Color
Higher Education Testing Program
Order Terms and Conditions

NOTE: Color does not modify standard terms and conditions for ACVs under $150,000.  Terms cover various services.  Applicable terms apply to the services ordered and utilized.

 

DEFINITIONS (in addition to terms defined in the Order or elsewhere in these Terms)

Annual Program Term: means the annual term for the applicable Higher Education Testing Program to which the Order applies.

APIs and API Terms: means application programming interfaces related to the Color Platform and made available to Client for limited use (the “APIs”) and any related documentation, standards, policies and guidelines, as well as the API-related terms herein (collectively the “API Terms”) made available to Client from time to time. 

Applicable Laws: means, when and to the extent applicable, those U.S. laws, rules and regulations that apply to Color’s provision of Testing and/or Services in an Order.

Claims: means any claims, actions, suits, proceedings, demands, losses, fines, damages, costs, (including reasonable outside attorneys’ fees) brought by a third party.

Client: means the client entity listed in an Order.

Color: means Color Health, Inc. and its subsidiaries and affiliates.

Color Property: means Color’s Tests and related documentation; its online portal and software platform; its marketing materials and content displayed or provided as part of the Services and Tests, and all copies and derivative works thereof related to the Services, as well as all associated intellectual property rights of any kind.

Color Test: means Color’s test to detect the presence of SARS-CoV-2, the virus known to cause coronavirus disease 2019 (“COVID-19”), used pursuant to an Emergency Use Authorization (the “EUA”) received from the U.S. Food and Drug Administration (“FDA”), as may be updated or modified from time to time (pursuant to a new EUA, amendment to an existing EUA, or FDA regulations and guidance regarding the performance of lab-developed tests without an EUA).

Eligible Individual(s): means the individuals provided to Color in an eligibility file from Client or who otherwise are eligible to register to use Services, as determined by Client.

Fees: means the total amounts due from Client for the Services as specified in any Order or related renewal or amendment.

Indemnified Parties: means, in each instance and as applicable, Color or Client, and its/their affiliates and its respective directors, officers, employees, representatives and agents.

Indemnifying Party: means, in each instance and as applicable, Color and Client and its/their affiliates and successors and assigns.

Indemnification Claims and Losses: means a third party claim, suit, investigation, action, demand, judgment, liability, cost, expense, damage, deficiency, loss or obligation of any kind or nature (including reasonable attorneys’ fees and reasonable other costs and expenses of litigation or defense) as well as forensic investigation costs associated with an investigation into potential unauthorized access to systems related to Services provided under this Agreement (as limited by the applicable Indemnification provision).

Participant(s): means, where referenced in an Order or Fee Schedule, an Eligible Individual utilizing (or granted the right to use) specified Services.

Payers: means third party payers, insurance companies, and/or Eligible Individuals.

Platform: means the software platform made available by Color as a Service.

Related Parties: means, in each instance and as applicable, Color or Client, and its affiliates and its/their respective directors, officers, employees or agents.

Sample: means the biological sample collected per the testing sample collection kit.

Services: means the services provided to Client by Color pursuant to an Order.

Term: means the period of the Annual Program Term, subject to renewal.

Test or Testing: means the Color Test, or any other third-party test (“Third Party Test”) used to detect the presence of COVID-19.

Third-Party Fees: means third-party fees for which Color is not the ultimate beneficiary, such as Physician Ordering Services, Shipping & Handling, and Test laboratory processing fees where Color does not perform these services.

1.TERMS AND CONDITIONS: ALL SERVICES

1.1 Standard of Services; Subcontractors; Providers; Intellectual Property; Authorizations and Consents; Information Use; Platform Terms; Voluntary Participation

(a) Standards. Color will perform the Services (on a non-exclusive basis) for or on behalf of Client pursuant to all Applicable Laws, and Color’s standard protocols then in effect. Color does not practice medicine, or provide medical treatment or medical advice, and does not make any representations, warranties, guarantees, or endorsements regarding any healthcare services or advice that may be obtained through the Services.

