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Provider & Sponsor Terms of Use

Effective March 2021

These Terms of Use (“TOU”) govern a User’s access to and use of Tempus Software. The terms of any software license or other agreement entered into between your Institution and Us, as well as the Tempus Privacy Notice, are hereby incorporated by reference into these TOU (collectively such license or agreement, the Privacy Notice, and these TOU are referred to as the “Agreement”). By logging into and using the Software, You accept these TOU and represent that you have the authority either to enter into these TOU or that your employer has authorized you to use the Software pursuant to the TOU.

 

1. DEFINITIONS

1.1   “Institution” means the legal entity that has entered into a software license or other agreement with Us to access and use Software.

1.2   “Software” means the Tempus Portal, LENS, the TIME site, Tempus mobile applications, and any other software product, feature, application, or technology that Tempus makes available to You through a Tempus User account, including all notebooks, code, and other files, documents, and materials made available therein.

1.3   “User” means an individual who is authorized by an Institution to use Software and who has been supplied user identification credentials and passwords by the Institution (or by Us at the Institution’s request).

1.4   “We,” “Us” or “Our” means Tempus Labs, Inc., a Delaware corporation with a principal place of business in Illinois.

1.5   “You” or “Your” means a User of Software.

 

2. USE OF SOFTWARE

2.1   Your Responsibilities.You will (i) be responsible for Your compliance with this Agreement, (ii) prevent unauthorized access to or use of Software, and notify Us promptly of any such unauthorized access or use, and (iii) use Software only in accordance with its intended purpose and applicable laws and regulations. You will not (a) make Software available to anyone other than Users, (b) sell, resell, rent, or lease Software, (c) use Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (d) use Software to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of Software, (f) attempt to gain unauthorized access to Software or Our systems or networks, (g) download, modify, port, adapt, copy, reverse engineer, decompile, or disassemble any portion of Software, (h) attempt to discover the source code of the Software, or (i) use notebooks or code other than through the Software.

2.2   License to Software. Tempus will make the Software available to Institution during the Term of the Agreement. Tempus hereby grants Institution and its authorized Users a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Software during the Term solely for Institution’s internal purposes and in a manner consistent with its design and any written instructions made available by Tempus.

2.3   Except as otherwise provided herein, no content may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted, or transmitted without Our express prior written permission.

2.4   You and Institution grant Tempus a perpetual, irrevocable, royalty-free and fully paid right to use and exploit any suggestions, ideas, improvements, code enhancements, requests, feedback, recommendations, metadata, or other information related to Software that You make available, directly or indirectly, to Us.

 

3. PROPRIETARY RIGHTS

3.1   Software contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including copyright, patent, and trademark laws. You agree to abide by all applicable copyright notices or restrictions contained on Software. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, documentation, any improvements, design contributions, or derivative works of Software will, as between you and Us, at all times be and remain the sole and exclusive property of Tempus. All works in Software owned by Tempus are Our property and all rights are reserved.

3.2   Copyright Notice. All Software, including all notebooks, code, images, and other works are © 2020 Tempus Labs, Inc.  All rights reserved.

3.3   Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to Software, including all related intellectual property rights therein. We grant no rights to You hereunder other than as expressly set forth in this Agreement.

 

4. CONFIDENTIAL INFORMATION

4.1   Any non-public information provided by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under this Agreement, including specific terms and pricing, is the Disclosing Party’s “Confidential Information.” During the Term and the subsequent three (3) year period, the Receiving Party will maintain all Confidential Information in confidence and use it only as reasonably necessary to perform its obligations and exercise its rights under this Agreement.

4.2   Confidential Information excludes information that (i) is publicly available through no fault of the Receiving Party or anyone to whom the Receiving Party made such information available; (ii) was lawfully obtained by the Receiving Party on a non-confidential basis from a third party; (iii) the Receiving Party can conclusively demonstrate was legally in the Receiving Party’s possession before the Disclosing Party provided it to the Receiving Party; or (iv) was independently developed by the Receiving Party or on the Receiving Party’s behalf without the use of any information provided to the Receiving Party by the Disclosing Party.

 

5. COMPLIANCE WITH LAWS

5.1   Neither Party has received or been offered any illegal or improper payment, bribe, kickback, gift, or other item of value from an employee or agent of the other Party in connection with this Agreement. The Parties intend for their relationship and interactions under this Agreement to comply with the following: (i) the federal anti-kickback statute (42 U.S.C. § 1320a-7b(b)) and the associated safe harbor regulations; and (ii) the limitation on certain physician referrals (Stark Law) (42 U.S.C. § 1395nn). Accordingly, no part of any remuneration provided under this Agreement or any other agreement between the Parties is a prohibited payment in exchange for recommending or arranging for the referral of business or the ordering of items or services, or otherwise intended to induce illegal referrals of business.

