Master Subscription Terms and Conditions

YOU AGREE TO THE FOLLOWING MASTER SUBSCRIPTION TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE AND SERVICES OFFERED BY THE THERAPY BRANDS COMPANY IDENTIFIED DURING REGISTRATION OR DESIGNATED IN YOUR ORDER FORM (“COMPANY”, “WE” OR “US”). PLEASE SCROLL DOWN AND CAREFULLY READ ALL THE MASTER SUBSCRIPTION TERMS AND CONDITIONS CONTAINED HEREIN (THIS “AGREEMENT”) BEFORE USING THE SOFTWARE AND SERVICES DESCRIBED HEREIN.

BY DOING ANY OF THE FOLLOWING:

• CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF ANY REGISTRATION;
• USING THE SOFTWARE AND SERVICES;
• SIGNING AN ORDER FORM REFERENCING THESE TERMS; OR
• PAYING AN INVOICE WITH THESE TERMS

AS USED HEREIN, “YOU” MEANS THE CUSTOMER AND/OR ANY USER AS DEFINED UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO YOU AND/OR SUCH ENTITY. COMPANY AND CUSTOMER ARE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”

THIS AGREEMENT IS EFFECTIVE WHEN CUSTOMER CLICKS “I ACCEPT” OR OTHERWISE BEGINS USING THE SOFTWARE AND SERVICES OR OTHER SERVICES (WHICHEVER IS EARLIER) OR THE EFFECTIVE DATE SPECIFIED IN THE APPLICABLE ORDER FORM (“EFFECTIVE DATE”).

UNLESS OTHERWISE PROVIDED, THIS AGREEMENT ESTABLISHES THE TERMS AND CONDITIONS APPLICABLE TO ALL SOFTWARE, SERVICES, AND PRODUCTS THAT YOU ACCESS, HAVE ACCESSED, SUBSCRIBE TO, OR LICENSED THROUGH AN ORDER FROM ANY THERAPY BRANDS COMPANY SPECIFIED IN YOUR ORDER FORMS, PURCHASE SCHEDULES, OR SIMILAR DOCUMENT.

Product-Specific Terms

Practice Management System

Payers, Billing, and Overpayment. You acknowledge and agree that You are solely responsible for refunding any overpayment from a federal, state, or commercial payer, and are also responsible for complying with any unclaimed property laws. Unless specified separately in an Order Form, Purchase Schedule, Statement of Work, or other amendment to the Agreement, You shall be solely responsible for billing any claims with the appropriate payers. Further, unless specified separately in an Order Form, Purchase Schedule, Statement of Work, or other amendment to the Agreement, You shall be solely responsible for submitting reports and other data to applicable payers and other entities that may request it, such as auditors.

Clearinghouses, Interfaces, E-Prescribing and Other Transaction-based Services

1. Transaction Accuracy. If any information received from You and transmitted to a payer, pharmacy, or lab is not accurate as a result of a failure by Us or any Clearinghouse or third-party services provider, then our sole obligation and liability shall be to use commercially reasonable efforts to re-perform the transaction. Neither We, any Clearinghouse, nor any third-party services provider shall be liable for any actual or alleged monetary loss resulting from the use or inability to use any Software and Services or Clearinghouse Services that facilitate transactions. Any claims under this section must be asserted in writing within thirty (30) days after the transmission of the transaction on which such claim is based. You agree to promptly provide us any documentation reasonably requested to support such a claim under this section.
2. Transaction Services Limitations. Neither We nor any third-party services provider will have any (i) responsibility for determining the accuracy of any transaction, (ii) responsibility for settling disagreements or disputes between a payer, pharmacy, lab, and/or customer, or (iii) any liability for the acts or omissions of a payer, pharmacy, lab, or You.
3. E-Prescribing Services. By accessing the E-Prescribing Services, you attest that You are an individual, located in the United States or a United States territory, who: (i) is employed by or is an active member of the medical staff of a healthcare services provider or otherwise performs healthcare services; (ii) has reviewed the applicable terms and conditions of this Agreement; and (iii) is properly and duly licensed, registered, or is otherwise authorized as required by applicable law. E-Prescribing Services require the use of Third-Party Products. Further, by accessing any Software and Services designated as E-Prescribing Services, You hereby grant Company and its licensors a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display directory and directory-related information You may use while accessing such Software and Services.
   1. Surescripts Terms and Conditions (General).
      1. Surescripts Requirements and Materials. In addition to the other terms and conditions set forth herein, by accessing the E-prescribing Services, You agree to certain terms and conditions (the “Surescripts Terms”) required by our licensor, Surescripts, LLC (“Surescripts”), including those set forth in the Surescripts documentation (the “Surescripts Materials”). The Surescripts Terms and Surescripts Materials may may be changed by Surescripts at any time, with or without notice, by Us or Surescripts. Further, You understand and agree that Surescripts may limit to whom it sends and receives transactions based on the requirements of its data sources (e.g. labs, pharmacies, pharmacy benefit managers, etc), and that We must comply with those limitations.
      2. Surescripts Termination of Services. In the event Surescripts ceases to offer its Third Party Product or terminates its relationship with Us, We reserve the right to terminate the corresponding portion of the Software and Services designated on Your Order Form.
      3. Surescripts Termination for Certain Breaches of this Agreement. If You are not duly licensed or authorized under applicable law to use our Software and Services for E-Prescribing Services, or You have committee d an act or omission, which would constitute a material breach of this Agreement, Surescripts or We may terminate Your access to the E-Prescribing Services immediately and without notice to You.
      4. De-identification of PHI. Notwithstanding anything else set forth in any other document, You understand and agree that Surescripts may de-identify any and all Protected Health Information in accordance with the provisions of 45 CFR § 164.514(b). You acknowledge and agree that De-identified Data is not Protected Health Information, and grant Surescripts and Us a perpetual, irrevocable, royalty-free, non-exclusive worldwide, sublicensable, and fully assignable license to copy, aggregate, compile, modify, adapt, enhance, distribute (directly or indirectly), publish, display, transmit, create derivative works from, and otherwise use such De-identified Data for the purposes of providing E-Prescribing Services to You and similarly situated users.
      5. Commercial Messaging Prohibition. You may not attempt to capture, copy, store, open, examine, modify, add commercial or other messages to, repackage, distribute, license, sell or make any commercial use of any data or information provided through the E-Prescribing Services other than as expressly authorized in this Agreement and as permitted by the Business Associate Attachment between You and Us.
      6. Pharmacy Operations. If You have pharmacy operations, You shall maintain all data and information provided by Surescripts data sources on a partitioned server on the non-pharmacy side of an internal firewall that is separated or “walled off” from all other pharmacy activities. In addition, You shall not use, the data or information provided to You through E-prescribing Services to promote pharmacy services or to augment Your own medication history records.
      7. Surescripts Data. You agree and understand that all information obtained regarding Surescripts through the E-prescribing Services (“Surescripts Data”) constitutes Confidential Information under this Agreement. Surescripts Data may only be used in the course of a Treatment event and for no other purpose.
      8. Surescripts Data and the Designated Record Set. To the extent that Surescripts Data becomes part of a patient’s designated record set, such data no longer constitutes Surescripts Data under this Agreement. Upon its incorporation into the Designated Record Set, it becomes Customer Data under this Agreement.
      9. Feedback to Surescripts. If You submit to Surescripts by mail, email, telephone, or otherwise, suggested or recommended changes to its services or the Surescripts Materials, including without limitation new features or functionality relating thereto, or any ideas, comments, recommendations, suggestions, questions, or the like, Surescripts is free to use such feedback irrespective of any other obligation or limitation between the Parties governing such feedback. For avoidance of doubt, this does not require Surescripts to use any feedback.
      10. Licensed Users Only. You may not access the E-Prescribing Services if You are not licensed to issue prescriptions.
      11. Improper Inducement. You are prohibited from permitting or causing Your prescribing system to suggest certain medications or pharmacy systems based on non-clinical criteria. Notwithstanding the above, nothing set forth in this Agreement shall prohibit Us or You from providing clinically relevant decision support, or information indicating the pricing or availability of certain drugs at different pharmacies, so long as such information is not based on any improper inducement, kickback, or bribe, whether direct or indirect.
      12. Further Distribution. Healthcare providers may not distribute the E-Prescribing Services, and any such attempt to distribute the E-Prescribing Services by healthcare providers shall be null and void and have no effect.
      13. Data Transfer Limitations. You represent and warrant that You do not currently, and covenant that You will not in the future, physically or electronically send or store Surescripts Data, which includes PHI or any other individually identifiable information, outside of the United States of America.
   2. Surescripts Terms and Conditions (Prescribers).
      1. Permitted Use Cases. You may use the E-Prescribing Services, including those for routing prescriptions, checking eligibility for prescriptions, and checking a patient’s medication history in order to enter prescription orders that are electronically transmitted from a prescribing system to a pharmacy system. You may not use the E-Prescribing Services for any other purpose.
         1. Medication History for Ambulatory Services. Solely in the course of Treatment of a specific patient in a scheduled or walk-in outpatient visit or another specific outpatient Treatment event, You may access “Medication History for Ambulatory Services” as a part of the prescription routing workflow, for the purpose of reducing duplicating medication therapies, to reduce the risk of adverse reactions between the new prescription and the patient’s current prescriptions, or to help inform how medications may be adjusted. You may not access Medication History for Ambulatory Services on behalf of any health plan.
      2. Specifically Prohibited Use Cases.
         1. Eligibility Services. The eligibility services for E-Prescribing Services may not be used on a stand-alone basis and may only be used in connection with a prescription issued pursuant to a Treatment event. If You only accept patient payments and do not accept any form of insurance, You are prohibited from accessing the eligibility services for E-Prescribing Services because they are not necessary to support the Treatment of the patient.
      3. Your Professional Judgment. You agree, understand, and acknowledge that the prescription benefit and medication history information provided via the E-Prescribing Services is not complete or accurate, and that neither Surescripts nor any data source provides any representations or warranties with respect to the accuracy or completeness of the prescription benefit or medication history information, and You release and hold harmless, Us, Surescripts and any third party providing prescription benefit or medication history information from any liability, cause of action, or claim related to the completeness or lack thereof of the prescription benefit or medication history information. In addition, You shall confirm the accuracy of the prescription benefit and medication history information with Your patients prior to providing any medical services based thereon, and You shall use Your professional judgment in the provision of care.
      4. Electronic Prior Authorization Requests. You may access electronic prior authorization services for electronic prescriptions solely for the purpose of submitting a PAInitialRequest (prior authorization initial request) in conjunction with issuing an electronic prescription through the E-Prescribing Services. Electronic prior authorization requests may not be accessed for the purpose of a patient’s hospital stay or for any other purpose.
         1. THE ELECTRONIC PRIOR AUTHORIZATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” TO YOU WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES ARE DISCLAIMED BY SURESCRIPTS AND US AS IT RELATES TO THE ELECTRONIC PRIOR AUTHORIZATION SERVICES. IN ADDITION, SURESCRIPTS AND OUR SOLE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY, FOR CLAIMS OF ANY TYPE ARISING FROM THE USE OF THE ELECTRONIC PRIOR AUTHORIZATION SERVICES SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ANY ERRORS OR OMISSIONS IN THE ELECTRONIC PRIOR AUTHORIZATION SERVICES AS SOON AS POSSIBLE AFTER SURESCRIPTS’ DISCOVERY OF ANY SUCH ERROR OR OMISSION OR WRITTEN NOTIFICATION TO SURESCRIPTS THEREOF BY US.
      5. Clinical Direct Messaging. You may access the “Clinical Direct Messaging Services” through the E-Prescribing Services to send and receive Clinical Direct Messages to any authorized participant on the Surescripts Network where such Clinical Direct Messages (i) contain clinical or administrative information about a specific patient used for healthcare payment, Treatment, or operations; (ii) are not structured messages except to the extent necessary to transmit an attachment and as necessary for address fields; (iii) are not limited to a specific message type or use case; and (iv) do not require message type or use case-specific workflow integration into the electronic health or medical record. This provision only applies to Clinical Direct Messaging Services offered through the E-Prescribing Services. You are prohibited from sending Clinical Direct Messages to an entity that is not a participant on the Surescripts Network when accessing Clinical Direct Messaging Services through the E-Prescribing Services.