(b) Subcontractors. Client agrees that Color may engage subcontractors in the performance of the Services. Color is responsible for the acts or omissions of all subcontractors engaged by Color in the performance of Services authorized by Color. 

(c) Providers. Client may also elect, where offered by Color, for Color to facilitate by affiliated or non-affiliated medical provider group(s), physician(s) and other healthcare professionals (individually the “Provider” and collectively the “Providers”) available Test ordering services and/or for Test-related telehealth consultations regarding potential treatment prescription(s).  Color is not responsible for the acts or omissions of non-affiliated Color Providers. 

(d) Intellectual Property. Color owns all right, title and interest in and to the Color Property. Unless excluded under an applicable Order, for use on its website in general listings of customers or in other marketing materials, Color may (i) identify Client as a Color customer, using Client’s name and logo, and (ii) with Client’s written approval, publish a Client testimonial.

(e) Authorizations and Consents. If the Services or disclosure of information to Client requires a HIPAA authorization from an Eligible Individual, Color will not be obligated to perform the Services, or to disclose related information to Client, until it receives such authorization. 

(f) Use and Retention of Services-Related Information.  Client shall be solely responsible for any use of information it receives in connection with the Services. Client shall not use or share the information except as required or authorized by Applicable Laws and/or the Eligible Individual.  Color shall have no liability related to any use or disclosure by Client, any Eligible Individual, any Provider, or any Third-Party of information provided in connection with the Services. Client acknowledges that Color, as a clinical laboratory certified under the Clinical Laboratory Improvements Act of 1988 and accredited by the Client of American Pathologists, in accordance with Applicable Law, must retain Data  generated pursuant to the Order and may not destroy such Data for applicable retention periods or as otherwise required by Applicable Law.

(g) Voluntary Participation. Use of Color’s services is entirely voluntary. It is Eligible Individuals’ choice whether to utilize Color’s services or not based on their review of risks, benefits, and limitations of individual tests, treatments or other services, and at their sole discretion, in consultation with their own healthcare provider. 

1.2.  Fees and Payment.

(a) Payments. Client agrees to pay Color all Fees as set forth in each Order and any Order renewal or addition. Client shall pay invoiced amounts within 30 days of receipt of each Color invoice (not from Client’s Purchase Order receipt or issuance date, if applicable). If any invoiced amount is not received by Color by the due date, such amount may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted under law, whichever is lower. If any invoiced amount is 30 days overdue, Color may suspend services until such amounts are paid in full.Payment shall be made in USD via ACH or wire transfer and without offset or deduction.  If Color approves another method of payment used by Client, Client agrees to reimburse Color, to the maximum extent permitted by law, for any additional platform or transaction-related fees incurred by Color associated with such payment method, and Color is not responsible for any fees charged by any third-party service provider of Client in connection with submitting invoices or receiving payment.  Color reserves the right to change its Fees for products and services during any Term with thirty (30) days prior written notice to Client, provided that such changes shall apply to future orders only. Color may invoice at any time any additional orders placed by Client or its Eligible Individuals.  Client shall be billed annually in advance for any Annual fees.  As-ordered fees are billed upon order receipt.  One-time fees are invoiced in full on or prior to the Start Date. Usage-based charges may be invoiced monthly in arrears.

(b) FMV.  Client acknowledges that the Fees have been priced at fair market value and are not intended to provide any remuneration in cash or in kind for the referral of any Eligible Individual or patient.

(c) Cancellations and Refunds.  All fees are non-refundable, non-cancellable, non-creditable, and non-proratable.

(d) Population Size: Where Client pays for a Service Per Eligible Individual, pricing is calculated based on each unique person to be granted Platform access for the Services during the applicable Term based on all Eligible Individual information provided to Color by Client.  Where Client pays for a Service Per Participant, pricing is calculated based on the greater of each unique person from within the Eligible Individual population that is (i) identified by Client as a Participant and to whom the applicable Service is made available; or (ii) that utilizes or is registered to utilize the applicable Service.  The initial payment for any Term shall be for, as applicable, the estimated or actual population of unique Eligible Individuals who will be provided access to the Platform during such Term, or the number of Participants to be provided access to the applicable Services.  If Client’s Eligible Individuals or Participants exceed the paid-for number during the Term, Client shall be responsible for paying for such additional Eligible Individuals or Participants.  Client agrees to provide records to Color regarding Eligible Individual or Participant population numbers and access to Services, upon reasonable notice, to confirm compliance with payment of  Fees due under any Order.

