LAST UPDATED: JUNE 20, 2024
Datavant AWS End-User License Agreement 
This Datavant Terms of Service for AWS Marketplace sets forth the terms and conditions applicable to the licensing of Datavant’s Services and serves as the (“Agreement”) entered into by and between Datavant, Inc., a Delaware corporation (“Datavant”), and the entity or person placing an Order on the AWS Marketplace for accessing and using the Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Orders. Certain capitalized terms are defined in Section 15 (Definitions) and others are defined contextually in this Agreement. If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company. In the event of a conflict between this Agreement and an Order between you and Datavant, the terms of the Order shall supersede.
The “Effective Date” of this Agreement is the date which is the earlier of: (a) your initial access to the Service through any online provisioning, registration, or order process or (b) the effective date of the first Order. 
By clicking “I ACCEPT,” signing an Order referencing this Agreement, accessing or using the Service purchased from the AWS Marketplace, or otherwise indicating your acceptance of this Agreement, you are agreeing to be bound by the terms and conditions of this Agreement. Each party expressly agrees that this Agreement is legally binding upon it. 

The Service
Use Rights; License Grant. Subject to the terms and conditions of this Agreement and any applicable Order, during the Subscription Term, (i) Customer may access and use the Service only for its internal business purposes in accordance with the Documentation and (ii) solely if provided in an Order, Datavant grants Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to download the Software to a supported device and use the Software for the sole purpose of accessing and using the Service in accordance with the Documentation. Datavant reserves all rights not expressly granted under this Agreement. 
Authorized Users. Only Authorized Users may access and use the Service. Each Authorized User must keep its log-in credentials confidential and must not share them with anyone else. The Customer is responsible for its Authorized Users’ compliance with this Agreement and all actions taken through their log-in credentials. Customer will promptly notify Datavant if it becomes aware that any log-in credentials may have been compromised. 
Affiliates. Orders may be entered into under this Agreement by and between Datavant and Customer or any Affiliate of a party (an “Ordering Affiliate”). Each Order shall be deemed to incorporate by reference the provisions of this Agreement as though such provisions were set forth therein in their entirety. Each Ordering Affiliate is bound by the terms and conditions of this Agreement applicable to Customer or Datavant. Each party represents that it shall procure an Ordering Affiliate’s compliance with the terms of this Agreement. In no event will Customer or Datavant be liable for any breach of the terms of this Agreement (or an Order) by an Ordering Affiliate as if such breach were committed by such party.
Restrictions. Customer may not, and may not cause or permit others to: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the underlying source code or algorithms of any part of the Service, (ii) modify or create derivatives of the Service; (iii) disclose any benchmarking, availability, performance or vulnerability testing of the Service without Datavant’s prior written approval; (iv) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or provide access (other than to Authorized Users); (v) use a Service to develop a similar or competing product or service; (vi) transmit any viruses or other harmful materials to a Service or take any action that risks harm to others or the security, availability, or integrity of the Service; (vii) access or use the Service in a way that violates any Applicable Law or third-party rights or may cause Datavant to cease to be in compliance with any Applicable Laws or third-party rights; (viii) take any action with the purpose of, or having the effect of re-identifying any data that has been Processed using the Service; (ix) share its Site-Specific Token with any third party, (x) receive or share a Dataset without first transforming its Stie-Specific Token; or (xi) create a map or bridging file between any tokens generated by the Service and any identifiers or third-party tokens (items (i) through (xi) collectively, the “Restrictions”). Datavant has the right to take remedial action if a Restriction is violated, and such remedial action may include removing, suspending or disabling access to material that violates the policy. 
Software Updates. Datavant may in its sole discretion, from time to time, provide Customer with updates of the Software (the “Updates”). Customer agrees to install all available Updates in a timely manner and no later than 12 months from the date any Update is made available to Customer and acknowledges that Customer’s failure to do so is at Customer’s sole risk. Updates do not include capabilities not specified in an Order that Datavant makes available for an additional charge.
Customer and Data Partners. Customer acknowledges and agrees that in regard to Customer’s relationship with a Data Partner: (a) Customer is solely responsible for negotiating directly the exchange of Customer Data with a Data Partner; (b) Customer is solely responsible for vetting potential Data Partners; (c) Datavant shall have no liability arising under any negotiation, transaction, or agreement between Customer and a Data Partner; (d) Customer is solely responsible for using such data as authorized in its agreement with its Data Partner; and (e) any Customer agreement with a Data Partner will include language substantially to the effect that each party will comply with all Applicable Laws as it pertains to each party’s use of the Service. 