Third-Party Products

You acknowledge that certain portions of the Software and Services (e.g. E-Prescribing Services, lab or other exchange interfaces), contain third-party products and services (“Third-Party Products”). We may add and/or substitute functionally equivalent products for any Third-Party Products in the event of product unavailability, end-of-life, or changes to software requirements. We make no warranty with respect to any Third-Party Products. Your sole remedy with respect to such Third-Party Products shall be pursuant to the original licensor’s warranty, if any, to Us, to the extent permitted by the original licensor. Third-Party Products are made available on an “AS IS, AS AVAILABLE” BASIS. You agree that Company is not responsible or liable for Third-Party Products and Your use of Third-Party Products is at Your own risk and subject to any additional terms and conditions of use for such Third-Party Products. The licensor or owner of any applicable Third-Party Product may require You to adhere to certain terms and conditions applicable to parties using its Third-Party Product and by accessing Third-Party Products You agree to do so. Those terms and conditions may be modified by such third party in its sole discretion. Further, You understand and agree that some providers of Third-Party Products use data of other third party sources that may limit to whom they may send and receive transactions (e.g. electronic prescriptions, labs, pharmacies, pharmacy benefit managers, etc.), and that such third party and We must comply with that limitation. In the event any third party ceases to offer its Third-Party Product or terminates its relationship with Us, We reserve the right to terminate the portion of the Software and Services included on Your Order Form that relates to or relies on such Third-Party Product, without penalty.

Mobile Applications

e may make our Software and Services available through a mobile device (i.e. a mobile phone, tablet, etc.). To use any such mobile applications, You must have a mobile device that is compatible with the applicable mobile application. We do not warrant that the mobile applications will be compatible with any mobile device used by You or any other User. You may use mobile data in connection with the mobile applications and may incur additional charges from Your wireless provider for these services. You agree that You are solely responsible for any such charges. Prior to installing any mobile application, We may require You to agree to additional terms and conditions, including those of third parties, like an app store. Further, We may from time to time issue upgraded versions of the mobile applications, and may automatically upgrade the version of the mobile application that You are using on the applicable mobile device. You consent to such automatic upgrading on such mobile device.

Telehealth

IN ADDITION TO THE RESTRICTIONS SET FORTH IN THIS AGREEMENT INCLUDING THOSE INCLUDED UNDER HEALTHCARE PROVIDERS’ RESPONSIBILITY, YOU AGREE NOT TO USE ANY TELEHEALTH SERVICES FOR EMERGENCY MEDICAL NEEDS.

Trials of Products

Subject to the terms of the Agreement, You may try some of our Software and Services before You license them. The duration of the trial period will depend on the Software and Service that You license and will be shown to You during the registration process or contained in an Order Form. WE RESERVE THE RIGHT TO CANCEL YOUR ACCESS TO ANY TRIAL TO OUR SOFTWARE AND SERVICES AT ANY TIME AND FOR ANY REASON. ALL SOFTWARE AND SERVICES PROVIDED PURSUANT TO A FREE TRIAL ARE PROVIDED ON AN AS-IS BASIS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL, OR WRITTEN, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS TO THE ACCURACY OR USEFULNESS OF THE SOFTWARE AND SERVICES PROVIDED PURSUANT TO A TRIAL, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM, PAST PRACTICE, OR TRADE USE. THIS SECTION SUPERSEDES ANY OTHER INDEMNIFICATION OR LIMITATION OF LIABILITY PROVISIONS IF THESE TERMS ARE AGREED UPON FOR A FREE TRIAL. THIS SECTION DOES NOT APPLY TO PAID SUBSCRIPTIONS AND SHALL NOT APPLY ONCE A FREE TRIAL BECOMES A PAID SUBSCRIPTION. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA, OR DATA USE, ARISING OUT OF OR RELATED TO A FREE TRIAL OR ANY AGREEMENT RELEATED THERETO, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO CUSTOMER FOR A FREE TRIAL UNDER THE AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNT OF $100. ANY DATA THAT YOU ENTER INTO OUR SOFTWARE AND SERVICES, AND ANY CONFIGURATIONS MADE TO THEM BY YOU IN A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO OUR SOFTWARE AND SERVICES BEFORE THE END OF THE TRIAL PERIOD. TRIAL SOFTWARE AND SERVICES ARE NOT INTENDED FOR FULL PRODUCTION USE, BILLING, OR CHARTING. ADDITIONAL RESTRICTIONS MAY APPLY.

Your Data

1. Customer Data. As between You and Us, all right, title, and interest in the Customer Data belongs to and is retained solely by You. You warrant that You have the right to permit Company to use, store, disclose and process such Customer Data to deliver the Software and Services or to perform any Professional Services, Clearinghouse Services, E-Prescribing Services, Payment Services, or other services contemplated by the Software and Services.
2. License to Data. You hereby grant Company and its affiliates a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display Customer Data (including Customer Data that is created, collected or generated by the Software and Services or Company using the data that Users submit), subject to the limitations regarding PHI as set forth in the Business Associate Attachment. Such uses include, but are not limited to, improving our products, marketing our products and services to You (including but not limited to the Software and Services, Professional Services, Clearinghouse Services, E-Prescribing Services, and Payment Services), conducting analyses of our customers to identify product or service needs, or conducting research or engaging in public health activities. Such license shall also permit us to use or modify Customer Data for the purposes of creating De-identified Data. We intend to use De-identified Data, aggregated with the de-identified data of other customers, to enable us to provide our customers with more targeted, accurate, and useful insights. You acknowledge that Company’s right to use De-identified Data includes the right to create and distribute derivative works using such De-identified Data and will survive expiration or termination of Your Agreement and/or account with the Company.
3. Data from Payment Processors. Notwithstanding anything to the contrary herein, or in any payment processing agreement between You and the payment processor (including Vantage, Stripe or other supported payment processor), You also hereby grant Company and its affiliates a non-exclusive, worldwide, irrevocable, perpetual, royalty free, fully paid-up, assignable, and sublicensable (through multiple tiers) license, authority, and permission to obtain, copy, and use, at Company’s request, without notice to You, User data received from payment processors, banks, card and ACH processors and gateway providers, which support the Software and Services, for purposes of providing You the Software and Services and Payment Services, and to develop, improve, and market the Company’s products and services (including the Software and Services and Payment Services).
4. Additional Rights to Data. Although Company has no obligation to screen, edit or monitor User data, we may delete, remove or suspend the use of User data at any time and for any reason. By accessing or using the Software and Services, You consent to the processing, transfer and storage of information about You and Users in and to the United States and other countries, where Users may not have the same rights and protections as provided under local law.
5. De-Identified Data. Ownership of and all rights associated with De-identified Data, including without limitation, those associated with Intellectual Property, shall vest with Us upon the de-identification of the data. We may use, create, modify, aggregate, and disclose De-identified Data for any purpose not prohibited by law.
6. Feedback License. We own all right, title, and interest in and to any suggestion, enhancement, request, recommendation, or other feedback related to the Software and Services provided by You. Feedback shall not be considered Your Confidential Information pursuant to the Agreement.

Your Patients’ Data: Business Associate Attachment (Covered Entity Customers Only)

This Business Associate Attachment (the “Attachment”) applies to the governance and use of Protected Health Information that You provide us in the course of our performance of the Agreement. This Attachment is subject to the terms and conditions set forth in the Agreement.

1. Definitions

   Catch-all definitions:

   The following terms used in this Attachment shall have the same meaning as those terms have in the HIPAA Rules: Breach, Breach Notification, Data Aggregation, Designated Record Set, De-Identified Information, Discovery, Disclosure (Disclose), Electronic Protected Health Information, Electronic Transactions Rule, Enforcement Rule, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Required By Law, Sale, Secretary, Security Incident, Security Rule, Covered Entity, Transaction, Unsecured Protected Health Information, and Use.