(e) Payer Fees. The Fees charged by Color are separate from any fees charged by Client to Payers. Color shall have no responsibility for collecting, or assisting in the collection of, payment from any Payers. Client’s obligations to pay Color hereunder are not contingent upon Client receiving payment from or on behalf of any Payers, and Client is responsible for paying Color as provided for herein without regard to if or when Client receives payment from Payers. As between the parties, Client is solely responsible for ensuring its compliance with all applicable insurance billing regulations. Client agrees that it shall not, directly or indirectly, seek insurance reimbursement, in whole or in part, for any Services that are requested/ordered through the OHS-POR Services ordered through Color.

1.3. Confidentiality

Client and Color each agree to hold each other’s non-public confidential and proprietary information (e.g., pricing, operations, methods, processes, protocols, and procedures) in strict trust and confidence and will not disclose any such information to any third party, other than such party’s attorneys or accountants who require the information in order to provide professional services to such party, without the other party’s prior written approval, except as may be required by Applicable Laws (including, as applicable, reporting of Testing results).  Upon request, each Party agrees to destroy the confidential information received from the other Party, provided that this shall not apply to retention of records as required under Applicable Law, that each party’s counsel may retain one copy of such information for archival purposes, and that neither Party shall be required to alter its customary business practices for data archiving.

1.4. Term and Termination

(a) Term. Each Order is effective when fully executed for the period of the Annual Program Term (“Initial Term”).  Unless otherwise set forth in the applicable Order or earlier terminated hereunder, at the end of the Initial Term the Order shall automatically renew for additional successive 12-month terms (each a “Renewal Term”). If terminated for any reason, Client shall pay Color for any Services rendered prior to the date of termination.  No refund, credit, or proration shall be provided for any prepaid or due Order Fees. 

(b) Continued Use. Upon expiration of an applicable Order or any renewals, Color may cease providing the Services to Client. Notwithstanding the foregoing, Color may, for a limited period and in its sole discretion, allow Client to continue to use the Services beyond the expiration of an Order. By its continued use of the Services, Client agrees: (i) to these Terms and the Terms in the Order, and (ii) to pay for such use of the Services in an amount equal to the fees in effect immediately prior to such expiration, and (iii) that Color may cease providing the Services at the end of such period if Client has not signed a new Order.

(c) Termination. Either Party may terminate the Order on written notice due to a material breach by the other party that is not cured within thirty (30) days following written notice of such breach by the non-breaching party.  Either party may terminate the Order at the end of the Initial Term or the end of any Renewal Term by providing at least sixty (60) days advance written notice of non-renewal. 

1.5. Services Warranty; Limited Liability; Indemnification

(a) Limited Services Warranty. If Color fails to perform its Services in accordance with the standards described in Section 1.1 above, Client’s sole and exclusive remedy will be that Color shall re-perform the affected Services at no additional cost to Client. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COLOR PROVIDES ALL SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. COLOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(b) Limited Liability. Neither party is liable to the other for any consequential, indirect, special, exemplary, punitive, or incidental damages, including lost profits, loss of business, or any other commercial damage, regardless of the form of action or theory of liability. Furthermore, to the extent permitted by Applicable Laws, the maximum liability of either party arising out of or relating to this Order (whether arising from any claim(s) based on breach of contract, tort, products liability, strict liability, warranty, or otherwise), shall in no case exceed the actual fees paid to Color in the twelve (12) months immediately preceding the claim, excluding aggregate Third Party Fees.  This provision in no way limits Client’s payment obligations to Color under any Order or renewal.