5.2   You agree to seek legal counsel regarding any legal and compliance issues, and not rely on any materials or content associated with the Software in determining your compliance obligations under any applicable law or regulation.

5.3   The Tempus Portal, TIME Software program, and other Tempus Software products may allow Users to view, access, or upload Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act (“HIPAA”). In all circumstances involving PHI via the Software, whether submitted to or received from Tempus as a Covered Entity or as a Business Associate, You acknowledge and agree that by logging into an account and using the Software, You (and any authorized User acting on your behalf) may have access to PHI, and You agree to restrict access to and use such PHI solely in accordance with HIPAA and all other applicable laws.

5.4   The Software may allow an Institution or User to upload, submit, store, send or receive information. When an Institution or User uploads, submits, stores, sends or receives information to or through the Software, Tempus will own such information to the extent permitted by law and contract, and may use it and its derivatives for any lawful purpose. If applicable, You represent and warrant that You have the legal right and authorization to grant us rights consistent with these terms for any content that You submit to or through the Software.

 

6. DISCLAIMERS

6.1   SOFTWARE IS PROVIDED “AS IS.” WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. YOUR USE OF SOFTWARE IS AT YOUR SOLE RISK.

6.2   TEMPUS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR: (I) ANY ACTS, OMISSIONS AND CONDUCT OF ANY USERS, AND/OR OTHER PARTIES REFERENCED ON OR THROUGH THE SOFTWARE; OR (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE.

6.3   TO THE FULLEST EXTENT PERMITTED BY LAW: IN NO EVENT WILL TEMPUS BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, OR DAMAGES FOR LOSS OF PROFITS OR FOR PERSONAL INJURY THAT MAY RESULT FROM OR IN CONNECTION WITH THE USE OF (OR INABILITY TO USE) THE SOFTWARE.

6.4   The Software is not cleared or approved by the FDA, and it is intended solely for research use, not use in informing or determining patient care. The data displayed in Software reflects the information from medical records and other data provided by You. To the extent such information is inaccurate or incomplete, the data displayed in Software will also be inaccurate or incomplete.

6.5   Tempus does not engage in the practice of medicine, and Tempus does not provide medical advice. All medical services provided to a patient are provided by the healthcare provider in its professional capacity, and not on behalf of Tempus. Tempus assumes no responsibility for and disclaims all representations and warranties regarding information provided by a healthcare provider to its patient.

 

7. MODIFICATION OR DISCONTINUATION OF SOFTWARE

7.1   We reserve the right at any time to modify, edit, delete, suspend, or discontinue, temporarily or permanently, Software and/or the information, materials, products, and/or services available through it with or without notice. You agree that we shall not be liable to You, Institution, or any third party in such an event.

 

8. CHANGES TO TERMS

8.1   We may make changes to these Terms of Use, Our Privacy Policy, or our Copyright Notices from time to time. When these changes are made, We will make a new copy of the Terms of Use available on the Software, and will notify You of the changes either by sending You an e-mail or notifying Users when they access Software. You understand and agree that if you use Software after the date of the changes, We will treat Your use as acceptance of the updated Terms.

8.2   We may suspend or terminate your account or your use of the Software at any time, without notice, for any reason or for no reason. We may also block your access to the Software if (a) you breach these Terms of Use; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our Users or us. We also reserve the right to terminate or deactivate User accounts that are inactive for extended periods.

 

CONTACT 

If you have questions about this Agreement, please contact us at support@tempus.com.

 

Tempus Notetaker Terms of Use

The following Terms of Use (“TOU”) constitute a binding agreement between “You” and Tempus AI, Inc. (including its applicable affiliates, “Tempus”). These TOU govern Your use of and access to Tempus’ Notetaker software application (including any associated documentation, the “Software”). To the extent that You are using the Software as an employee or agent of an institution or entity (“Institution”), by logging in or using the Software, You agree that you are agreeing to these TOU on behalf of that Institution for purposes of Your use of the Software, and that You have authority to bind that Institution to these TOU. The terms of any other applicable written agreement entered into between Your Institution and Tempus relating to the use of the Software, the attached Business Associate Agreement, and the Tempus Privacy Notice, Acceptable Use Policy, and other documents and policies made available through the Software, are all hereby incorporated by reference into these TOU. To the extent of any conflict between these TOU and any separate written agreement between You or Your Institution and Tempus governing Your use of the Software, the terms of the separate written agreement will control to the extent of the conflict. Tempus may make changes to these TOU, or other applicable Tempus policies, such as its Privacy Policy, Acceptable Use Policy, and/or Copyright Notices, from time to time. When these changes are made, Tempus will make a new copy of the updated document available through the Software. You understand and agree that your continued use of the Software after the date of the change will represent your acceptance of the change.