   Specific definitions:

   1. “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 the Company.
   2. “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 Customer.
   3. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
   4. “HITECH Act” shall mean the Health Information Technology for Economic and Clinical Health Act.
   5. “Protected Health Information” or “PHI” shall have the same meaning as set forth in 45 CFR § 160.103.
2. Obligations and Activities of Business Associate

   We agree to:

   1. Not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required by Law;
   2. 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 Attachment;
   3. Within ten (10) calendar days upon “Discovery,” as that term is defined under the HITECH Act, report to You any Use or Disclosure of Protected Health Information not provided for by the Attachment of which We become aware, including Breaches of Unsecured Protected Health Information as required at 45 CFR § 164.410, and any successful Security Incidents pertaining to PHI of which We become aware. We hereby provide You with notice in this Section 2(c) of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents, which include, but are not limited to, pings and other broadcast attacks on our firewall, port scans, unsuccessful log-in attempts, denials of service attacks and any combination of the above, so long as such incidents do not result in unauthorized access, Use or Disclosure of Protected Health Information. The Parties agree that no further notice of unsuccessful Security Incidents is required. Business Associate will not be considered in violation of this Attachment when subject to a Law Enforcement Delay;
   4. In accordance with 45 CFR §§ 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors or affiliates that create, receive, maintain, or transmit Protected Health Information on Your behalf agree to the same restrictions, conditions, and requirements that apply to Us with respect to such information;
   5. Provide access, at Your request, to Protected Health Information in a designated record set to an individual in order to meet the requirements of 45 CFR § 164.524;
   6. Amend Protected Health Information in a Designated Record Set at Your request and under Your direction so that You may meet Your obligations under 45 CFR § 164.526;
   7. Maintain, and within ten (10) calendar days of Your written request, make available the information required to provide an accounting of Disclosures to You as necessary to satisfy Your obligations under 45 CFR § 164.528;
   8. Make our internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules;
   9. Not allow access to substance use disorder patient records except as expressly provided under 42 CFR Part 2; and
   10. Not participate in any Sale of Protected Health Information.
3. Permitted Uses and Disclosures by Business Associate
   1. We may Use or Disclose Protected Health Information as necessary to perform the services set forth in the Agreement and any Statement of Work between You and Us.
   2. We may Use or Disclose Protected Health Information as Required by Law.
   3. We may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by You.
   4. We may Use Protected Health Information for the proper management and administration of our organization or to carry out our legal responsibilities.
   5. We may use, analyze, and disclose Protected Health Information for the public health activities and purposes set forth at 45 CFR § 164.512(b).
   6. We may de-identify any and all Protected Health Information in accordance with the provisions of 45 CFR § 164.514(b). You acknowledge and agree that De-identified Information is not Protected Health Information, and we may use such De-identified Information for any lawful purpose.
4. Your Obligations
   1. You shall notify us 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 our Use or Disclosure of Protected Health Information.
   2. You shall notify Us 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 our Use or Disclosure of Protected Health Information.
   3. You shall notify us of any restriction on the Use or Disclosure of Protected Health Information that You have agreed to or are required to abide by under 45 CFR § 164.522, to the extent that such restriction may affect our Use or Disclosure of Protected Health Information.
   4. You shall be solely responsible for any determination that We should or should not disclose Protected Health Information to Your patients, their representatives, or any third-party purporting to represent Your patient(s).
   5. You shall obtain any consent and/or authorization that may be required by 45 CFR § 164.506, § 164.508, 42 CFR Part 2, or any other applicable state or federal law or regulation prior to furnishing us the PHI pertaining to an individual.
   6. You shall implement appropriate administrative, technical, and physical safeguards to protect the privacy and security of PHI. You shall reasonably safeguard PHI from any intentional or unintentional use or disclosure that is in violation of the Privacy Rule, and limit incidental uses or disclosures made pursuant to otherwise permitted or required disclosures.
5. Notification of Breach

   If We discover a Breach of Unsecured Protected Health Information, then We shall, within ten (10) calendar days following Discovery, notify You of such breach in accordance with this Section. We will not be considered in violation of this Attachment when subject to a Law Enforcement Delay.

   1. The notification shall include, to the extent possible, the identification of each individual whose Unsecured Protected Health Information has been, or is reasonably believed by Us to have been, accessed, acquired, used, or disclosed during the Breach.
   2. We shall provide You with any other available information that You are required to include in a notification to the individual under 45 CFR § 164.404(c), and any information that is not then available promptly after such information becomes available. Information to be provided includes, to the extent possible:
      1. A brief description of what happened, including the date of the Breach and the date of Discovery of the Breach, if known;
      2. A description of the types of Unsecured Protected Health Information that were involved in the Breach (such as whether full name, social security number, date of birth, home address, account number, diagnosis, disability code, or other types of information were involved); and
      3. A brief description of what Business Associate is doing to investigate the Breach, to mitigate harm to Individuals, and to protect against any further Breaches.
6. Permissible Requests by Covered Entity

   You shall not request Us 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 You.

7. Term and Termination
   1. Term. The Term of this Attachment shall be effective as of the Effective Date and shall terminate upon termination of the Agreement between the Parties, or on the date either Party terminates this Attachment for cause as authorized in paragraph (b) of this Section, whichever is sooner.
   2. Termination for Cause. Upon written notice, either Party may terminate this Attachment if that Party reasonably determines that the other has breached a material term of this Attachment and such breach cannot be reasonably cured. If an alleged material breach of this Attachment is curable, then the non-breaching party must provide the breaching party with written notice of the alleged breach. The breaching party shall have thirty (30) days from such notice to cure the alleged breach. Failure to cure a breach within the 30-day cure period shall be grounds for immediate termination of this Attachment.
   3. Our Obligations Upon Termination. Upon Your written request following a termination of this Attachment for any reason, We shall use commercially reasonable efforts to, within ninety (90) calendar days, return (through delivery of a data export or otherwise providing Customer with data export capabilities through the Software and Services) to You and then destroy all Protected Health Information held by us in any form that we have received from You, created, maintained, or received as a Business Associate on Your behalf. If return and destruction of such Protected Health Information is not feasible, then We agree to extend any and all protections, limitations and restrictions contained in this Attachment to any Protected Health Information retained after termination of this Attachment, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the Protected Health Information infeasible.
8. LIMITATION OF LIABILITY.

   NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED) UNDER THIS ATTACHMENT TO THE OTHER FOR ANY CLAIM WILL BE SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE GENERAL TERMS AND CONDITIONS OF THE AGREEMENT.

9. Miscellaneous
   1. Regulatory References. A reference in this Attachment to a Section in the HIPAA Rules means the Section as in effect or as amended.
   2. Interpretation. Any ambiguity in this Attachment shall be interpreted to permit compliance with the HIPAA Rules.

Your Responsibilities.

1. Customer Equipment. You are responsible for obtaining, deploying, and maintaining all computer hardware, software, modems, routers, or other equipment necessary for Your Users to access and use the Software and Services as described in the Documentation. If any hardware, equipment, or third-party software supplied by You impairs Your system, Your use of the Software and Services, or causes the Software and Services to fail, or not to operate properly in connection with Your system, We shall have no liability for such impairment, failure, or improper operation.
2. Users’ Compliance. You assume sole responsibility and liability for any Users’ compliance with the terms and conditions of this Agreement. You further assume sole responsibility and liability for results obtained from the use of Protected Materials and for conclusions drawn from such use. We shall have no liability for any claims, losses, or damages arising out of or in connection with Your or any of Your Users use of the Protected Materials, any Third-Party Products, services, software, or websites that are accessed via links from within the Software and Services. Where the Software and Services make suggestions, including without limitation the product of artificial intelligence and/or machine learning algorithms, outcome measures, assessments, or any other aspect of the Software and Services, it is Your responsibility to review and evaluate such suggestions for accuracy, relevance, and applicability. You are solely responsible for any required edits to ensure the accuracy of documentation. Any suggestions should not supersede sound clinical judgment or other professional expertise.
3. Healthcare Providers’ Responsibility. You acknowledge and agree that We are not a Healthcare Provider. You further agree and acknowledge that We do not provide 24/7, synchronous, or emergency alerting. In the event that Software and Services or any database, report, or information generated from the Software and Services is used in connection with any diagnosis or treatment, You accept all liability for such diagnosis or treatment. You agree that the sole and exclusive responsibility for any medical decisions or actions with respect to a patient’s medical care and for determining the accuracy, completeness, or appropriateness of any diagnostic, clinical, or medical information provided by the Software and Services and any underlying database resides solely with You and the responsible Healthcare Provider. We assume no responsibility for how such information is used. The choice with respect to when and how to use the Software and Services and any related database is Your responsibility and the same is to be used at Your discretion. You understand and agree that the responsibility for medical treatment rests with You. None of the databases and Software and Services provided hereunder are intended in any way to suggest any procedures, medication, or physical findings for the patient or eliminate, replace, or substitute for, in whole or in part, Your judgment and analysis of a patient’s condition. You are wholly responsible for obtaining all required patient consents or other authorizations necessary for Your or any Users’ use of the Software and Services, including, without limitation, clinical data exchange or population health management services. You represent, warrant, and covenant that You shall comply with all relevant laws relating to the privacy and security of PHI and Personally Identifiable Information (“PII”).

Revenue Cycle Management Statement of Work

If You have chosen to subscribe to revenue cycle management services (“RCM Services”), then this Statement of Work shall apply in addition to the Agreement. Any capitalized terms used but not defined herein shall, if defined in the Agreement, have the meanings ascribed to them in the Agreement.