(c) Indemnification. Color agrees to indemnify, defend and hold harmless the Color Indemnified Parties against any Indemnification Claims and Losses to the extent based upon or arising from: (a) the negligent or willful intentional wrongful acts or omissions of Color Related Parties in performance of the Services under this Agreement, or (b) Color’s failure to comply with Applicable Laws in providing services under this Agreement or the Confidentiality obligations hereunder; in each case except to the extent caused by the grossly negligent or willful intentional wrongful acts or omissions of Indemnified Parties.  Client agrees to indemnify, defend and hold harmless the Color Indemnified Parties against any Indemnification Claims and Losses to the extent based upon or arising from: (a) the negligent or willful intentional wrongful acts or omissions of Client Related Parties in relation to this Agreement, or (b) Client’s failure to comply with Applicable Laws related to this Agreement or the Confidentiality obligations hereunder; or (c) Client’s or Client’s Related Parties use of any deliverables hereunder; in each case except to the extent caused by the grossly negligent or willful intentional wrongful acts or omissions of the Color Indemnified Parties. 

1.6. Notices

Any notice or communication required under this Agreement shall be in writing and sent by email to the notice email address set forth in the Order (or as updated by a party in the same manner).  The effective date of notice shall be the earlier of the recipient’s email reply confirming receipt of the notice or the first business day following email delivery. 

1.7. Miscellaneous

A party’s failure to perform in timely fashion, other than any payment obligation, shall not be a breach if such failure to perform results from circumstances beyond the party’s reasonable control, including, but not limited to, labor disputes, civil disturbances, acts or non-actions of governmental authorities or suppliers, war, embargoes, severe weather, fire, earthquakes, Internet outage, Acts of God, or default of a common carrier.  This Order and the Order Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Delaware, excluding its conflicts of law principles. The Order and these Order Terms and Conditions are the entire agreement between the parties as to the Services and supersedes all prior written and oral communications or agreements about the Services.  No change shall be made except by written agreement.  The parties are independent contractors and are not considered partners, joint venturers, co-owners, or participants in any joint or common undertaking. Neither party may act as an agent of the other or create or assume any obligation on behalf of the other. Neither party may assign this Agreement without the other party’s prior written consent; however, Color shall have the right to freely assign this Agreement to any affiliate or successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Color may update these terms at any time to ensure compliance with Applicable Laws.  This Agreement shall be binding on and inure to the benefit of each of the parties’ successors and permitted assigns, if any.

2. TERMS AND CONDITIONS: PLATFORM SERVICES AND APIs

2.1 Platform Services and Modules (Including Vaccination Status Tracking Module and Third-party COVID-19 Rapid Antigen Test Self-Reporting Module)

Platform Services include all services related to the use of the Platform to manage Testing Services and reporting for Eligible Individuals. 

(a) Limited License. During the Term, Color grants Client a limited, non-exclusive, non-transferrable, and revocable right to access and use the Platform solely for Clients internal business use or personal use by Eligible Individuals. 

(b) Data Entry. Client is responsible for ensuring any information entered by Client, Client appointed parties or representatives (i.e., a testing coordinator) and Eligible Individuals (collectively, “Data Entrants”) are accurately reported using the Platform.  Color expressly disclaims any responsibility or liability for Eligible Individual eligibility criteria, Client’s use of data provided or through the Platform, and the accuracy of data input into the platform by Data Entrants.

(c) Platform Terms. Use of the Color Platform (including any Platform modules) is subject to the Terms of Service and Privacy Policy on the Color website, available at www.color.com/policies/tos and www.color.com/policies/privacy.

(d) Dashboard Information. Information accessible via dashboards on the Color Platform is a summary of patient data from Color’s clinical results.  Client understands and acknowledges that: (i) Color’s Clinical Provider Portal (CPP) is the means by which Color returns validated, clinical results as required under CLIA and CAP; and that (ii) dashboard information has not been compiled under Color’s standard clinical reporting process nor validated or signed out in accordance with CLIA or CAP requirements, and does not constitute clinical reporting or results. Client acknowledges and agrees only to access and share such data as permitted under Applicable Law.

