Unless otherwise agreed to in a writing signed by an authorized officer of Clarity Group, Inc. (“Clarity Group”), the terms and conditions herein shall apply to the purchase of all goods and services related to the Healthcare SafetyZone® Portal and its various application Modules (“Portal”) acquired by the customer noted on the attached Subscription Form/s, and its affiliates, subsidiaries and joint ventures (“Subscriber”) from, or through, Clarity Group. These Terms and Conditions, the Subscription Form/s and any appendices noted thereon shall constitute the entire understanding and agreement of the parties (hereinafter, this “Agreement”) under which Subscriber orders or acquires goods and services relating to the Portal from, or through, Clarity Group (“Services”).
1.1 Fees. Subscriber shall pay to Clarity Group the applicable fees and other charges set forth in this Agreement and the Subscription Form.
1.2 Taxes. All amounts due and payable to Clarity Group hereunder are exclusive of any and all applicable duties and taxes based on this Agreement or the Services delivered. Subscriber shall be responsible for the payment of all such taxes, excluding taxes based on Clarity Group’s net income, or shall provide Clarity Group with an appropriate certificate of exemption or other legal basis for exemption. Subscriber agrees to cooperate with Clarity Group in determining and reporting the proper taxes hereunder.
1.3 Travel Expenses Subscriber shall be responsible for all out-of-pocket costs and expenses incurred for travel by Clarity Group in the performance of the Services under this Agreement, which amounts shall become due and payable by Subscriber within thirty (30) days of the date of the applicable invoice. All travel expenses shall receive prior approval from Subscriber.
2.1. Term. This Agreement shall remain in effect for a period of one (1) year from the effective date as listed on the Subscription Form (the “Initial Term”) and shall automatically renew for successive one (1) year periods thereafter, unless either party gives written notice of intent not to renew 60 days or more prior to the expiration of the Initial Term or then current renewal term.
2.2. Termination for Cause. At any time, including during the Initial Term, this Agreement may be terminated for cause in accordance with the following: Either party may terminate this Agreement immediately in the event that the other party files for bankruptcy protection, ceases doing business, becomes insolvent, makes an assignment for the benefit of creditors, or experiences a change of control to a competitor of the other party, defined as the transfer, whether by sale, merger or otherwise, of a controlling interest to any third party that engages in a line or lines of business substantially similar to the lines of business of the other party; and either party may terminate this Agreement if the other party commits a material breach of this Agreement, specifically including failure to pay for the Services hereunder, and does not cure such breach within thirty (30) days of receiving written notice thereof from the non-breaching party.
3.1 No liability for data entered. As Clarity Group exercises no control over the content and data submitted by Subscriber’s staff, under no circumstances shall Clarity Group be liable for any damages resulting from errors, omissions and inadequacies in the data.
3.2 Library Content. Clarity Group exercises no control over the library content. Under no circumstances shall Clarity Group be liable for any damages resulting from errors, omissions and inadequacies in the content. Further, under no circumstances shall Clarity Group be liable for any damages resulting from copyright infringement for content selected and used by the Subscriber.
3.3 Acceptable Use. Subscriber agrees not to use the Portal for illegal purposes or for purposes for which it is not intended. In the event that Clarity Group determines, in its sole discretion, that Subscriber or any employee or agent of Subscriber has committed, is in the process of committing or intends to commit a criminal act or otherwise has caused, is in the process of causing or intends to cause harm or injury through the use of the Portal, Clarity Group shall have the right to immediately suspend the use of the Portal or terminate this Agreement without any liability.
4.1 Required hardware and software. For the Subscriber, protocols to feed data to or accept the feed of data from Clarity Group, including a mechanism to download or upload files, must be established by Subscriber.
4.2 Internet access, browser and email. All individual users must have a compatible internet browser (as specified by Clarity Group) and have their own email account.
4.3 Responsibility to obtain. Clarity Group will not be financially responsible for any modifications to the Subscriber's or other users’ systems, software or procedures necessary to comply with the requirements herein.
5.1. Products. Clarity Group represents and warrants that it has the right to sell or license to Subscriber the goods and software delivered under this Agreement.
5.2. Services. Clarity Group represents and warrants that any Services that are to be performed by Clarity Group under this Agreement will be rendered in a professional and workmanlike manner and that such Services will be performed by persons with the proper skill, training and background.
5.3. Back up and Disaster Recovery Services. Clarity Group shall incorporate commercially appropriate back-up and disaster recovery mechanisms to ensure the reasonable availability of Services as defined herein.