1. Implementation.
   1. Billing Profile. Upon subscribing for RCM Services, You shall provide Us with Your Billing Profile. You are required to submit Your Billing Profile to Company within fourteen (14) calendar days after the effective date of Your Order Form.
   2. Test Environment. Within a reasonable amount of time of receipt of the Billing Profile, We will create a database and configure our Software and Services to support Your and our use of it for documenting care provided and billing insurance (the “Test Environment”).
   3. Acceptance of Test Environment. Upon completing the Test Environment, We shall provide You with access credentials so You may inspect the Test Environment to ensure it is a complete and accurate representation of Your billing configuration. You shall have three (3) business days after receipt of such access credentials to provide written acceptance of the Test Environment’s completeness and accuracy, which shall not be unreasonably withheld. If You fail to provide written acceptance after three (3) business days, You shall be deemed to have accepted the Test Environment’s accuracy and completeness.
   4. Training. After Your acceptance of the Test Environment, You shall schedule training on the features and functions of our Software and Services. Such training shall consist of one 1-hour remote session(s) per week with a project manager, at times, dates, and frequency to be determined by Us. You will receive up to ten (10) training sessions in connection with Your RCM implementation that will expire on the earlier of (i) the Go Live Date, or (ii) sixty (60) calendar days after the effective date of Your Order Form. Additional training hours are available at our then current list-rate for Professional Services. We shall provide training on the following capabilities:
      • Adding & updating Staff profiles
      • Adding & updating Client profiles
      • Creating Service Lines
      • Creating Clinical Documents
      • Using Reports
      • Using ancillary product areas
      • Workflows
   5. Production Environment. After Your acceptance of the Test Environment, We shall complete and submit Electronic Remittance Advance (“ERA”) and Electronic Data Interchange (“EDI”) applications for each of Your payers. Upon approval by the payers, We shall submit test claims to the payers. The configuration of our Software and Services once each payer has approved a minimum number of test claims, as determined within our reasonable discretion, shall be the “Production Environment” for the performance of the Services under this Statement of Work. The date You accept the Production Environment shall be the “Go Live Date.”
   6. Acceptance of Production Environment. We shall notify You once the Production Environment is available. You shall have three (3) business days to inspect the Production Environment to ensure all payers and procedure and diagnosis codes are visible and usable by Your appropriate staff. If You fail to provide written acceptance after three (3) business days, You will be deemed to have accepted the Production Environment’s accuracy and completeness.
   7. You acknowledge and agree that if the information set forth in the Billing Profile materially differs from Your actual billing practices and information (e.g. the number of payers and which payers You submit claims to), then We shall have the right to immediately adjust our Implementation Fee.
2. The Services.
   1. Billing.
      1. Claims Submission. We will submit claims on Your behalf to Medicaid, Medicare, and all commercial payers electronically on a regular basis, as reasonably determined by us based on legal requirements, applicable regulations, payer requirements, and our own processes. All clean bills will be submitted when you have selected the appropriate system status, (e.g. “Ready to be processed,” “Awaiting Submission,” “Billable,”). We will then submit them on a timely basis, consistent with then-current industry standard practice.
      2. Paper Claims Submission. We do not submit paper claims to payers unless (a) required as part of an appeal process for a denial or an audit and/or (b) the payer does not accept electronic submissions. You will pay for postage if paper billing must be submitted. Without limiting anything else set forth in this Agreement, in the event that We submit any paper claims on Your behalf, such claims are submitted without any warranty or representation as to whether You will be reimbursed or the timeliness of the claims’ submission. We expressly disclaim any potential or actual damages due to delay with respect to paper claims.
      3. Manual Claims. In the event that We are required to manually input a claim into a payer’s portal or other electronic repository, We will charge You our then current list rate for such RCM Services.
   2. Payer Follow up and Denial Management.
      1. Review of Clearinghouse Edits. We will review all clearinghouse edits and payer rejections reported via a u277 file in a timely manner. We will review the rejection and take any appropriate steps to correct the claim, except for modifying clinical Claim Data, and resubmit it for processing. Items that require Your assistance will be forwarded to You for review and feedback. You agree to provide feedback within five (5) business days.
      2. Claim Denial and Review. We will perform an initial review on all denied claims within a timely manner of the payer posting such denial to determine the appropriate steps to appeal the denial when possible. The initial review will consist of the identification of the specific reason for the denial and a determination of whether the claim is re-billable and/or additional information is required from You. For avoidance of doubt, such review shall not consist of any modification of the clinical Claim Data.
      3. Requests for Additional Information (“RFI”) and Claim Data Corrections. If additional information is required to support the appeal of a denial, You agree to provide this information within five (5) business days of receiving written notification from Us to allow for timely processing and appeal. If You fail to provide the data that We request, We shall not be responsible for timely filing issues related to the appeal. Requests for information may include, but not be limited to, information regarding errors in authorization, demographic information (DOB/Gender), diagnosis, supervision, procedure codes and/or modifiers, and medical necessity. If we request You to correct any Claim Data necessary to appeal or rebill a denied claim, then You shall correct such Claim Data within five (5) business days, and if You fail to do so, We shall have no responsibility or liability relating to any timely filing issues with respect to such claim.
      4. Appeal Submission & Rebilling. Once We have received all requested Claim Data and additional information from You to appeal or manage a denial, We will submit the appeal on Your behalf in a timely manner, or rebill the claim, depending on the payers’ process and nature of the denial.
   3. Payment Posting & Reporting.
      1. ERA Posting. We will upload and process Electronic Remittance Advice (ERA) files received through clearinghouse connections. We will post all cash receipts from an 835 or paper remit to AR and reconcile services. You are responsible for providing Us with copies of paper remits. We will post all cash receipts on a timely basis. We shall not be responsible for posting any cash receipts or ERA files whose underlying dates of service are prior to the effective date of this Statement of Work.
      2. Reconciliation. In the event You provide us with access to Your deposit accounts at Your bank, We will reconcile all payments reported by 835 files as part of the daily payment posting process. Discrepancies will be reported to Us for review. We will contact the payer in question for payment status after a 5-day waiting period. 835 files will not be finalized until discrepancies are resolved. You will provide view access to the targeted bank account(s) and grant approval for a daily extract of deposit information, if available, from Your bank or send a copy of Your deposit log weekly at a minimum. We will not reconcile Your bank account to verify invoicing. Our reconciliation only includes daily deposit verification and balancing for posting. Deposit log reconciliation does not apply to aged AR clean-up.
      3. Reporting. We will provide You with standard reports generated from our Software and Services. Reports include, but are not limited to, basic insurance submission and payment reports, accounts receivables, and patient payment and ledger reports. Additional reports may be available based on Your claims volume or for an additional charge.
3. Customer Obligations.
   1. Portal Access. Upon executing an Order Form for RCM Services, but no later than forty-eight (48) hours thereafter, You shall provide us with access to the websites, accounts, portals, etc., through which You manage Your relationships with Your payers. Time is of the essence with respect to this provision. Many payers limit the ability to check claim status via telephone calls. Therefore, failure to provide portal access in a timely manner may cause timely filing issues for which We are not responsible.
   2. Claim Data. We will submit claims using the data submitted by You through our Software and Services (“Claim Data”). Claim Data includes, but is not limited to, diagnostic codes, billing codes, and payer information. Customer is responsible for ensuring the medical necessity, appropriateness of any services provided to its patients and/or clients, and the accuracy and completeness of the codes submitted through our Software and Services.
   3. Claim Data Submission. Customer will submit all necessary Claim Data to Us within five (5) business days of providing any reimbursable service to a client or patient. A failure to comply with this section may lead to payment delays and potential timely filing issues.
   4. Authorizations. You shall obtain and provide Us with all authorizations necessary to obtain reimbursement from any applicable payer for any covered services provided to Your patients or clients.
   5. Accuracy. YOU ACKNOWLEDGE THAT WE ARE RELYING ENTIRELY ON THE CLAIMS AND BILLING INFORMATION SUPPLIED BY YOU IN SUBMITTING CLAIMS ON YOUR BEHALF. YOU REPRESENT, WARRANT, AND COVENANT THAT ANY AND ALL SUCH CLAIMS AND BILLING INFORMATION IS ENTIRELY ACCURATE AND TRUTHFUL TO THE BEST OF YOUR KNOWLEDGE, AND YOU SHALL INDEMNIFY AND HOLD US HARMLESS FROM ANY AND ALL CLAIMS, PENALTIES, FINES OR DAMAGES RELATING TO THE INACCURACY OF SUCH CLAIMS OR BILLING INFORMATION.
   6. Patient Eligibility. You will be responsible for reviewing all patient eligibility information and adding/maintaining Your insurance records.
   7. Reasonable Assistance. You shall timely perform such tasks and provide such assistance to Us as is reasonably necessary for Us to perform the RCM Services, including, but not limited to, providing relevant or requested insurance payer or patient correspondence, along with access to payer portals. Failure to comply with this provision may result in suspension or termination of RCM Services.
   8. Payer Configuration Changes. You shall immediately inform us, through the submission of a support ticket, of any changes, additions, or other modifications to Your payers’ requirements, such as the addition or removal of certain services or modifiers (“Payer Configuration Changes”). You shall provide detailed documentation regarding Payer Configuration Changes. Company shall have up to thirty (30) business days upon receipt of the ticket to review, apply, and test the Payer Configuration Changes.
   9. New Payers. You shall notify us promptly of any new payers You begin accepting. We shall configure the Software and Services to perform EDI and ERA transactions with such new payers within thirty (30) business days of receiving such notification.
4. Excluded Services.