Intellectual Property Rights
Rights to Customer Data. As between the parties, Customer or its licensors retain all right, title, and interest and all Intellectual Property Rights in and to the Customer Data. Datavant does not obtain, and Customer retains and does not convey, any right, title and interest in the Customer Data, aside from the license to Process and distribute such Customer Data granted pursuant to Section 3(b) or as provided in any applicable Order.
Processing of Customer Data. Customer grants Datavant a non-exclusive, worldwide, royalty-free, sublicensable right and license to use, ingest, copy, store, host, distribute, disclose, profile, transmit, transfer, display, modify, and create derivative works from (collectively, “Process”) Customer Data as necessary to: (i) provide the Service; (ii) derive or generate Performance Data; and (iii) as otherwise required by Applicable Laws or (iv) as agreed in writing between the parties. Datavant may host, store, and retain such Customer Data during the Term of this Agreement. Following the last day of any applicable Subscription Term, Datavant shall have no obligation to store or retain any Customer Data but may retain it subject to the confidentiality provisions of Section 6. 
Profile Data. Customer may upload and submit certain promotional content and documentation to its account on the Service for use by Datavant in connection with creating a profile page for the purpose of identifying, indexing, marketing, promoting, and supporting the Customer Data on the Service (“Profile Data”). Profile Data may include marketing and promotional materials, logos, diagrams, specifications, FAQs, documentation, end user terms, descriptions of Customer Data and features, and support materials. Profile Data shall be true, correct, complete, accurate, and not misleading. Customer hereby grants Datavant a non-exclusive, worldwide, royalty-free, sublicensable right and license to Process Profile Data (and any registered or unregistered trademarks related thereto) as necessary to: (i) provide the Service; (ii) derive or generate Performance Data; (iii) as otherwise required by Applicable Laws or (iv) as agreed in writing between the parties. Notwithstanding anything to the contrary, during the Term, Datavant may use Customer’s name and standard logo in customer listings or as part of Datavant’s promotional and marketing efforts. 
Performance Data. Customer agrees that the Service may transmit Performance Data to Datavant and Datavant owns such Performance Data and may use and disclose it for any purpose, including the improvement of Datavant’s services.
Ownership of Service. Customer agrees that Datavant retains all right, title and interest and all Intellectual Property Rights in and to all components of the Service, including the Software and Platform, Datavant’s Confidential Information, the Performance Data, trademarks and trade names made available to Customer. The Service, including the Software and Platform is never undertaken or provided to Customer as a work for hire as such term is defined under U.S. copyright laws. All rights not expressly granted to Customer are reserved by Datavant. If Customer provides Datavant with feedback or suggestions (collectively “Feedback”) regarding the Service, Customer hereby grants Datavant a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable right and license to use the Feedback without restrictions or obligation. Customer is not obligated to provide Datavant with any feedback and any feedback provided is provided “AS IS”. 
Protected Health Information; Personally Identifiable Information. Each party hereby agrees that it will not, without the other party’s prior written consent, provide any PHI or personally identifiable information (PII) to the other party. The parties agree and understand that Customer’s use of the Service does not require the sharing of any PHI or PII with Datavant. Customer agrees not to submit to Datavant directly or through the Service any PHI unless Datavant agrees to receive PHI from Customer in an applicable Order and Customer has entered into a Business Associate Agreement (“BAA”), or in the event Customer will not sign a BAA and has provided Datavant a reason for not doing so, a Protected Health Information Agreement (“PHI Agreement”) with Datavant. If Customer submits PHI to Datavant in noncompliance with this section, Datavant will have no liability under this Agreement for such PHI, notwithstanding anything to the contrary. Upon mutual execution of the BAA or PHI Agreement, such agreement is incorporated by reference into this Agreement and is subject to its terms.
Security. Datavant will employ commercially reasonable administrative, physical, and technical safeguards to attempt to ensure the security, confidentiality, and integrity of the Customer Data while it is in its possession, custody, or control. Datavant will notify Customer of any unauthorized access and/or use of Customer Data of which it becomes aware. 
Fees and Payment. Customer agrees to pay Datavant the fees set forth in the applicable Order (“Fees”) within thirty (30) days of Customer’s receipt of an invoice for such Fees, including any sales, value-added or other similar taxes imposed by Applicable Law that Datavant must pay based on the Service set forth in an Order, except for taxes based on Datavant’s income. Fees for renewal terms will equal Fees for the last year of the expiring term increased by the greater of (a) the percentage increase in Consumer Price Index for Urban Consumers (CPI-U) for the preceding twelve-month period, and (b) five percent (5%). Fees listed on an Order are exclusive of taxes. Late payments will be subject to a finance charge of the lesser of 1.5% per thirty (30) day period and the maximum allowed by Applicable Law. Customer agrees to reimburse Datavant for all costs, expenses and attorneys’ fees to collect past due balances and interest. Except as expressly provided herein, all payment obligations are non-cancellable and Fees are non-refundable.