1. DEFINITIONS

a. “Authorized Purposes” means use of the Software solely to create AI-generated draft clinical documentation, based on audio transcripts of patient encounters, for review by a competent, licensed professional who must revise the documentation as needed and confirm its accuracy before it is incorporated into the applicable patient’s record or used for any other purpose, all as limited by and in accordance with any written documentation for the Software made available to You by Tempus. For the avoidance of doubt, Authorized Purposes expressly excludes use of the Software as a storage solution for clinical or legal documentation, use of the Software for the development of competitive products or services, and unauthorized publication or disclosure of the Software or any other Tempus Confidential Information.

b. “Feedback” means any suggestions, ideas, improvements, code enhancements, requests, feedback, recommendations, metadata, or other information related to Software that You or Institution make available, directly or indirectly, to Tempus.

c. “Unauthorized Purposes” means any use that is not an Authorized Purpose, including without limitation any use that is not in accordance with applicable law, or for use to subvert any applicable law (for example, use of the Software to generate false or misleading documentation that is used in support of insurance claims).

d. “User” means an individual who is authorized by an Institution (if applicable) and Tempus to use Software, including You.

e. “User Credential Data” means the personal information of Users, including, without limitation, username and password, needed to log in and access the Software.

2. LIMITATIONS OF GENERATIVE AI  

a. The Software incorporates, uses, or enables You to use one or more large language models (“Agents”) that receive data (“Input”) and generate responses (“Output”). Agent Outputs may not be accurate, correct, complete, reliable, or factual and may “hallucinate” incorrect information. Agents and their Outputs are provided on an AS-IS basis and “WITH ALL FAULTS.” You understand the limitations and risks associated with the use of Agents and agree to the following as consideration for Your license to use the Software:

i. You will use Agents only for their Authorized Purposes. You acknowledge that Agents may be technically capable of uses not intended by Tempus. 

ii. You will ensure that any Output will be reviewed by a human for accuracy and appropriateness prior to any use of the Output. You will not rely solely upon Output related to specific individuals for medical/clinical decision-making, insurance, legal, or other purposes which may have a material impact on any person or entity. You will not substitute an Output for You (or Your staff’s) professional judgment or advice.

iii. TEMPUS IS NOT RESPONSIBLE FOR USE OF ANY OUTPUT BY OR ON BEHALF OF YOU OR INSTITUTION.

3. USE OF SOFTWARE

a. Subject to these TOU and Your payment of all fees required by Tempus for use of the Software, Tempus hereby grants You a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to access and use the Software to submit Inputs (defined below) to generate Output (defined below) solely for Authorized Purposes. 

b. You will (i) be responsible for Your compliance with these TOU; (ii) prevent unauthorized access to or use of Software, and notify Tempus promptly of any such unauthorized access or use; and (iii) use Software only in accordance with the Authorized Purpose and applicable laws and regulations. You will not (a) make Software available to anyone other than You; (b) sell, resell, rent, or lease the Software; (c) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (d) use the Software to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity; (e) interfere with or disrupt the integrity or performance of the Software; (f) attempt to gain unauthorized access to the Software or other Tempus systems or networks or otherwise circumvent Software security controls; (g) copy, download, screenshot, modify, port, adapt, reverse engineer, decompile, disassemble, create derivative works, or access the source code of any portion of Software; (h) attempt to discover the source code of the Software; (i) use the Software for benchmarking or to generate performance or comparison data with respect to other software or services; (j) use the Software or any code provided or embedded therein other than as intended for Authorized Purposes; or (k) use the Software for any Unauthorized Purposes.

c. Tempus reserves the right at any time to modify, edit, delete, suspend, or discontinue, temporarily or permanently, the Software, access to any Outputs, and/or the information, materials, products, and/or services available through it as well as other Tempus Confidential Information, with or without notice.

d. The following restrictions apply to Your access and use of the Software:

i. You may not copy, screenshot, reproduce, publish, disclose, sell, lease, distribute, or otherwise use the Software for Unauthorized Purposes. 