5.4. Virus Warranty. Clarity Group covenants, represents and warrants to Subscriber that Clarity Group has not incorporated, and will not incorporate, into the software supporting its Services any viruses, worms, bombs, traps, Trojan Horses or other code designed to interrupt normal processing Services ("malicious codes") and that Clarity Group has taken and will continue to take reasonable precautions to prevent malicious codes from being introduced from sources other than Clarity Group. Subscriber hereby warrants that all upload materials shall be owned or licensed by subscriber and shall not adversely impact the Portal or violate the rights of any third parties.
5.5. Service Availability. Clarity Group warrants that it will take reasonable steps to ensure that the Portal will be accessible to Subscriber on a 24-hour per day basis. Specifically incorporated into this warranty, Clarity Group shall provide a service level commitment of 98.0% uptime to Subscriber with respect to use of Portal features. This provision shall not apply to: (a) regularly scheduled maintenance, patches and upgrades for the Services (b) a Force Majeure Event; (c) non-performance of hardware, software, ISP connections, and other equipment that is not provided by Clarity and (d) any loss of the availability of Services outside of the control of Clarity Group, including, but not limited to, any loss of service to an end-user due to access or the performance of that user’s Network or Internet Service Provider or any other Internet-related performance issue.
5.6. Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL CLARITY GROUP BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY UNDER THIS AGREEMENT OR OTHERWISE FOR (a) ANY LOSS OR DAMAGE CAUSED BY OR ARISING OUT OF THE UNAVAILABILITY OF THE GOODS, SOFTWARE OR SERVICES UNDER THIS AGREEMENT, OR CAUSED BY ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL OR RECKLESS IN NATURE; OR (b) ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF PROFITS, REVENUE, DATA, OR USE), REGARDLESS OF WHETHER CLARITY GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLARITY GROUP’S ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE PRICE PAID BY SUBSCRIBER TO CLARITY IN THE 12-MONTH PERIOD PRECEEDING THE DATE ON WHICH THE CLAIM AROSE.
5.7. Disclaimer. THE HEALTHCARE SAFETYZONE® SERVICES ARE PROVIDED, AND THE HEALTHCARE SAFETYZONE® SOFTWARE AND THE SYSTEM ARE MADE AVAILABLE, BY CLARITY GROUP TO SUBSCRIBER “AS IS,” AND CLARITY GROUP AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PORTAL SERVICES OR THE SOFTWARE, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
6.1. Confidential Information. Customer agrees that all information relating to the Portal, Modules and Services shall be held in confidence by Customer and shall not be disclosed to others without the prior written consent of Clarity Group, which may be withheld by Clarity Group in its sole discretion.
7.1. Proprietary Rights of Parties. Any technology system, services, process, know-how, methodology, software or other intellectual property, including any documentation relating thereto (“Intellectual Property”), to the extent owned by a party to this Agreement as of the date of this Agreement or acquired or developed by that party by any means on or after the date hereof (collectively “Proprietary Rights”) shall, to such extent, be and remain the exclusive property of that party, unless otherwise agreed in writing. None of the Intellectual Property created by Clarity Group pursuant to this Agreement shall be considered a ‘work for hire’ or jointly developed with Subscriber, unless so indicated by separate written agreement of the parties noting the separate Proprietary Rights thereto.
7.2. Third Party Proprietary Rights. Any Intellectual Property to the extent owned by any third party as of the date hereof shall, to such extent, be and remain the exclusive property of such third party, unless otherwise agreed in writing by such Third Party.
7.3. Knowledge and Process. Subscriber acknowledges that Clarity Group is in the business of providing Healthcare Risk Management for a wide variety of Subscribers and that Clarity Group will continue these activities.
Nothing in this Agreement shall be deemed to preclude or limit Clarity Group from using Intellectual Property developed in the provision of Clarity Group Services and /or developing any products, end-user services, software, or other deliverable materials for itself or other Subscribers (such as Report and Analysis Templates) so long as such services and/or products do not incorporate HIPAA Protected Health Information.
7.4. Subscriber’s data. In the course of providing the Services herein Clarity Group shall be in control of data inputted by licensed users of the Portal on behalf of Subscriber. Subscriber shall maintain a property interest in such data. In case of termination of this Agreement by either party, for any reason, Clarity Group agrees to provide Subscriber with a quote for professional services to provide a copy of the data, in Microsoft Excel format, inputted by licensed users of the system on behalf of Subscriber, that may be maintained at that time, and will destroy all other copies of such data on all active server storage devices, except for any portions thereof which were at any time mutually designated by Subscriber and Clarity Group as “shared” information. Clarity Group shall have a continuing right to use such “shared” data. Upon termination, Subscriber data contained in tape or other off-line temporary storage, maintained for Clarity Group Subscribers for redundancy purposes, will continue to be maintained under the confidentiality provisions herein until destroyed by reuse. Clarity Group has no duty whatsoever to deliver any parts of its programming or any other information regarding which Clarity Group claims a proprietary or intellectual property right.