Customer Responsibilities. Customer is responsible for (a) the content and accuracy of the Customer Data and Profile Data, adequacy, and properly inputting data to the Service, (b) obtaining any required consents, authorizations or providing any notices necessary for Datavant to Process the Customer Data and Profile Data and provide the Service, (c) obtaining any necessary Certifications of any Datasets required by Applicable Laws, (d) the security, integrity, and confidentiality of Customer Data and Profile Data outside of Datavant’s control, (e) committing adequate resources to implementation, training and maintenance activities and reasonably cooperate with Datavant, as applicable, and (f) any use of the Service by Customer in a manner that is inconsistent with the terms of this Agreement or an applicable Order. 
Confidentiality
The party receiving Confidential Information will: (i) protect all Confidential Information of the disclosing party with at least the same degree of care that it uses to protect its own similar Confidential Information, but not less than a reasonable standard of care; (ii) not use or disclose any Confidential Information of the disclosing party for any purpose except to exercise its rights and fulfill its obligations under the Agreement; and (iii) except as set forth in Section 6.b, not disclose any Confidential Information to any third party other than its personnel whose access is necessary for purposes consistent with this Agreement and who are bound by obligations of confidentiality no less stringent than those set forth herein.
The receiving party may disclose Confidential Information to comply with Applicable Law, provided the receiving party gives the disclosing party prior notice of the compelled disclosure or legal proceeding (to the extent permitted by law) and reasonable assistance to and cooperation with the disclosing party, at the disclosing party’s cost, if the disclosing party desires to contest the disclosure. The parties agree that money damages are an inadequate remedy for breach of the obligations in this Section 6, and that any such breach may result in irreparable harm to the disclosing party. Therefore, in the event of any such actual or threatened breach, the disclosing party will be entitled, in addition to any other rights or remedies available to it at law or equity, to seek specific performance or injunctive relief without the posting of a bond.
Term and Termination
Term. This Agreement commences on the Effective Date and continues until expiration or termination of all Subscription Terms (“Term”). Each Order will have the initial Subscription Term set forth thereon and will automatically renew for successive renewal Subscription Terms of equal length to the initial Subscription Term, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term. If no initial Subscription Term is stated on an Order, the initial Subscription Term will be one (1) year. 
Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days from receipt of written notice thereof (such notice must provide sufficient detail regarding the breach and state the intent to terminate). In addition, either party may terminate on thirty (30) days’ written notice if the other party:  (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) makes any voluntary or involuntary filing in bankruptcy, reorganization or receivership or under similar laws for the protection of creditors, or has such a filing made against it, which is not withdrawn within thirty (30) days of such filing; (iii) enters into an assignment for the benefit of creditors; or (iv) liquidates or dissolves or ceases to do business in the normal course (without a successor). 
Effect of Termination. Upon termination or expiration of this Agreement, (i) Datavant will, if any Fees are owed, invoice Customer for such Fees; (ii) if the Agreement and/or Order is being terminated because of Datavant’s uncured breach pursuant to this Section 7, Datavant will provide Customer with a prorated refund of all amounts paid in advance for the remainder of the then-current Subscription Term; and (iii) Customer will immediately cease its use of the Service. All sections intended to survive by their terms will survive the termination or expiration of this Agreement.
Representations and Warranties
Mutual. Each party hereby represents and warrants to the other that: (i) it has the authority to enter into this Agreement, to grant the rights granted by it under this Agreement, and to perform its obligations under this Agreement; and (ii) it will comply with all Applicable Laws and third-party rights applicable to the performance of its obligations pursuant to this Agreement and any Order.
Additional Customer Warranties. Customer further represents and warrants to Datavant that Customer has obtained or caused to be obtained all rights (including Intellectual Property Rights), consents, permissions and provided any notices required by Applicable Laws for Datavant to Process the Customer Data and Profile Data and will comply with all Applicable Laws while using the Service.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DATAVANT DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR ENSURING THAT ANY DATASETS USING OUTPUTS FROM THE SERVICE ARE DE-IDENTIFIED IN ACCORDANCE WITH HIPAA, IF APPLICABLE, OR ANY APPLICABLE LAW; EXCEPT AS EXPRESSLY SET FORTH HEREIN, DATAVANT DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE ADEQUACY OR LEGAL COMPLIANCE OF THE SERVICE.