   Any services or obligations not specifically set forth in this Statement of Work are excluded. For example, but without limitation, we shall not perform the following services:

   1. Patient Responsibility. Managing patient collections or billing patients, including, without limitation:
      • Patient payment posting unless remit received from You or list from lock box.
      • Patient statements unless specifically contracted for in Your Order Form.
      • Patient eligibility checks unless specifically contracted for in Your Order Form.
      • Benefit verification services unless specifically contracted for in Your Order Form.
      • Patient authorizations.
      • Patient liability follow up or serve as Customer’s patient call center.
   2. Custom Reports. The configuration of any custom reports, such as, but without limitation, quality measure reports (e.g., those that support the Merit-based Incentive Payment System or Accountable Care Organizations, any special financial reporting, etc.). Any custom reports will only be provided pursuant to a separate Statement of Work and will be subject to our then current fees for providing similar services.
   3. Prior AR. Unless mutually agreed upon in writing between You and Us and set forth on Your Order Form, Your old Accounts Receivable (“AR”) will not be migrated to our Software and Services and We will not work AR prior to the Effective Date. If AR Clean- Up (“AR Clean-Up Services”) is included on Your Order Form, We will work down Your outstanding AR for government and third-party payers where the claim has been processed electronically (excluding patient collections services, which are outside the scope of AR Clean-Up Services) as described below:
      1. We will take appropriate follow-up action to resolve claims and provide You with recommended next steps. You will have three (3) business days to respond with acceptance of the recommendation; after that specified time, We will adjust or write off the balance.
      2. We will follow up on each claim one (1), or in our sole discretion, up to two (2) times, depending on the state of the claim. If the follow up does not resolve the claim, You give Us the sole discretion to write off or continue pursuing the claim. If additional work is required on a claim beyond the above-mentioned 1 to 2 follow-ups, We reserve the right to charge additional fees to You or abandon the claim.
      3. We will process unallocated payments and take-back credits.
      4. All claims less than $25.00 and over a year old will be returned to You. All claims for amounts exceeding $25.00 will be researched and applied, or a ticket will be created with instructions for You to resolve.
      5. You acknowledge and permit Us to appropriately adjust and/or write off all claims deemed uncollectible. You agree that the AR Clean-Up Services are not a guarantee of reimbursement. You will work with Us on all outstanding aged AR, and anything deemed uncollectible will be written off as such. Balances less than $25.00 will also be written off.
      6. You agree to provide website access and payer contracts before the RCM Services go-live date to address claims appropriately. If claims are returned for timely filing, duplicate payment or already paid, We will not research them further and such claims will be written off.
   4. Credentialing Services. For the purposes of this Statement of Work, credentialing services means the process by which insurance companies verify whether a Healthcare Provider meets its requirements to serve as an in-network provider, including, education, training, professional experience, and other internal requirements of the insurance company. In the event a claim is denied due to issues related to credentialing, it is Your obligation to correct such issues and properly credential with the appropriate payer. Failure to credential claims appropriately may result in timely filing issues that are not our responsibility.
   5. Authorizations. You must obtain all relevant authorizations. It is Your responsibility to enter authorizations in the appropriate field, if applicable, within the Software and Services.
   6. Coding (e.g., procedure/diagnosis codes). We will not enter, modify, change, or delete any procedure or diagnosis codes without Your prior written direction pursuant to managing a denial or rejection.
   7. Miscellaneous services. Any other services not set forth in this Statement of Work, such as recurring enrollments, contract management, staff management, IT services, utilization management, charge services, managing payer relationships, managing payer audits, credit balances, medical record requests and data export requests by third parties, or clinical documentation improvement is not our responsibility unless otherwise specified in Your Order Form.
5. Term.
   1. Initial SOW Term. The initial term for this Statement of Work will commence as set forth in the applicable Order Form between You and Us.
   2. Company Software Term. We cannot provide the RCM Services unless You license and use our Software and Services, unless otherwise stated in Your Order Form executed by the Parties. In the event that Your license to access our Software and Services would terminate on a different date than the RCM Services under this Statement of Work, then Your license to access and use our Software and Services shall terminate on the later of (i) the termination date of this Statement of Work and (ii) the termination date of the license for our Software and Services as initially agreed by the Parties.
   3. RCM Services Requirements. If You fail to maintain and/or pay for licenses to use our Software and Services, You acknowledge that We may, at our option, suspend Your access to our Software and Services. In the event we suspend Your access to our Software and Services, We shall also be unable to perform the RCM Services outlined under this Statement of Work. Therefore, You acknowledge and agree that in the event of such a suspension, we shall have no liability whatsoever for any issues or claims related to timely filing or other RCM issues that arise from such suspension.
6. Fees.
   1. You shall pay Us fees for RCM Services as set forth in the Order Form between You and Us and as provided below:
      1. Monthly Fees. Unless otherwise stated in an Order Form, You shall pay Us a monthly fee for RCM Services equal to the greater of (x) a monthly minimum fee or (y) a percentage of claims revenue received from insurance and insurance claims. You shall be responsible for paying the monthly minimum fee after the expiration of the designated implementation period or from the Go Live Date, whichever date occurs first (such date the “RCM Invoicing Date”). The RCM Invoicing Date shall in no event be greater than ninety (90) days from the effective date of Your Order Form.
         1. If the average monthly payments processed through Us over any three (3) month period vary more than ten percent (10%) from the monthly estimate provided by You (the “Monthly Estimate”), We shall raise the percentage collections rate for You to a level consistent with our then-current rates for a similar volume of processed payments.
         2. Your Monthly Estimate shall be set forth in the Order Form.
      2. Charges. RCM Fees will be incurred by You and assessed by Us on all payments received by You after the RCM Invoicing Date, regardless of whether the claims were submitted for payment by Us or You. Upon termination of RCM Services, all charges by Us will end at the termination date, regardless of whether You receive payments after the termination date for claims submitted by Us.
      3. Future Regulatory Changes Impacting RCM Services. In the event that any provision of this Statement of Work, including without limitation those related to Fees, becomes illegal or violates any regulations due to regulatory changes, the Parties shall negotiate in good faith to: (a) revise such provision to comply with the applicable law or regulation, and (b) place the Parties in the same material and economic position they would have been in under the original terms of this Statement of Work.
7. Miscellaneous.
   1. Electronic Data Interchange & Exclusivity. You shall submit all claims payable by insurance (whether public or private) via EDI through our Software and Services. During the Term specified in this Statement of Work, You agree that we will be the exclusive provider of the RCM Services specified herein at all present or future locations, sites, or facilities that You own or control. In addition, You shall not perform any of the RCM Services You have contracted with Us to perform. In addition to any other remedies available to Us at law or equity, in the event You breach this Section, we shall be entitled to the payment we otherwise would have received if You had not breached this provision, plus an additional administrative fee equal in amount to the implementation fee specified under the Order Form for RCM Services between You and Us.
      1. Exceptions. Either We or You may submit claims to a payer other than through our Software and Services only when: 1) such payer will not accept claims through our Software and Services, and 2) We agree, in writing, to submit such claims by a means other than our Software and Services. In the event that We refuse to agree to submit such claims on Your behalf, You shall have the right to submit such claims on Your own behalf.
   2. Non-circumvention. You are prohibited from entering into any transaction that is the same as, substantially similar to, or in competition with the RCM Services provided under this Statement of Work or taking any action that is otherwise reasonably capable of having the effect of preventing us from deriving the full benefit promised by this Statement of Work (e.g. denying us access to Payer Portals). In addition to any other remedies available to Us at law or equity, in the event You breach this Section, We shall be entitled to the payment We otherwise would have received if You had not breached this provision, plus an additional administrative fee equal in amount to the implementation fee specified under the Order Form for RCM Services between You and Us.
   3. Company Software Discounts. If You have: (a) subscribed to our Software and Services, and (b) are receiving a discount on our Software and Services that is contingent upon You subscribing to RCM Services as set forth in this Statement of Work, then You acknowledge and agree that our Software and Services subscription fees are based on Your continued use of the Company to perform the RCM Services specified in this Statement of Work. In the event that You, for any reason, terminate this Statement of Work or fail to perform Your obligations hereunder, You agree that We shall have the immediate right to (1) adjust the pricing for subscriptions to our Software and Services, or (2) terminate this Statement of Work.
   4. Direct Collection Reporting. You shall report to Us no less than once per month any amounts collected directly by You from any clients or payers. Failure to report such amounts to Us shall be a material breach of this Statement of Work and the Agreement.
   5. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED) UNDER THIS STATEMENT OF WORK TO THE OTHER FOR ANY CLAIM WILL BE SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE GENERAL TERMS AND CONDITIONS OF THE AGREEMENT.

Professional Services & Statements of Work

1. Statements of Work. From time to time, You and We may agree on certain Professional Services to be performed, and in that case shall prepare a statement of work, or such other form as agreed upon by the parties (a “Statement of Work”). Each Statement of Work, upon execution by both of Us, will be subject to the Agreement. We shall perform for You the Professional Services described in each Statement of Work. You shall comply with the obligations designated as Your responsibility, if any, set forth in each Statement of Work. During the term set forth in any Statement of Work, we may incur substantial increases in technology and/or personnel costs due to changes in the law, Your requirements, or other unforeseen events, to protect the confidentiality, integrity, privacy and availability of Customer Data. In such cases, We may update the fees in any current Statement of Work to reflect such changes and provide written notice thereof to You with the updated Statement of Work (an “Updated SOW”). You shall have fourteen (14) calendar days, commencing on the day We provide You with the updated Statement of Work (“Review Period”), to review the updated fee structure. If You do not provide Us with a written objection to the Updated SOW during any applicable Review Period, the Updated SOW shall go into effect on the first day following the expiration of the Review Period and it shall supersede and replace the prior Statement of Work. If You provide a written objection to the Updated SOW, the Parties shall address the matter pursuant to the dispute resolution process described herein.
2. Change Orders. If You and We mutually agree to change the terms of a Statement of Work, We shall prepare a written change order (a “Change Order”) for execution by the Parties stating, at a minimum: (a) the effective date of the Change Order, (b) the specific changes, with reference to the affected sections of the Statement of Work, and (c) the effect of the changes on any fees or other amounts to be paid under the Statement of Work. Once executed, a Change Order will become a part of, and will be incorporated into, the related Statement of Work.
3. Payment. You shall pay Us for performing the Professional Services as stated in the related Statement of Work and according to the terms of the Agreement. All rates indicated are subject to adjustment as described in the Agreement.
4. Statement of Work Term. Any Statement of Work will commence on the effective date indicated therein and will continue until completed or terminated as provided in the Agreement, unless otherwise provided in the Statement of Work. You acknowledge that, despite our commercially reasonable efforts, any stated timelines or milestones for Professional Services may not be met due to, among other things, Your failure to be ready and available and to cooperate with Us. All Professional Services hours included under a Statement of Work must be used within the applicable implementation period or term of the Statement of Work and may not be allocated to other projects or services.
5. Implementation Statements of Work. If You have purchased Professional Services in connection with the implementation of the Software and Services stated in Your Order Form, a description of those Professional Services can be found here: Implementation Terms and Conditions