ii. You may only copy and use Output generated through the Software for Authorized Purposes.

iii. You may not upload, import, copy and paste, or otherwise use third party software or code in or with the Software. 

e. You agree to pay all fees associated with Your use of the Software in accordance with Your order form for the Software. All fees are quoted in United States currency, and are non-refundable unless expressly stated otherwise. Such fees do not include any applicable taxes, which are Your responsibility. You consent to the charging of such fees on the credit card provided with the order form. Unless stated otherwise on the applicable order form, all fees are due and payable within thirty (30) days of the invoice date. Any undisputed fees not received by the due date will accrue interest from the due date at the lower of one and a half percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law.

4. ACCESS CONTROLS 

a. You will: (a) be responsible for the security and use of Your User ID and password; (b) not permit any other person or entity to use Your User ID and password; and (c) not share User Credential Data. Tempus reserves the right to deny or revoke access to the Software, in whole or in part, if Tempus reasonably believes that Institution or its Users are in breach of these TOU, any payment obligations, or any applicable written agreement or are otherwise using or accessing the Software in a manner inconsistent with these TOU. 

5. DATA

a. Because You and/or Institution are in the best position to interpret and apply the requirements that apply to You and/or Institution, You agree that as between the Parties, You are solely responsible for complying with all such applicable laws, policies, rules, guidelines, and similar requirements, including, as applicable, all requirements that govern patient consent and the collection, processing, transfer, analysis, use, and storage of protected health information, personally identifiable information, and other Inputs (“Institution Policies”). As part of fulfilling such responsibility, Institution and You will only provide data to Tempus to the extent such transfer, and Tempus’ use of the Inputs in accordance with these TOU and any applicable written agreement, is fully compliant with Institution Policies. Before each instance of using the Software, You will obtain any consents and provide any notices that may be required by Institution Policies, including without limitation any patient or other individual consent needed to permit recording of clinical encounters and processing of such data by artificial intelligence and other software under the laws that apply to You and Institution. TEMPUS DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY BREACH OF INSTITUTION POLICIES.

b. The Software is not intended for use to store clinical or legal documentation. Audio recordings are typically deleted from the Software following completion of a session, and notes or other content generated using the Software must be copied and stored in the applicable record keeping software, such as Your electronic health record system. The Software is not an electronic health record system, and Tempus is not responsible for storing or maintaining accessibility of any Input or Outputs of the Software.

c. To the extent that Tempus receives, accesses, or uses any protected health information (“PHI”) provided by You in relation to the Software, Tempus’ use of such PHI will be governed by the attached Business Associate Agreement. 

d. You acknowledge that the Software may be developed, maintained, supported, and hosted by one or more third party vendors of Tempus. To the extent any such vendor has access to PHI provided through the Software, Tempus and such vendor will be subject to the terms of a flow-down business associate agreement that is consistent with the terms of the attached Business Associate Agreement and requirements that apply to Tempus and/or the vendor under applicable law.

6. INTELLECTUAL PROPERTY 

a. The Software contains data, code, algorithms, applications, functionality, content, information, product names, and other material that is proprietary to Tempus or its licensors and is protected by applicable intellectual property and other laws, including copyright, patent, and trademark laws. You agree to abide by all applicable copyright notices or restrictions contained on Software. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, documentation, any improvements, design contributions, or derivative works of Software (including any user manual or other technical documentation provided in connection therewith) will, as between Tempus, You and Institution, at all times be and remain the sole and exclusive property of Tempus (or Tempus’ licensors, if applicable). All works in the Software owned by Tempus are Tempus’ Confidential Information and all rights are reserved.

b. The Software allows an Institution or User to upload, submit, send Inputs and other information into the Software. As between You, Institution, and Tempus, but without limiting any provisions of these TOU, You and Institution shall own the Inputs that You submit to the Software. You and Institution grant Tempus a non-exclusive, perpetual, irrevocable, royalty-free license to use Your Inputs to enable You to use the Software, for product improvement purposes, and for any other purposes consistent with these TOU and applicable law.

c. Except as otherwise agreed upon in a separate written agreement governing Your use of the Software, when an Institution or User uploads, submits, stores, sends or receives information to or through the Software, Tempus and its third party licensors may use and disclose such Inputs and its derivatives for any purpose consistent with these TOU, the attached Business Associate Agreement, and applicable law. You represent and warrant that You have the legal right and authorization to grant Tempus rights consistent with these TOU for any content or Inputs that You submit to or through the Software. These rights survive any deletion of data in the Software.