7.5 Portal Ownership. To the extent that certain components of the Portal may be downloaded to Subscriber’s or a User’s computer as a result of accessing the Portal, as part of the Subscription Services, Clarity grants Subscriber a non-exclusive, non-transferable, revocable, limited license, with right to sublicense solely to its employee users, to use such Portal only in connection with the Subscription Services. Subscriber agrees that it will not rent, lease, sublicense, re-sell, timeshare or otherwise assign to any third party this Agreement or any of Subscriber’s rights or licenses to access the Portal or Clarity Group’s system.
7.6 No Reverse Engineering. Subscriber hereby agrees that it will not disassemble, decompile, reverse-engineer, modify or otherwise translate or attempt to duplicate or distribute or otherwise misuse any goods or software, in whole or in part, provided by Clarity Group to Subscriber hereunder.
7.7 Individual User Responsibility. Subscriber is responsible for all users of the
Portal and is responsible for maintaining passwords and access for those users the Subscriber deems appropriate. Subscriber is responsible for the security and privacy of their Intranet and connection made to the Portal. Subscriber is responsible for the Confidentiality required under any and all federal, state and/or local laws and regulations regarding patient information or incidents/events/variances entered into the Portal.
Any controversy, claim, dispute or disagreement arising out of or relating to this Agreement whether in contract or in tort or otherwise (“Dispute”) will be resolved, on a confidential basis, exclusively according to the following process, which either party may start by delivering to the other party a written notice describing the Dispute and the amount involved (“Demand”):
a) After receipt of a Demand, authorized representatives of the parties will meet at a mutually agreed upon time and place to try, in good faith using commercially reasonable efforts, to promptly resolve the Dispute by negotiation.
b) Any Dispute that remains unresolved after forty-five (45) days after the receipt of the Demand will be resolved exclusively and finally by binding arbitration. Such arbitration will be conducted by the American Arbitration Association (“AAA”) in Chicago, Illinois and will be initiated and conducted in accordance with the Commercial Arbitration Rules (“Commercial Rules”) of the AAA, except to the extent that such rules are inconsistent with the provisions set forth herein. The arbitrator(s) will have no authority to award punitive damages or any other monetary relief not measured by the prevailing party’s actual damages (adjustments for time value of money permitted), and will not make any decision inconsistent with the terms and conditions of this Agreement. Each Party will pay the fees of its own attorneys, expenses of witnesses, discovery and all other expenses and costs in connection with the presentation of such Party’s case (collectively, “Attorneys’ Fees”). The remaining costs of the arbitration, including without limitation, fees of the arbitrators, costs of records or transcripts and administrative fees (collectively, “Arbitration Costs”) will be borne equally by the Parties. Any award by the arbitrator(s) will be accompanied by a written opinion setting forth the findings of fact and conclusions of law relied upon in reaching the decision. The award rendered by the arbitrator(s) will be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction.
(c) Nothing in this Section will preclude a party’s recourse to a court of competent jurisdiction to (a) enforce the terms of, or an arbitration award under, this Section, (b) seek equitable relief necessary to protect its interests, or (c) recover specific property, including an action in replevin. Neither arbitration under this Section nor any legal action, regardless of its form, related to or arising out of this Agreement may be brought more than two (2) years after the cause of action first accrued, except if a Demand is made within forty-five (45) days before the end of this two (2) year period in which case the parties shall have sixty (60) additional days from the Demand to start arbitration under this Agreement. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, will govern the arbitrability of all Disputes. The arbitrators will allow such discovery as is appropriate to the purposes of arbitration in accomplishing a fair, speedy and cost-effective resolution of the Disputes. The arbitrators will reference the Federal Rules of Civil Procedure then in effect in setting the scope and timing of discovery. The Federal Rules of Evidence will apply in toto. The arbitrators may enter a default decision against any Party who fails to participate in the arbitration proceedings.
9.1. Construction. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Illinois.
9.2. Amendments and Waivers. Only a written instrument duly executed by each party may modify this Agreement. No waiver of any right hereunder shall operate as a waiver of any other right or of the same or a similar right on another occasion.
9.3. Entire Agreement. This Agreement and the Business Associate Agreement contain the entire understanding of the parties, and supersede all prior agreements and understandings relating to the subject matter hereof.