General Terms and Conditions

1. License & Reservation of Rights and Restrictions

1.1 License & Reservation of Rights. All rights not expressly granted under the Agreement are reserved by Us and our licensors. You acknowledge that: (i) all Protected Materials are licensed and not sold; (ii) You acquire only the right to use the Protected Materials for Your business use and We and our licensors shall retain sole and exclusive ownership of and all rights, title, and interest in the (a) Protected Materials, (b) Intellectual Property embodied or associated with the Protected Materials, (c) deliverables and work product associated with the Protected Materials, and (d) all copies and derivative works thereof; and (iii) the Protected Materials, including the source and executable code, logic and structure, constitute valuable trade secrets of Company and our licensors. You agree to secure and protect the Protected Materials consistent with the maintenance of our and our licensors’ rights. You agree to execute such further instruments and take such further actions as We may reasonably request, at our expense, to apply for, register, perfect, confirm, and protect our rights. You shall reimburse Us for any and all expenses that We may incur (including interest, attorneys’ fees, and other legal expenses) in connection with our efforts to enforce our rights against You with respect to the Protected Materials or any of our Intellectual Property rights in the event We prevail in such enforcement efforts.

1.2 Restrictions. You, or through an affiliate, employee, consultant, contractor, agent or other third party, shall not: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Protected Materials; (ii) copy, decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Protected Materials, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Protected Materials to any user other than those who have licenses to access; (iv) write or develop any derivative works based upon the Protected Materials; (v) modify, adapt, translate or otherwise make any changes to the Protected Materials or any part thereof; (vi) use the Protected Materials to provide processing services to third parties, or otherwise use the same on a ”service bureau” basis; (vii) disclose or publish, without our prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Protected Materials; (viii) otherwise use or copy the Protected Materials except as expressly permitted herein; or (ix) remove from any Protected Materials identification, patent, copyright, trademark or other notices or circumvent or disable any security device’s functionality or features. For the avoidance of doubt, You may copy or reproduce Protected Materials for the limited purpose of creating internal training materials for Your internal use in connection with Your use of the Software and Services, provided that such materials are destroyed upon the termination of the Agreement. You shall ensure that all users of the Protected Materials comply with the Agreement, and promptly notify Us of any actual or suspected violation. Further, You shall cooperate with Us with respect to investigation and enforcement of the Agreement.

1.3 Location. All software included in the Software and Services must be accessed from within the United States. You agree and acknowledge that the Software and Services are designed for use only in the United States. We make no warranty or representation that any aspect of the Software and Services is appropriate for use outside of the United States or may be used for persons who are not then located inside the United States. Those who access the Software and Services from locations outside the United States are responsible for compliance with applicable local laws, do so at Your own risk, and indemnify Us from any cause of action, whether in law, equity, or administrative action that arises from such use. Accessing the software included in the Software and Services from outside the United States gives Us the right to terminate the Agreement.

1.4 Access Credentials. Each individual, whether an employee, contractor, subcontractor, affiliate, partner, or otherwise, who accesses or uses any Software and Services on Your behalf must have their own Access Credentials. Users may not share Access Credentials with any other individual.

1.5 Security Controls. You agree to abide by any administrative or technical measures We use to secure the Software and Services, Your data, and Your patients’ data, including, but without limitation, multi-factor authentication.

1.6 Multi-factor Authentication. At our discretion, You agree and consent to registering and accessing the Software and Services using multi-factor authentication (“MFA”) to verify Your identity. MFA refers to using a combination of multiple verification factors such as something you know (e.g. password) and something you have (e.g. registered device). You agree to provide a valid mobile phone number and/or email address to us for enrollment in MFA identity verification. You consent to us sending one-time passcode(s) to You via automated text message to the provided mobile number, automated email to provided address, or mobile app notification for authentication. You consent to us identifying ourselves and stating the MFA identity verification purpose when sending authentication passcode(s). You must timely respond to MFA contacts to gain access to the Software and Services. You agree that We may employ reasonable MFA identity checks prior to granting access to the Software and Services to verify Your identity pursuant to the Telephone Consumer Protection Act, CAN-SPAM Act, Electronic Communications Privacy Act, and other applicable federal laws governing communications consent requirements. You may revoke consent for MFA identity verification contacts at any time by notifying Us through available support channels. However, You agree that revoking consent for MFA contacts may lead to suspension of Your access to the Software and Services.

2. Confidentiality

2.1 Non-Disclosure. Each Party will protect the other Party’s Confidential Information from unauthorized disclosure and use the same degree of care that each Party uses to protect its own Confidential Information, but in no event less than a reasonable amount of care. Neither Party will use Confidential Information of the other Party for purposes other than those necessary to further the purposes of the Agreement or as otherwise authorized herein. Neither Party will disclose to third parties Confidential Information without prior written consent of the other Party except as authorized herein.

2.2 Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party if it’s compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure.

2.3 Copyright Placement. Our placement of a copyright notice on any portion of any Software and Services will not be construed to mean that such portion has been published and will not derogate from any claim that such portion contains proprietary and confidential information of Company.

2.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the disclosing Party and that, in the event of such breach, the disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damage.

2.5 System Monitoring. We, our affiliates, Data Centers, Clearinghouses, and licensors may monitor Your usage, performance, and operation of the Software and Services using electronic, remote, and other means without notice to You.

2.7 Non-disparagement. You agree that You will not, either on Your own account or directly or indirectly in conjunction with or on behalf of any other person or entity, (i) disparage, defame, impugn, damage, or assail our reputation or (ii)make any communication about Us that would make the recipient likely to question our integrity, competence, good character, professionalism, or product quality.

3. Representations and Warranties

3.1 Compliance Warranty. Each Party represents, warrants and covenants that such Party has conducted a reasonable inquiry and based thereon is informed and believes that: (a) it has the full power and authority to enter into the Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; (b) its acceptance of and performance under the Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust; and (c) it complies with and will comply with any and all applicable local, state, and/or national laws or regulations applicable to such Party, including, without limitation, those related to PHI, Covered Entities, and Business Associates as each term is defined under HIPAA, and to any other laws or regulations regarding data privacy and transmission of personal data.

3.2 HIPAA. Each Party, to the extent applicable, will comply with laws and regulations applicable to the privacy and security of individually identifiable health information, including but not limited to state laws and regulations and the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and/or regulations promulgated thereunder (“HIPAA Regulations”). State law, HIPAA, HITECH, HIPAA Regulations and other federal laws and regulations are hereafter referred to collectively as “Privacy Laws.” You hereby agree to the terms of the Business Associate Attachment included herein. The Business Associate Attachment further describes the Parties’ obligations with respect to compliance with Privacy Laws.

4. Disclaimers and Limitation of Liability

4.1 Warranty Disclaimer. THE WARRANTIES, IF ANY, SET FORTH IN THE AGREEMENT ARE IN LIEU OF ANY OTHER WARRANTY. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL, OR WRITTEN, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS TO THE ACCURACY OR USEFULNESS OF THE SOFTWARE AND SERVICES, PROFESSIONAL SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES, OR PAYMENT SERVICES OR ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM, PAST PRACTICE, OR TRADE USE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND SERVICES, OR DATABASE, OR STORAGE OF DATA, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF OR ANY PROFESSIONAL SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES, OR PAYMENT SERVICES WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM THE SOFTWARE AND SERVICES OR PROCESSING OF DATA (OR ANY SOFTWARE OR OTHER CONTENT CONTAINED IN OR PROVIDED THROUGH THE SOFTWARE AND SERVICES) ARE ACCURATE OR RELIABLE. FOR THE AVOIDANCE OF ANY DOUBT, WE FURTHER EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRSENTATIONS RELATED TO THE ELIGIBILITY FOR, TIMING, AND AMOUNT OF REIMBURSEMENT FROM ANY FEDERAL, STATE, OR COMMERCIAL PAYER THAT MAY RESULT FROM YOUR USE OF THE SOFTWARE AND SERVICES, PROFESSIONAL SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES OR PAYMENT SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND IMPROVEMENTS TO THE PROTECTED MATERIALS AT ANY TIME AND WITHOUT NOTICE.

YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SERVICES AND OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER TO ACHIEVE YOUR INTENDED RESULTS. YOU ACKNOWLEDGE THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SOFTWARE AND SERVICES, PROFESSIONAL SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES, PAYMENT SERVICES AND CUSTOMER DATA, AND THAT NO FORM OF ENCRYPTION IS FULL PROOF. ACCORDINGLY, WE CANNOT AND DO NOT GUARANTEE THE PRIVACY, SECURITY, OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.

WARRANTY DISLCAIMER (SURESCRIPTS). SURESCRIPTS AND WE MAKE NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY THROUGH THE SURESCRIPTS NETWORK OF ANY PARTICULAR DATA SOURCE OR OTHER PARTICIPANT IN THE SURESCRIPTS NETWORK, AND ALL DATA SOURCES AND INFORMATION OBTAINED THROUGH THE E-PRESCRIBING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AT ANY TIME, DATA SOURCES OR OTHER PARTICIPANTS IN THE SURESCRIPTS NETWORK MAY BE ADDED TO OR DELETED FROM THE SURESCRIPTS NETWORK OR MAY LIMIT YOUR ACCESS TO THEIR DATA, AND SUCH CHANGES MAY OCCUR WITHOUT PRIOR NOTICE TO YOU.