d. Without limiting the generality of the foregoing, Tempus may make and retain a de-identified copy of health information received or generated in connection with the Software (“De-Identified Data”). As applicable law requires, Tempus will de-identify such data in accordance with HIPAA. Tempus owns its copy of the De-Identified Data and may use and share it for any purpose permitted by applicable law.

e. You and Institution grant Tempus a non-exclusive, perpetual, irrevocable, royalty-free license to store and use User Credential Data to provide and maintain Your access to the Software and for security and other lawful purposes.

f. You and Institution grant Tempus a perpetual, irrevocable, royalty-free and fully paid right to use and exploit Feedback for any purpose.

g. Tempus and its third party licensors and vendors may collect, aggregate, and use product usage, telemetry and similar technical data generated by Your use of the Software in order to improve their products and services and for quality control and security purposes.

h. Subject to the limited rights expressly granted hereunder, Tempus and its licensors reserve all rights, title and interest in and to Software and any Tempus Confidential Information made available through or with the Software, including all related intellectual property rights therein. Tempus grants no rights to You hereunder other than as expressly set forth in these TOU.

i. All Software are © 2020 Tempus AI, Inc. All rights reserved.

j. The Software and other Tempus Confidential Information are provided on a non-exclusive basis, and nothing herein shall be construed to limit Tempus’ or its licensors’ ability to provide the Software and Tempus Confidential Information to other Users, Institutions, or other third parties. 

7. CONFIDENTIALITY 

a. Any non-public information provided by Tempus to You or Institution (collectively, the “Receiving Party”) under these TOU, including specific terms and pricing, is Tempus’ “Confidential Information.” During the term of Your license to the Software and the subsequent three (3) year period, the Receiving Party will maintain all Confidential Information in confidence and use it only as reasonably necessary to perform its obligations and exercise its rights under these TOU.

b. Confidential Information excludes information that (i) is publicly available through no fault of the Receiving Party or anyone to whom the Receiving Party made such information available; (ii) was lawfully obtained by the Receiving Party on a non-confidential basis from a third party; (iii) the Receiving Party can conclusively demonstrate was legally in the Receiving Party’s possession before Tempus provided it to the Receiving Party; or (iv) was independently developed by the Receiving Party or on the Receiving Party’s behalf without the use of any information provided to the Receiving Party by Tempus. For the avoidance of doubt, Tempus’ Confidential Information includes, without limitation, the Software.

8. COMPLIANCE 

a. Neither party to these TOU has received or been offered any illegal or improper payment, bribe, kickback, gift, or other item of value from an employee or agent of the other party in connection with the Software or these TOU. The parties intend for their relationship and interactions under these TOU to comply with the following: (i) the federal anti-kickback statute (42 U.S.C. § 1320a-7b(b)) and the associated safe harbor regulations; and (ii) the limitation on certain physician referrals (Stark Law) (42 U.S.C. § 1395nn). Accordingly, no part of any remuneration provided under these TOU or any other agreement between the parties is a prohibited payment in exchange for recommending or arranging for the referral of business or the ordering of items or services, or otherwise intended to induce illegal referrals of business.

b. You agree to seek legal counsel regarding any legal and compliance issues, and not rely on any materials or content associated with the Software in determining your compliance obligations under any applicable law or regulation.

9. WARRANTIES 

a. THE SOFTWARE IS PROVIDED “AS IS.” TEMPUS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TEMPUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TEMPUS DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK.

b. You represent and warrant that (a) You have the right to use the Software for Authorized Purposes only on behalf of Your Institution; (b) You will comply with all restrictions, terms, and conditions set forth herein these TOU and any applicable, related written agreement; (c) You will not violate any applicable laws and regulations when accessing and using the Software or other Tempus Confidential Information; and (d) You will not infringe upon any third-party privacy or intellectual property rights (e.g., patent, copyright, trade secret, confidentiality) when accessing or using the Software or other Tempus Confidential Information.

10. LIABILITY

a. TEMPUS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR: (I) ANY ACTS, OMISSIONS AND CONDUCT OF ANY USERS, AND/OR OTHER PARTIES; OR (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE; OR (III) LOSS OF INPUTS OR OUTPUTS.

b. TO THE FULLEST EXTENT PERMITTED BY LAW: IN NO EVENT WILL TEMPUS BE LIABLE FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS INTERRUPTION, OR FOR PERSONAL INJURY OR DAMAGE TO PROPERTY THAT MAY RESULT FROM OR IN CONNECTION WITH THE USE OF (OR INABILITY TO USE) THE SOFTWARE OR ANY OUTPUTS.

c. User and Institution shall indemnify, defend and hold Tempus harmless for all third party claims arising out of Your use of the Software, including claims, judgments, penalties, fines, costs (including reasonable attorneys’ fees). 