9.4. Severability. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
9.5. Counterparts. This Agreement is incorporated into the Subscription Form which may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
9.6. Force Majeure. Clarity Group Services hereunder are subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any government, war, acts of terrorism or other hostility, the elements, fire, explosion, power failure, equipment failure, labor dispute, stability or availability of the Internet or the inability to obtain necessary supplies and the like.
9.7 Publicity. Except as provided in this section, neither party shall, in connection with its activities under this Agreement, use the name, trade name, trademark or service mark of the other party in any way without the prior written consent of the other party, which consent may be withheld in the sole discretion of the party. Clarity Group shall have the right to (a) list Subscriber in its general listing of customers, and (b) issue one (1) press release regarding the general nature of the goods, software and services provided under this Agreement. Clarity Group may also use any Subscriber- provided logo on Subscriber's materials appearing in the on-line System.
9.8 Notices. Any notice or communication required to be given by either party shall be in writing and made by, hand delivery, national express delivery service or certified mail, return receipt requested, to the party receiving such communication. Unless otherwise instructed in writing, such notice shall be sent to the addresses of the parties noted on the Order Form of this Agreement, to the attention of the signatories hereto. Notice shall be deemed given on the date of hand delivery, or on the date of receipt if delivered by national express delivery service, or ten (10) days after depositing the notice in the U.S. mail as specified above.
9.9 Additional Terms. Any additional terms or conditions provided by Subscriber on any purchase order or other document shall not be binding on Clarity Group unless such purchase order or other document is explicitly accepted by Clarity Group in writing.
1. The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
2. Specific definitions:
Business Associate. “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Clarity Group, Inc.
Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Subscriber.
HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Business Associate agrees to:
(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
(b) 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 protected health information other than as provided for by the Agreement;
(c) Report to Covered Entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;
(d) Report to covered entity any use or disclosure in item (c) above within 5 business days of the discovery of the incident;
(e) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
(f) Make available protected health information in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
(g) Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;
(h) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
(i) To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
(j) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
1. Business Associate may only use or disclose protected health information as necessary to perform the services set forth in the Service Agreement.
2. Business Associate may use or disclose protected health information as required by law.
3. Business Associate agrees to make uses and disclosures and requests for protected health information consistent with Covered Entity’s minimum necessary policies and procedures.
4. Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity except for the specific uses and disclosures set forth below.
5. Business Associate may use protected health information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
6. Business Associate may disclose protected health information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
7. Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.
1. Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of protected health information.
2. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect Business Associate’s use or disclosure of protected health information.
3. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of protected health information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.
Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.
1. Term. The Term of this Agreement shall be effective as of the date this Agreement is signed by the Parties and shall terminate on the date Covered Entity terminates for cause as authorized in paragraph (b) of this Section or when all of the PHI provided by Covered Entity to Business Associate, or created/received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information in accordance with the termination provisions in this Agreement, whichever is sooner.
2. Termination for Cause. Business Associate authorizes termination of this Agreement by Covered Entity, if Covered Entity determines Business Associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within 90 days of discovery of the violation.
3. Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate shall destroy or return to Covered Entity all protected health information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity that the Business Associate still maintains in any form. Business Associate shall retain no copies of the protected health information.
4. When destruction of all protected health information is not possible, upon termination of this Agreement for any reason, Business Associate, with respect to protected health information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
(a) 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;
(b) Destroy or return to Covered Entity the remaining protected health information that the Business Associate still maintains in any form;
(c) 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;
(d) 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 under “Permitted Uses and Disclosures By Business Associate” which applied prior to termination; and
(e) Return to Covered Entity or, if agreed to by Covered Entity, 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.
1. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
2. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
3. Survival. The obligations of Business Associate under this Section shall survive the termination of this Agreement
4. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
5. Limitation of liability. In no event shall the aggregate liability of Business Associate and its licensors exceed the amounts actually paid by and/or due from the Covered Entity within the current License Term, giving rise to such claim. In no event shall either business Associate and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental or consequential damages (including loss of data, revenue, profits, use or other economic advantage) arising out of or in any way connected to a violation by Business Associate of its obligations in this Agreement, even if the party from which damages are being sought or such party’s licensor’s have been previously advised of such damages.
6. Transfer of Agreement. This Agreement shall automatically stay intact if Covered Entity or Business Associate undergo any name changes or if either party becomes partially or completely part of another company or entity, whether by merger, sale of assets or otherwise, and therefore be binding for such entities.
7. Electronic Signatures. The Parties agree that this Agreement is incorporated to the Subscription Form which shall be electronically signed. The Parties agree that the electronic signatures appearing on this Subscription Form are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
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