2.2 API Terms

(a) Access and Use.  By accessing or using Color’s APIs, Client agrees to adhere to all API Terms and not to access or use the APIs in violation of Applicable Laws. Subject to the API Terms, during the Term, Color grants Client a non-exclusive, revocable, non-transferable limited license, to use Color’s APIs and related documentation only as necessary for internal business purposes in connection with an applicable current Order for Color services. Color’s APIs are provided in standard form, without custom development, modifications, or any representations or warranties regarding current or future compatibility with any Client system or service. Client agrees to be responsible for any API access through any tokens or keys provided to Client. Client shall not access or use Color’s APIs (i) in any manner that compromises, circumvents, or poses a vulnerability to any technical process or security measure associated with the Services; (ii) to replicate or compete with the Services; or (iii) outside of the rights expressly granted to Client by Color. Color reserves the right to suspend or terminate any API access at any time, and is not responsible for providing any support, maintenance, or other services (or level of service) to Client or a user of any Client software for the APIs.

3. TERMS AND CONDITIONS: TESTING SERVICES

3.1. Consents

(a) Consents. To the extent required under Applicable Law, prior to allowing an Eligible Individual to receive, use or access the Services, Client will ensure that each Eligible Individual provides consent to the Testing and reporting (including authorization by the parent/legal guardian/legally authorized decision-maker of any Eligible Individual under 18 years of age or who otherwise lacks the capacity or legal authority to provide consent).  Client further represents and warrants that each such consent will be compliant with Applicable Law, and agrees to provide copies of such consents to Color upon request where Color does not collect and retain such consents on behalf of the Client through the Color Platform.

3.2. Test Ordering; Ship to Home / Ship from Home; Sample Acceptance; Re-Testing

(a) Test Ordering. The Color Test is a healthcare provider ordered test.  Color only provides Testing Services on Samples provided by Eligible Individuals upon receipt of an order submitted by an authorized healthcare provider (“HCP”) with a Test Requisition Form (“TRF”) (each a “Test Order”).  Color may use the Samples and all information that is provided to Color in a TRF (“Data”) as necessary in connection with its performance of Services hereunder.  Client is responsible for engaging HCP(s) to obtain Test Orders for Eligible Individuals to receive the Color Test.  If Client orders Provider Ordering Services through Color, the “Terms and Conditions: Physician Ordering Services” also apply.

(b) Ship to Home / Ship from Home. Eligible Individuals or the Client is responsible for providing current and accurate ship-to information, and the Eligible Individual is responsible for following Color’s shipping and handling instructions when returning Tests.

(c) Sample Acceptance and Disposal. A Sample is considered accepted by only when the processing lab has received and inspected the Sample, received a complete and correct TRF, and has determined that the Sample was collected and sent in accordance with current collection, shipping and handling instructions, including timelines for collection and receipt of Samples for lab processing (“Collection and Shipping Instructions”), and has determined that it can perform the Test as requested (collectively “Acceptance”). If a Sample is not Accepted, the processing lab shall have no further liability or obligation to Client or the Eligible Individual or the ordering HCP or Provider in relation to such Sample, which shall be retained or destroyed in compliance with Applicable Laws.  Discarded, de-identified samples are disposed of in compliance with Applicable Law.

(d) Re-Testing. If Color fails to perform its Testing Services in accordance with the standards described in Section 1 of the Terms and Conditions, Client’s sole and exclusive remedy will be for Color to re-perform the affected Testing Services, provided that Color receives any additional Samples necessary to re-perform the affected Services. Client shall have ten (10) days from delivery of the Test result to inform Color in writing of any claim that the Services fail to comply with the Limited Services Warranty in Section 1 of the Terms and Conditions.

3.3. Test Kits

(a) Test Kits. All Test Kit orders through Color are subject to manufacturer availability. Color makes no warranty or representation regarding accuracy, effectiveness, expiration, or defects of Test Kits manufactured by third parties. Color does not refund Test Kit orders for any reason.  Color may select between any comparable Tests when fulfilling any  Test Kit order.

