warrants: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) the execution and performance of this Agreement will not conflict with or violate any provision of any law applicable to such Party; and (iii) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party enforceable against such Party in accordance with its terms.
   2. Participant Warranties. Participant warrants (i) Participant owns the Participant Data or otherwise has the right to provide the Participant Data to MGMA, (ii) submission of the Participant Data does not violate or conflict with any law, agreement or arrangement of Participant with any third party, and (iii) Participant will not take any actions adverse to MGMA’s rights in the Aggregated Data.
   3. Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN THE PRECEDING SUBSECTIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MGMA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED. 
7. Limitation of Liability. IN NO EVENT WILL MGMA OR ANY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, DIRECTORS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE LIABLE TO PARTICIPANT OR ANY AUTHORIZED USER FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER DIRECT OR INDIRECT, INCLUDING, BUT NOT LIMITED TO, ANY ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, ANY LOSS OF BUSINESS, EMPLOYEE, CONTRACTOR OR OTHER AGENT, AND SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. PARTICIPANT WILL BE SOLELY LIABLE FOR ALL EXPENSES, LOSSES, OR DAMAGES INCURRED BY PARTICIPANT AS A RESULT OF ITS SUBMISSION OF PARTICIPANT DATA. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN PARTICIPANT AGREES THAT THE AGGREGATE LIABILITY OF MGMA AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS WILL NOT EXCEED TEN DOLLARS ($10.00).
8. Miscellaneous.
   1. Waiver of Class or Consolidated Claims.  ALL CLAIMS AND DISPUTES ARISING OUT OF THIS AGREEMENT, INCLUDING ANY CLAIM UNDER TORT, DECLARATORY RELIEF, OR STATUTORY CLAIMS, MUST BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND EACH PARTY AND ANY USER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
   2. Notice. Any notices permitted or required hereunder will be in writing, delivered to the Parties at their addresses as notified in writing (including Participant’s registration to submit the Participant Data) by personal delivery, registered mail, express courier service or e-mail. Either Party may update its contact information for purposes of this Section by providing written notice to the other Party of such changes.

To contact MGMA:

MGMA-ACMPE

Attn: Director, Data Solutions

104 Inverness Terrace East Englewood, CO 80112

Phone: 303.799.1111

Email: survey@mgma.com

1. 3. Relationship. There is no joint venture, partnership, agency or fiduciary relationship existing between the Parties and the Parties do not intend to create any such relationship by this Agreement. Participant shall make no representations – expressly or through conduct – that it is affiliated with, sponsored by or endorsed by MGMA.
   4. Modification. MGMA may, at any time, add to or modify the terms of this Agreement upon thirty (30) days’ notice to Participant. Participant may be alerted of modifications to the terms of the Agreement via e-mail. Participant’s continued access to or use of MGMA system accounts or provision of Participant Data after the date of such notice by e-mail or otherwise to Participant constitutes acceptance of any amendment. If Participant disagrees with any new of modified terms of this Agreement, Participant may elect to terminate this Agreement as its sole and exclusive remedy.
   5. Waiver. Any failure of one Party to comply with any obligation hereunder may be expressly waived in writing by the other Party, but such waiver or failure to insist upon strict compliance with such obligation will not operate as a waiver of, or estoppel with respect to, any subsequent failure. Rights and remedies reserved to either Party shall be cumulative and shall not be in limitation of any other right or remedy which such Party may have at law or in equity.
   6. Interpretation and Enforcement. This Agreement is governed by and construed in accordance with the laws of the State of Colorado, without regard to the conflicts of laws principles thereof. All disputes arising from this Agreement will be within the exclusive jurisdiction of the state and/or federal courts located within the State of Colorado and the Parties hereby consent to such exclusive jurisdiction and waive objections to venue therein. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED TO THIS AGREEMENT.
   7. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
   8. Assignment. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Participant may not assign or transfer any of its rights or delegate any of its duties under this Agreement without the prior written consent of MGMA (and any assignment in violation of this clause is void ab initio). MGMA may freely assign this Agreement or any of its rights or delegate any of its duties under this Agreement.
   1. Electronic Contracting and Communications. Participant agrees MGMA may communicate with Participant by means of electronic communications, including sending electronic mail to the email address provided during registration. Participant should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Electronic communications are deemed received when sent to the email address provided at the time of registration. For those communications or records MGMA is otherwise required under applicable law to provide in a written paper form, Participant agrees MGMA may provide such communications or records by means of electronic communications. Participant agrees all licenses, policies, notices, disclosures and other communications MGMA provides electronically constitute written communications and Participant specifically consents to contract with MGMA electronically.
   10. Entire Agreement. This Agreement and MGMA’s online policies constitute the complete statement of the arrangements between the Parties with respect to its subject matter and supersedes all prior Agreements between the Parties with respect to those matters.