11. TERMINATION 

a. You may terminate Your subscription to the Software at any time upon thirty (30) days notice to Tempus, by emailing help@tempus.com

b. Tempus may suspend or terminate Your account or Your use of the Software at any time, without notice, for any reason or for no reason. Tempus may also block Your access to the Software if (a) You breach any payment obligations, these TOU or any applicable written agreement related thereto; (b) Tempus is unable to verify or authenticate any User Credential Data or related information You provide; or (c) Tempus believes that Your actions may cause financial loss or legal liability for You, other Users, Tempus, or its licensors; or (d) Your use of the Software may present a security risk to Tempus or other Users. Tempus also reserves the right to terminate or deactivate User accounts that are inactive for extended periods as determined by Tempus.

c. Upon the termination of these TOU or related written agreement for any reason: (a) You and Institution will immediately cease using any Software and other Tempus Confidential Information provided to You under these TOU; (b) Institution and its authorized Users’ access to Software will terminate; (c) Institution and You will return to Tempus any and all Software and/or Tempus Confidential Information provided to You and/or Institution by Tempus; and (d) Institution shall pay all amounts due to Tempus through the effective date of termination.

d. The following provisions shall survive expiration or termination of the licenses to use the Software: Sections 1-2 and 5-12.

12. MISCELLANEOUS 

a. Any written notice required or permitted to be delivered pursuant to these TOU will be in writing and will be delivered: (a) in person; (b) by United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) by overnight mail with a national overnight courier, in each case to the contact address provided by You (or to such other address as may be specified upon notice) or to Tempus at the address set forth in the following sentence, with a courtesy copy sent via email to the respective party; email shall be sent concomitantly to legal@tempus.com. A copy of notice to Tempus will be sent to Tempus AI, Inc., Attn: Legal Department, 600 W. Chicago Ave., Suite 510, Chicago, IL 60654. Notices will be effective upon receipt.

b. Institution and User may not assign its rights or responsibilities under these TOU, except in case of merger or sale of all or substantially all of Institution’s assets. All other assignments shall be null and void.

c. Tempus may subcontract any of its rights and obligations under this Agreement. Any Tempus subcontractor is subject to the terms of this Agreement that would otherwise apply to Tempus, and Tempus is responsible for the acts and omissions of its subcontractor to the same extent as it is responsible for its own acts and omissions.

d. Tempus shall have no liability to User or Institution, or to third-parties, for any failure or delay in performing any obligation under these TOU due to circumstances beyond its reasonable control including, without limitation, interruptions of the Software due to internet-related and/or communications service degradation, problems or interruptions, acts of God or nature, pandemics, epidemics, actions of or limitations by the government including government ordered work restrictions or shut downs, fires, floods, strikes, civil disturbances or terrorism.

e. Any waiver or modification of these TOU will not be effective unless executed in writing and signed by Tempus. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under these TOU will not be deemed to be a waiver or modification by such party of any of its rights under these TOU. If any provision of these TOU is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of these TOU.

f. The parties intend to create an independent contractor relationship, and nothing contained in these TOU shall be construed to make the parties partners, joint venturers, principals, agents or employees of the other. Neither party shall have any right, power or authority, express or implied, to bind the other. These TOU are between Tempus and Institution/User and confers no rights upon any third-parties.

g. Tempus may accurately describe You and/or Institution as Users of the Software; otherwise, neither party shall use the other’s name or logo without the prior written consent of the other party.

h. These TOU constitute the parties’ entire agreement and understanding of the subject matter related therein. 

i. These TOU will be interpreted and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles.

Business Associate Agreement

 

Background

A. You (“Covered Entity”) and Tempus AI, Inc. (“Business Associate”) have entered into one or more terms of use or contracts (each is inclusive of this BAA and an “Underlying Contract”) for Business Associate to provide Covered Entity with certain business associate services. This BAA will supplement and/or amend each applicable Underlying Contract only with respect to Business Associate’s receipt, use and creation of Protected Health Information in its capacity as a business associate (and not a covered entity) under the applicable Underlying Contract to allow Covered Entity to comply with HIPAA, HITECH and the Regulations. Except as so supplemented and/or amended, the terms of the Underlying Contract(s) will continue unchanged and will apply with full force and effect to govern the matters addressed in this BAA and in each Underlying Contract.