Indemnification
Indemnification by Datavant. Datavant shall indemnify, defend, and hold harmless the Customer, its shareholders, officers, directors, and employees from and against any third-party claims and liabilities (collectively, “Claims”) to the extent alleging that the Service, when used by Customer as permitted under an applicable Order and consistent with the Documentation, infringes or misappropriates a third-party’s patent, copyright, trademark, or trade secret. Datavant shall have no obligations or liabilities whatsoever under this indemnity with respect to the exclusions in Section 10.b. 
Exclusions. Datavant’s obligation to indemnify will not apply to the extent a claim arises in connection with (i) Datavant’s modification of any portion or component of the Service in accordance with Customer specifications, (ii) any portion of the Service that is modified after delivery by Datavant, (iii) a combination of some or all of the Service with other products, processes or materials, (iv) Customer’s continued use of the Service after Datavant has provided Customer, at no charge, with modifications that would have avoided the alleged infringement, or (v) Customer’s breach of this Agreement. 
Mitigation. Without limiting Sections 10.a and 10.b, in the event any Claim arises with respect to infringement of Intellectual Property Rights, Datavant will (i) modify the Service such that it does not infringe, (ii) provide a substantially equivalent solution that does not infringe or (iii) if Datavant determines the foregoing are not reasonably practicable, it may terminate this Agreement on thirty (30) days written notice (and will provide a refund to Customer of all amounts paid in advance for the remainder of the then-current term).
Indemnification by Customer. Customer shall indemnify, protect, defend, and hold harmless Datavant and its Affiliates, and their respective shareholders, officers, directors, and employees from and against any third-party Claims resulting from (i) Customer Data and Profile Data, including third-party claims that Customer Data or Profile Data infringe upon or otherwise violate a patent, copyright, trademark, trade secret, or other Intellectual Property Right of a third party and (ii) breaches of Section 8.b.
Indemnification Procedure. If any party entitled to indemnification under this Agreement (an “Indemnified Party”) makes an indemnification request to the other party (the “Indemnifying Party”), the Indemnified Party shall permit the Indemnifying Party to control the defense, disposition or settlement of the matter at its own expense; provided that the Indemnifying Party shall not, without the consent of the Indemnified Party, enter into any settlement or agree to any disposition that imposes any conditions or obligations on the Indemnified Party other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of the Indemnifying Party. The Indemnified Party shall notify the Indemnifying Party promptly of any Claim for which the Indemnifying Party is responsible and shall reasonably cooperate with the Indemnifying Party to facilitate defense of any such Claim. An Indemnified Party shall at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Indemnified Party’s own expense.
Limitation of Liability. 
Disclaimer of Indirect Damages. SUBJECT TO SECTION 11.c, NEITHER PARTY, NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONSULTANTS (AND, IN DATAVANT’S CASE, ITS PROVIDERS) WILL BE LIABLE IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL OR CONTRACTUAL THEORY) FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE, OR THE COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. 
Liability Cap. SUBJECT TO SECTION 11.c, A PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT AND ALL ORDERS SHALL BE LIMITED TO THE TOTAL AMOUNT PAID TO DATAVANT BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION ACCRUES (OR, IF NO AMOUNTS ARE PAID, AND NONE ARE OWED, $25,000). NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS BEEN DISCOVERED BY THE OTHER PARTY.
Exclusions. THE DISCLAIMERS OF DAMAGES IN SECTION 11.a AND LIABILITY CAP IN SECTION 11.b WILL NOT APPLY TO ANY LIABILITY ARISING FROM OR RELATED TO: (i) A PARTY’S FRAUD, GROSS NEGLIENCE, OR WILLFUL MISCONDUCT, (ii) CUSTOMER’S PAYMENT OBLIGATIONS; AND (iii) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10. 
Pilots. If Customer receives access to the Service or features thereof on a free or trial basis (“Pilot”), use is permitted only for Customer’s internal evaluation during the period designated in an Order (or if not designated, thirty (30) days). Pilots are optional and either party may terminate Pilots at any time for any reason. Pilots may be inoperable, incomplete, or include features that Datavant may never release, and their features and performance information are Datavant’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, DATAVANT PROVIDES NO WARRANTY, INDEMNITY OR SUPPORT FOR PILOTS, AND DATAVANT’S AGGREGATE LIABILITY FOR PILOTS WILL NOT EXCEED FIFTY U.S. DOLLARS ($50). 
Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at their respective addresses set forth herein or in an applicable Order, and in the case of Datavant, Attn:  Legal, (or as otherwise later changed by either party upon written notice to the other party). Notice shall be deemed to have been received by a party (a) if delivered by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Datavant (such as for indemnity) must also be provided in email to:  notices@datavant.com (subject heading:  Attn:  Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in the preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer is sufficient to the extent expressly stated in this Agreement.