SUBJECT TO THE TERMS AND CONDITIONS IN THE AGREEMENT, WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND IMPROVEMENTS TO OUR SOFTWARE AND SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES, AND PAYMENT SERVICES AT ANY TIME. WE MAY, WITHIN OUR REASONABLE DISCRETION, REPLACE, UPGRADE, ADD TO, OR SUBSTITUTE ANY SOFTWARE AND SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES, AND PAYMENT SERVICES WITH SUBSTANTIALLY SIMILAR PRODUCTS OR SERVICES TO BETTER SUPPORT OUR CUSTOMERS, MEET COMPLIANCE OBLIGATIONS, AND IMPROVE SUCH SERVICES.

TO THE EXTENT THAT WE HAVE GRANTED YOU ACCESS TO A TEST ENVIRONMENT, SANDBOX, TRIAL ENVIRONMENT, BETA ENVIRONMENT, OR OTHER NON-PRODUCTION ENVIRONMENT WHERE YOU MAY ACCESS YOUR OWN OR DUMMY DATA, SUCH ENVIRONMENT IS PROVIDED ON AN AS-IS BASIS AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ANY WARRANTY RELATING TO SUCH ENVIRONMENT, OR ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM, PAST PRACTICE, OR TRADE USE. MOREOVER, WE MAY TERMINATE YOUR ACCESS TO SUCH ENVIRONMENT FOR ANY REASON AND AT ANY TIME.

WE MAY USE ARTIFICIAL INTELLIGENCE, MACHINE LEARNING AND MACHINE LEARNING APPLICATIONS (“AI”) FOR ANY LAWFUL PURPOSE PERMITTED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, PROVIDING THE SOFTWARE AND SERVICES TO YOU, SUPPORTING AND MAINTAINING OUR SOFTWARE AND SERVICES, PROVIDING YOU WITH PRODUCT SUPPORT, AND IMPROVING OUR PRODUCTS OR DEVELOPING NEW ONES. WE WILL COLLECT AND USE YOUR DATA IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT AND OUR BUSINESS ASSOCIATE ATTACHMENT.

FROM TIME TO TIME, WE MAY INVITE YOU TO TRY ADDITIONS OR MODIFICATIONS TO OUR SOFTWEARE AND SERVICES AS BETA TRIALS AT NO CHARGE, INCLUDING NEW AI CAPABILITIES. YOU MAY ACCEPT OR DECLINE ANY SUCH BETA TRIALS. BETA TRIALS ARE FOR EVALUATION PURPOSES AND NOT FOR PRODUCTION USE, ARE NOT CONSIDERED PART OF OUR SOFTWARE AND SERVICES UNDER THIS AGREEMENT, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS. UNLESS OTHERWISE STATED, ANY BETA TRIAL PERIODS WILL EXPIRE AT ANY TIME AT OUR SOLE DISCRETION, AND WE MAY NEVER MAKE THE BETA PRODUCTS OR SERVICES GENERALLY AVAILABLE. WE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA TRIAL. ANY TRIAL AI CAPABILITIES ARE EXPRESSLY PROVIDED ON AN AS-IS BASIS AND DO NOT CONSTITUTE MEDICAL ADVICE.

4.2 Excluded Damages. IN NO EVENT WILL WE, OUR LICENSORS, CLEARINGHOUSES, DATA CENTERS, SUPPLIERS, OR PAYMENT PROCESSORS BE LIABLE TO YOU OR YOUR USERS OR ANY OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), PRODUCT LIABILITY, OR OTHERWISE, WHETHER OR NOT WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY (INLCUDING ATTORNEYS’ FEES AWARDED UNDER THE AGREEMENT) OF COMPANY AND OUR AFFILIATES, LICENSORS, CLEARINGHOUSES, DATA CENTERS, SUPPLIERS, AND PAYMENT PROCESSORS TO YOU FOR ANY CLAIM BY YOU OR ANY THIRD PARTIES ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SOFTWARE AND SERVICES, PROFESSIONAL SERVICES, CLEARINGHOUSE SERVICES, E-PRESCRIBING SERVICES, PAYMENT SERVICES, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT (INCLUDING THEIR MODIFICATION OR TERMINATION), THIRD-PARTY PRODUCTS, OR YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION), WILL BE LIMITED TO $100.

4.4 Limitation of Action. No action (regardless of form) arising out of the Agreement between You and Us may be commenced by You against Us more than one (1) year after the cause of action arose.

4.5 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED OUR SOFTWARE AND SERVICES AND OTHER SERVICES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE AND SERVICES AND OTHER SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

5. Indemnification

5.1 Indemnification by Company. Subject to limitations of liability and exclusions of damages set forth in Section 4 of these General Terms and Conditions, We agree to indemnify and hold harmless You and Your officers, directors, employees and agents (“Customer Indemnified Parties”) from and against any Claims brought by a third party resulting from or arising out of (i) the unauthorized disclosure by Us of PHI in breach of the Business Associate Attachment; and (ii) a successful claim that the Software and Services infringe or misappropriate the patent, trade secret, trademark, copyright or other Intellectual Property Rights of any third party.

5.2 Indemnification by Customer. You shall indemnify and hold harmless Company and its officers, directors, employees and agents (“Company Indemnified Parties”), from and against any and all Losses, arising, directly or indirectly, out of or relating to any Claim brought by a third party based on (i) the improper use or operation of the Software and Services (and any third-party software provided to Customer pursuant to the Agreement), by You or Your users, including, without limitation, any non-authorized use of Your user logins or Access Credentials, provided, however, that You shall have no indemnification obligation for any Claim for which the proximate cause was our gross negligence or willful misconduct; (ii) a breach of the Agreement by You or any of Your Users, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of Customer Data or any other content or data introduced to the Software and Services by any User; (iv) violation of any applicable law, rule or regulation by You or any of Your Users, (v) the diagnosis and/or treatment of any of Your patients or clients; and/or (vi) Your negligent acts or willful misconduct, or that of Your personnel. You will pay all Losses (whether by settlement or award after a final non-appealable judicial judgment) incurred by the Company Indemnified Parties from any such Claim.

6. Term and Termination

6.1 Renewal & Cancellation. Your subscriptions shall automatically renew for subsequent contract Terms in accordance with the subscription periods You selected at registration and/or the Order Form executed by the Parties, unless You cancel or modify the subscriptions as provided in this Agreement and Your Order Form or subscription page, as applicable. Failure to cancel Your subscriptions by providing written notice to Us in accordance with this Agreement and Your Order Form or subscription page, will result in renewal of Your subscriptions and invoicing by the Company for additional contract Terms. If Your Order From includes an annual or multi-year Term, You must provide Us with at least ninety (90) days prior written notice of non-renewal. All subscription payments are nonrefundable. For the avoidance of doubt, this Agreement shall remain in full force and effect so long as you continue to access the Software and Services or Customer Data stored therein.

6.2 Nonpayment. If You fail to make timely payments of any fees when due, (1) You shall be in material breach of the Agreement, (2) We shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then-current contract Term of the applicable Software and Services are immediately due and owing, and (3) You shall be responsible to pay any collection expenses, including reasonable attorneys’ fees, incurred by us. Without limiting the foregoing, all fixed monthly fees and/or minimum monthly fees for the remainder of the contract Term indicated on the Order Form, or if applicable, subscription page, shall become immediately due and payable if (i) You fail to pay any amount owed under this Agreement or the Order Form and fail to cure such payment breach within fifteen (15) days after notice of such payment breach; (ii) You attempt to cancel this Agreement or the Order Form before the end of the current contract Term for any reason not expressly permitted herein; or (iii) this Agreement terminates early for any reason. In the event of (i), (ii) or (iii) occurring, all fixed monthly fees and/or minimum monthly fees for the remainder of the contract Term shall become immediately due and payable.

6.3 Suspension of Services. We will be entitled to suspend any or all services immediately in the event You are in breach of the Agreement.

6.4 Material Breach & Cure Period. Either Party may terminate the Agreement following a material breach by the other Party not cured during the Cure Period. The non-breaching Party shall notify the breaching Party of the breach in writing and the breaching Party shall have thirty (30) days (the “Cure Period”) to cure the breach or to provide the non-breaching Party with a plan reasonably acceptable to the non-breaching Party for curing the breach following receipt of the notification. If the breaching Party fails to cure the breach within the Cure Period or according to a plan reasonably acceptable to the non-breaching Party, then the non-breaching Party may terminate the Agreement upon written notice to the breaching Party. In the event We, in our sole discretion, determine that You are in breach of Your payment obligations or are otherwise using the Software and Services in a manner that violates any applicable law or regulation, We may immediately suspend the Software and Services or other services provided hereunder upon written notice to You.

6.5 Bankruptcy. We may terminate the Agreement if there is a filing of a voluntary or involuntary petition in bankruptcy against the Company and such petition is not dismissed within thirty (30) days of such filing or upon the appointment of a receiver or trustee to take possession of all, or substantially all, of Company’s assets, and such appointment is not terminated withing thirty (30) days.

6.6 Exclusion. We may terminate the Agreement if the Company is excluded from participation in Medicare.

6.7 Legal Conflicts with the Agreement. We may terminate this Agreement if in the reasonable opinion of our legal counsel, termination is required to avoid a violation of law if the Agreement were to continue under the existing terms without the Parties mutually agreeing to modify its terms.

6.8 Effect of Termination. Unless otherwise stated below, upon expiration or termination of the Agreement for any reason, (a) the subscriptions and license(s) shall terminate and You shall not use or access, directly or indirectly, the Software and Services; (b) our obligation to perform support services shall cease; and (c) all fees and other amounts owed to us will be immediately due and payable by You. If You have made any copies of our property or materials, including without limitation the Protected Materials and Software and Services, You shall either destroy or return them, along with a signed certificate that all such copies have been either destroyed or returned, respectively, and that You have not retained a copy or any part of the Software and Services or Protected Materials in any form.

6.9 Data Export. Unless otherwise agreed by the Parties in writing and subject to Company’s obligations as described in the Business Associate Attachment, upon termination of the Agreement, You shall bear the full responsibility for the migration of Your data to a new service provider. We, at our option, may provide data exports and any other assistance related to the migration of Your data in accordance with any applicable Documentation at our then current rates for such services.