(b) Materials and Instructions. Client shall review, adhere to, and distribute to Eligible Individuals all test materials and instructions provided with the Tests (including disclosures of test type and manufacturer, test performance, result types, test reliability and limitations, potential benefits, and potential risks of harm and discomfort).

(c) Uploading Results. Client is responsible for: (i) ensuring results are accurately reported using the Platform, and (ii) managing collection protocols and standards related to Third-Party Tests and when utilizing a testing administrator.

3.4. Responsibilities and Compliance

(a) Testing and Eligible Individuals. Client shall cooperate with Color enable Color to securely identify Eligible Individuals. Color disclaims any responsibility or liability for Eligible Individual eligibility criteria or Client’s use of Test results. Client shall comply with all Applicable Laws in connection with eligibility criteria, availability of Testing Services, receipt and use of Test results, and handling and transmission of Eligible Individual information to Color, including, Applicable Laws relating to patient privacy, the transmission of personally identifiable information, and non-discrimination in employment, insurance, and other benefits.

(b) Reporting. The parties acknowledge and agree that COVID-19 is a reportable disease, and that Color shall promptly report or may direct its subcontractor(s) to promptly report test results to the applicable federal, state, county, and local public health reporting agencies as required by Applicable Law.

(c) Transit. Color is not responsible for any loss or damage incurred in shipping, or for any errors in shipping destination information provided or submitted by Client, Eligible Individuals, or other third parties.

4. TERMS AND CONDITIONS: PHYSICIAN ORDERING SERVICES AND CONSULTATIONS

(a) Test and Prescription Ordering Services. If Client elects Physician Ordering Services, where such services are offered and available, Color shall contract with Provider(s) to act as Client’s and/or Eligible Individual’s physician of record (a) to request Color Testing for, and for reporting of results directly to, Eligible Individuals and/or (b) for Testing-related telehealth consultations to determine, in the sole discretion of the Provider, if a Testing-related therapeutic prescription is appropriate (“Physician Ordering Services”).  In such cases, Color has been authorized to act as a billing agent for such Physician Ordering Services.  Neither the Providers providing such services nor the Physician Ordering Services shall be deemed a subcontractor of Color under this Agreement. Unless expressly authorized in writing by Color, Client agrees that it shall not, directly or indirectly, seek insurance reimbursement, in whole or in part, for any Testing or consultations for prescriptions requested/ordered through the Physician Ordering Services.

(b) Reporting. The parties acknowledge and agree that, if and where applicable, Color shall promptly report, or shall direct its subcontractor(s) and/or the Provider(s) to promptly report, all reportable events (including test results)  as required by Applicable Law to the applicable federal, state, county, and local public health reporting agencies. 

(c) Telehealth Consults. Color may provide access to consultations with affiliated or non-affiliated Providers for telehealth services, utilizing video, audio, and/or asynchronous methods (as applicable to the services available or provided).  Providers are solely responsible for Physician Ordering Services.  To access such services, Eligible Individuals must consent to any applicable terms and conditions required to access such services. 

5. TERMS AND CONDITIONS: DATA INTEGRATION SERVICES

(a) Scoping, Approvals and Payment. Data Integration Services are subject to mutually agreed upon scoping, final pricing and compliance approval.  Color’s standard Data Integration Services include bi-directional interface development, enabling receipt of test recipient unique identifier or order ID and transmission back of test results with identifier or order ID, sent using HL7 messages with SFTP delivery.

(b) Limitations. Additional services may be available at additional cost.  Color does not represent or warrant it can accept Client development requests, meet all requested Client timelines, or modify its standard integration services.  HL7 messages must conform to Color’s specifications and Client must provide SFTP hosting.

(c) Use. APIs used in connection with Data Integration Services are subject to the API Terms above (Section 2.2). Client agrees that Color may monitor API use.  Client agrees to make commercially reasonable efforts to safeguard the information transmitted via the API from unauthorized access or use.  The API may not be sublicensed to or used by any third-party (other than a Client-related entity or subsidiary).