General Terms
Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. There are no intended third-party beneficiaries of this Agreement.
Governing Law. This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. 
Arbitration. All disputes under this Agreement shall be resolved by binding commercial arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent available, the JAMS Streamlined Rules will be used. The arbitration will take place in New York, New York. Any arbitration award may be confirmed in any court of competent jurisdiction. 
Entire Agreement. This Agreement, together with all Orders and including all exhibits, is the final and entire agreement between the parties on the subject matter in the Agreement. If there is a conflict between the terms of the Agreement or an Order, the Order controls.  In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
Amendments; Waivers; Severability. This Agreement may be amended only by a written document executed by a duly authorized representative of each party. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
Independent Contractors; Subcontractors. Datavant may use subcontractors and permit them to exercise Datavant’s rights, but Datavant remains responsible for their compliance with this Agreement and for its overall performance under this Agreement. The parties are independent contractors, not agents, partners, or joint ventures. This Agreement does not limit the rights of either party to contract with third parties for similar software and services to accomplish similar objectives.
Export Control. Customer will comply with all relevant U.S. and foreign export and import laws in using any Service. Customer: (i) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (ii) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (iii) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
Definitions. In addition to the terms defined elsewhere in this Agreement, the following capitalized terms will have the meanings set forth in this Section 15.
“Affiliate” shall mean any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with either party. The term “control” means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Applicable Laws” means any applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy, and the Health Insurance Portability & Accountability Act, as amended and supplemented (“HIPAA”). 
“Authorized User” means any employee of Customer (or, subject to Section 1.c, an Affiliate of Customer) that Customer or its Affiliate allows to use the Service on its behalf.  
“Certification” means the process by which data is determined to be de-identified in accordance with HIPAA by a statistical expert, as described in 45 CFR § 164.514(b)(1). Data is “Certified” if it has undergone this process.
“Confidential Information” means the information that the disclosing party designates as confidential at the time of disclosure or that should reasonably be understood to be confidential information of the disclosing party. Confidential Information does not include information that:  (i) is or becomes generally available to the public through no act or omission, and without breach of the Agreement by the receiving party; (ii) at the time of disclosure by disclosing party, was already known to the receiving party free of any confidentiality obligation; (iii) is lawfully received from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Confidential Information of either party disclosed prior to the Effective Date will be subject to this Agreement. Datavant’s Confidential Information includes, without limitation, its pricing information, the Software, the Performance Data, Site-Specific Tokens, Datavant IDs (as defined in the Documentation), and any Datavant-provided software, materials and Documentation. Customer Confidential Information includes, without limitation, Customer Data.
“Customer Data” means any data provided to Datavant by Customer for Datavant’s Processing or performance of the Service. 
“Dataset” means a dataset that includes data that has been processed by the Service, regardless of whether such data once constituted or contained PHI.
“Documentation” means any manuals, guides, documentation and other supporting materials related to the Service that Datavant provides to Customer.
“Data Partner” refers to Customer and any third party with whom Customer shares or receives data processed by the Service. 
“Intellectual Property Rights” means patent, copyright, trademark, trade secret, and other intellectual or industrial property rights.
“Order” means an order form for access to the Service or related Datavant services referencing this Agreement that is executed by Datavant and Customer (or, subject to Section 1.c, an Affiliate of Customer). 
“Performance Data” means any data reflecting the manner, method, frequency, timing, and process of access or use of the Service by or on behalf of Customer, including usage and operations data. For clarity, Performance Data does not include Customer Data.
“Platform” means the then-current version of Datavant’s proprietary online portal, architecture, networks, including the Software and Documentation. 
“Processing” has the meaning set forth in Section 3.b. 
“PHI” means protected health information, as defined under HIPAA.
“Service” means the purchase of Datavant’s Platform or Software that are specified on an Order or otherwise made available to Customer by Datavant in connection with this Agreement and any related Documentation, modifications, enhancements, derivative works, patches, and Updates. 
“Site-Specific Token” means an algorithmically generated representation of an individual produced by the Service using a one-way seeded hashing function and a unique encryption key created and assigned to a specific Customer.
“Software” means Datavant’s proprietary tokenization software, scripts, or other code or software that are specified on an Order or otherwise made available to Customer by Datavant and any related Documentation, and any improvements, modifications, enhancements, derivative works, patches and Updates. 
“Subscription Term” means the period of time during which Customer is authorized to access the Service, as specified in an applicable Order.