B. Covered Entity possesses Protected Health Information that is protected under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), subtitle D of Title XIII of Division A of the American Recovery and Reinvestment Act of 2009 (“HITECH”) and the regulations promulgated thereunder by the United States Department of Health and Human Services, and is permitted to use or disclose such Protected Health Information only in accordance with HIPAA, HITECH and the Regulations.

C. Business Associate will have access to and may receive Protected Health Information from Covered Entity in connection with its performance of business associate services to Covered Entity pursuant to an Underlying Contract. 

Terms

1.  DEFINITIONS. All capitalized terms used but not otherwise defined in this BAA have the same meaning as those terms in the Regulations. 

a. Breach. For purposes of Sections 2(d) and 2(k) of this BAA only, “Breach” has the meaning set forth in § 164.402 (including all of its subsections) of the Regulations; with respect to all other uses of the word “breach” in this BAA (e.g., section 4), the word has its ordinary contract meaning. 

b. Individual. “Individual” has the same meaning as the term “individual” in § 160.103 of the Regulations and will include a person who qualifies as a personal representative in accordance with § 164.502(g) of the Regulations. 

c. Regulations. “Regulations” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A, C, D and E, as in effect on the effective date of the Underlying Contract. 

d. Protected Health Information. “Protected Health Information” has the same meaning as the term “protected health information” in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity. 

e. Required By Law. “Required By Law” has the same meaning as the term “required by law” in § 164.103 of the Regulations. 

f. Secretary. “Secretary” means the Secretary of the Department of Health and Human Services or his designee. 

2. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE. 

a. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by this BAA, the Underlying Contract or as Required By Law. 

b. Business Associate agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 CFR Part 164 of the Regulations with respect to electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this BAA or the Underlying Contract. Business Associate agrees to mitigate, to the extent reasonably practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this BAA. 

c. Business Associate agrees to report to Covered Entity any Security Incident respecting electronic Protected Health Information in Business Associate’s possession or control, and any use or disclosure of the Protected Health Information not provided for by the Underlying Contract (including Breaches of Unsecured Protected Health Information as provided in Section 2(k) below) of which Business Associate becomes aware. Covered Entity acknowledges and agrees that this Section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of Unsuccessful Security Incidents. “Unsuccessful Security Incident” means, without limitation, pings on Business Associate’s firewall, port scans, attempts to log onto a system or enter a database with an invalid password or username, denial-of-service attacks that do not result in the system being taken off-line, or malware such as worms or viruses, in each case that does not result in unauthorized access, use, disclosure, modification, or destruction of PHI.

d. Business Associate agrees to ensure that, in accordance with 45 CFR § 164.502(e)(1)(ii) and 45 CFR § 164.308(b)(2) of the Regulations, any subcontractors, agents or workforce members that create, receive, maintain or transmit Protected Health Information on behalf of Business Associate agree to comply with the same or similar restrictions and conditions that apply to Business Associate with respect to such information. 

e. If Business Associate maintains Protected Health Information in a Designated Record Set for Covered Entity, Business Associate agrees to provide access, at the request of Covered Entity, and in the time and manner reasonably designated by Covered Entity, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under § 164.524 of the Regulations. 

f. If Business Associate maintains Protected Health Information in a Designated Record Set for Covered Entity, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to § 164.526 of the Regulations at the request of Covered Entity or an Individual, and in the time and manner reasonably designated by Covered Entity. 

g. To the extent Business Associate is to carry out any of Covered Entity’s obligations under Subpart E of 45 CFR 164 of the Regulations, Business Associate will comply with the requirements of Subpart E of 45 CFR 164 of the Regulations that apply to Covered Entity in the performance of such obligations.

h. Business Associate agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or to the Secretary, in a time and manner reasonably designated by Covered Entity or designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Regulations.

i. Accounting of Disclosures.

    1. Business Associate agrees to document such disclosures by Business Associate of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with § 164.528 of the Regulations. 
    2. Business Associate agrees to provide to Covered Entity or an Individual, in time and manner reasonably designated by Covered Entity, information collected in accordance with Section 2(j)(1) of this BAA, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with § 164.528 of the Regulations. 

j. Following Business Associate’s discovery of a Breach of Unsecured Protected Health Information, Business Associate will notify Covered Entity of such Breach in accordance with §§ 164.410 and 164.412 of the Regulations.

k. Business Associate will not sell PHI or receive any direct or indirect remuneration in exchange for PHI except as permitted by this BAA, the Underlying Contract or federal law.

l. Notwithstanding anything in this BAA to the contrary, this BAA does not govern the use or disclosure of PHI received or generated by Business Associate in connection with its clinical testing services or other services provided as a covered entity.

3. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE. 

a. Except as otherwise expressly limited in this BAA, Business Associate may use or disclose Protected Health Information to perform functions, activities or services for, or on behalf of, Covered Entity in connection with an Underlying Contract and any other agreements in effect between Covered Entity and Business Associate, including without limitation the provision of the services described in the Underlying Contract, provided that such use or disclosure would not violate the Regulations if done by Covered Entity. 

b. Except as otherwise expressly limited in this BAA, Business Associate may use Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate. 

c. Except as otherwise expressly limited in this BAA, Business Associate also may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate if the disclosure is Required By Law, or if Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. 

d. Except as otherwise expressly limited in this BAA, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by § 164.504(e)(2)(i)(B) of the Regulations.

e. Except as otherwise expressly limited in this BAA and provided that such de-identification is done in accordance with the requirements of § 164.514(b), Business Associate may de-identify Protected Health Information as permitted by applicable law, this BAA or the Underlying Contract, and may retain a copy of such de-identified information.

f. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with § 164.502(j)(1) of the Regulations.

4. TERMINATION. 

a. Termination for Cause by Covered Entity. Upon Covered Entity’s knowledge of a material breach by Business Associate of this BAA, 

  1. Covered Entity may provide a reasonable opportunity for Business Associate to cure the material breach or end the material violation and if Business Associate does not cure the material breach or end the material violation within a reasonable time, Coverloed Entity may terminate this BAA and the Underlying Contract; or
  2. If Business Associate has breached a material term of this BAA and cure is not possible, immediately terminate this BAA and the Underlying Contract. 

b. Effect of Termination. Upon termination of this BAA for any reason, Business Associate will:

      1. Retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities.
      2. Except as provided in paragraph (6) of this section, return to Covered Entity or destroy the remaining Protected Health Information that the Business Associate still maintains in any form. This provision applies to Protected Health Information that is in the possession of subcontractors or agents of Business Associate.
      3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Business Associate retains the Protected Health Information.
      4. Not use or disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Sections 3(b)-(c) which applied prior to termination.
      5. Except as provided in paragraph (6) of this section, return to Covered Entity or destroy the Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
      6. In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate will provide to Covered Entity notification of the conditions that make return or destruction infeasible. In such event, Business Associate will extend the protections of this BAA to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes permitted by this section and that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.

     

5. MISCELLANEOUS.  

a. Changes to Regulations. If HIPAA, HITECH or any of the Regulations are amended, including by way of any regulations promulgated as provided in HITECH, in a manner that would alter the obligations of Business Associate as set forth in this BAA, then the parties agree in good faith to negotiate mutually acceptable changes to the terms set forth in this BAA. 

b. Survival. The respective rights and obligations of Business Associate under Section 4(b) of this BAA survive the termination of this BAA. 

c. No Third Party Beneficiaries. Nothing in this BAA will confer upon any person other than the Parties and their permitted respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

d. Interpretation. Any ambiguity in this BAA will be resolved to permit compliance with the Regulations. 

e. Unencrypted PHI. Covered Entity will use all reasonable efforts not to send unencrypted PHI to Business Associate in any form, including via email or on mobile devices such as USB drives. Should Covered Entity do so, Business Associate is not responsible for any damages arising out of or relating to unencrypted PHI that Covered Entity sends to Business Associate in any form.

f. Application of Civil and Criminal Penalties. Business Associate acknowledges that pursuant to §§ 13401(b) and 13404(c) of HITECH:

    1. in the case Business Associate violates any security provision specified in § 13401(a) of HITECH, sections 1176 and 1177 of the Social Security Act (42 U.S.C. 1320d-5, 1320d-6) will apply to Business Associate with respect to such violation in the same manner such sections apply to a covered entity that violates such security provision; and
    2. in the case Business Associate violates any provision of 13404(a) or 13404(b) of HITECH, the provisions of sections 1176 and 1177 of the Social Security Act (42 U.S.C. 1320d-5, 1320d-6) will apply to the Business Associate with respect to such violation in the same manner as such provisions apply to a person who violates a provision of part C of title XI of such Act.