6.10 Immediate Termination Rights. In addition to our rights set forth in the Agreement, We shall have the right to immediately terminate any Statement of Work for Professional Services by providing written notice to You if You, as determined by Us in our reasonable discretion, (a) engage in fraudulent or questionable billing practices, (b) behave in an unprofessional manner when engaging with our employees or contractors, or (c) did not accurately describe to us, prior to the execution of any Statement of Work, the processes and billing complexities inherent to Your business, and the inaccuracies create an extraordinary burden on us to fulfill the terms of any applicable Statement of Work. Without limiting our rights pursuant to the foregoing, if We terminate a Statement of Work pursuant to this Section, You shall, in addition to all other remedies We may have, pay us, for each Statement of Work then in effect, the remainder of the Term’s anticipated fees based on the greater of (a) estimated monthly volume of processed claims or (b) the running average of monthly fees calculated at the point of early termination. Upon any termination of the Agreement or a Statement of Work, You shall also pay to us all outstanding fees for Professional Services performed by Us.

7. Payment

7.1 Fees and Payment Terms. Fees and payment terms are specified in the Software and Services and/or Order Form and must be agreed to prior to subscription and use of the Software and Services. You agree to be charged for all services as invoiced. Prior to and during the subscription and use of the Software and Services, and until final payment for those Software and Services, You must submit and maintain current and valid payment information. You shall maintain sufficient funds to make payment to us as invoiced. Unless otherwise specified in an Order Form, all payments are due upon receipt, and collected by automatic debit from the payment method that You have provided. All payments are non-refundable and must be made in US dollars. Prices and fees are subject to taxes and other government mandated fees or assessments, as applicable. You will make payments by Automated Clearinghouse (“ACH”) or credit card. If You are a non-profit, upon our written consent, We may also accept a purchase order. If Your ACH or credit card payment fails for any reason, We will try to process it again immediately. We will attempt this three times in total, and You will incur a charge from us for each unsuccessful attempt. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Credit card payments may be subject to an additional merchant’s fee if stated. Unless expressly provided for otherwise, fees paid or payable for Software and Services are not contingent under any circumstances upon the performance of any other services and may not be withheld. Payment of fees is under no circumstances subject to or conditioned by the delivery of future products or functionality by Company. Further, You shall reimburse Us for each non-sufficient fund charge We incur for any payment made by You. All payments are nonrefundable and any credit that is offered is at our sole discretion.

7.2 Taxes. Unless expressly provided for otherwise, the prices listed for subscriptions do not include taxes. You agree to pay any taxes, other than those based on our net income, arising out of the Agreement. If You are tax-exempt, You agree to provide us with a copy of Your tax-exempt certificate prior to using the Software and Services. You also agree to indemnify us from any liability or expense incurred as a result of Your failure or delay in paying taxes due.

7.3 Pass Through Fees. You agree that Company may increase fees charged to You for the Software and Services in connection with fee increases for third-party products and services integrated or offered with the Software and Services.

7.4 Term and Increases in Fees. Unless otherwise stated in Your subscription and/or an Order Form, the Agreement between You and Us is month-to-month. We reserve the right to increase our fees on month-to-month subscriptions at any time by providing You with fifteen (15) days written notice. If Your Order Form includes an annual or multi-year term, Your fees shall increase every twelve (12) months, at Company’s option: (1) by five percent (5%), (2) to Company’s current list prices then in effect, or (3) by the most recent aggregate change in the Consumer Price Index. “Consumer Price Index” shall mean the United States Department of Labor’s Bureau of Labor Statistics’ Consumer Price Index.

7.5 Payment Disputes. You must indicate that You are disputing any fees or expenses, in writing, within five (5) business days of receipt of the invoice specifying such fees or expenses.

7.6 Advance Payments. You may within the Software and Services or through an alternate payment agreement with Us, elect to choose to make payments in advance of their due date or may choose to pay for multiple Terms in advance. Unless otherwise expressly stated in a separate Order Form, Purchase Schedule, or subscription, You acknowledge and agree that: (1) all advance payments are nonrefundable, (2) We make no guarantee or representation by acceptance of advance payments that the pricing for the Software and Services will remain the same from month-to-month, and (3) We may change the Software and Services or pricing thereof from month-to-month despite any advance payments.

7.7 Minimums. You understand and agree that fees are based on the number of subscriptions or licenses purchased, and that the number of subscriptions or licenses purchased represents the minimum amount that You have committed to for the relevant Term and cannot be decreased during such Term. In the event Your actual need exceeds the number of subscriptions or licenses for the Software and Services purchased by You, You must purchase additional subscriptions or licenses at our then current rates.

8. Miscellaneous

8.1 Non-solicitation and Noncompete. You acknowledge and agree that our employees and contractors are a valuable asset to us, that we expended significant resources in recruiting and training such employees and contractors, and that such employees and contractors are and would be difficult for us to replace. Accordingly, You agree that, for the term of the Agreement and for a period of twelve (12) months thereafter, You will not solicit, recruit, encourage to cease employment with the Company, or offer to hire or retain any such employee or contractor, whether as an employee, independent contractor or otherwise. In the event You breach the prohibition against solicitation, the Parties agree that it would be difficult to determine the amount of actual damages that would result from such breach. The Parties further agree that in the event You breach the provisions of this Section, You shall pay us liquidated damages equal to one hundred (100%) percent of such employee or contractor’s annualized compensation, which is the Parties’ good faith estimate of the amount of damages resulting from such breach. Additionally, during the term of the Agreement and for twelve (12) months thereafter, You are prohibited from directly or indirectly creating, operating, or managing a service, program, legal entity, or business model that in any way competes with our business model or operations. A breach of this Section 8.1 will be considered a material breach of the Agreement.

8.2 Subcontractors. Company may use affiliates or subcontractors to perform our obligations hereunder.

8.3 Amendment. From time to time and in our sole discretion, Company may change or modify the terms of this Agreement by providing You notice at least thirty (30) days prior to the effective date of such changes or modifications. Company may provide such notice through posting a notice on our websites or web portals, or by sending You a notice through the Software and Services, or by another appropriate means of electronic communication. Such changes or modifications will take effect on the date set forth in the notice and Your continued use of the Software and Services following our notice will constitute Your acceptance of the modified Agreement.

8.4 Waiver; Severability. The failure of any Party to insist in any one or more instances upon performance of any term of the Agreement will not be construed as a waiver of future performance of the term, and the Party’s obligations with respect to such term will continue in full force and effect. The provisions of the Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of this entire Agreement in that jurisdiction.

8.5 Assignment. Neither Party may assign or transfer the Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld; provided, however, that We may assign or transfer the Agreement, without Your consent, to any of our affiliates, subsidiaries, entities controlled by or under common control with Us, or in the event of a merger, change of control or sale of substantially all of our assets. The Agreement will bind the Parties and their respective successors and assigns and will inure to the benefit of the Parties and their respective permitted successors and assigns.

8.6 Force Majeure. If any Party is unable to perform any of its obligations under the Agreement (other than payment obligations) because of any cause beyond its reasonable control, including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, pandemic, destruction of production facilities, riot, insurrection or material unavailability, and if the non-performing Party has been unable to avoid or overcome its effects through the exercise of commercially reasonable efforts, such non-performing Party will provide prompt written notice to the other Party. Upon providing such notice, the non-performing Party’s performance will be excused and the time for its performance will be extended for the period of delay or inability to perform due to such occurrences.

8.7 Relationship of the Parties. The sole relationship between the Parties is that of independent contractors. The Agreement will not create a joint venture, partnership, agency, employment, or other relationship between the Parties. Nothing in the Agreement will be construed to create any rights or obligations except among the Parties, and no person or entity will be regarded as a third-party beneficiary of the Agreement, except as otherwise provided in the Agreement.

8.8 Survival. Any term of the Agreement that contemplates performance after termination will survive expiration or termination and continue until fully satisfied.

8.9 System Availability. You understand that as part of scheduled maintenance and other planned downtime events, as well as certain events outside of our direct control resulting in unplanned downtime events, Your access to the Software and Services, hosted by either us or You, may be partially or completely restricted.

8.10 Versioning. We shall only be obligated to support the most recent version of our Software and Services.

8.11 ONC-Certified Software and Services. If You use Software and Services that have been certified through the Office of the National Coordinator’s (“ONC”) Health IT Certification Program, the confidentiality and non-disparagement obligations of these General Terms and Conditions do not apply to 1) the usability of any certified Software and Services, 2) the interoperability of any certified Software and Services, 3) the security of any certified Software and Services, 4) any relevant information regarding users’ experiences when using certified Software and Services, or 5) our business practices with respect to the exchange of electronic health information and how a user of our certified Software and Services has used such technology.

8.12. Exclusivity. During the Term and so long as We have not been determined to be in material breach of the Agreement, You agree that We will be the exclusive provider of the Software and Services, Professional Services, Clearinghouse Services, E-Prescribing Services, Payment Services, and any other substantially similar software or services, at all present or future locations, sites, or facilities that You own or control. In addition, during the Term, You shall not solicit bids, quotes, or contracts from another provider of services substantially similar to the Software and Services, Professional Services, Clearinghouse Services, E-Prescribing Service, or Payment Services for the provision of such services to such additional locations, sites, or facilities not presently covered by the Agreement.

8.13 Injunctive Relief. The Parties agree that, in the event of any breach of any of the covenants and agreements set forth in the Agreement, the non-breaching Party would encounter extreme difficulty in attempting to prove the actual amount of damages suffered by it as a result of such breach and would not have an adequate remedy at law in such event. The Parties therefore agree that, in addition to any other remedy available at law or in equity, in the event of such breach, the non-breaching Party shall be entitled to seek and receive specific performance and temporary, preliminary and permanent injunctive relief from violation of any of said covenants and agreements from any court of competent jurisdiction without necessity of proving the amount of any actual damage resulting from such breach and without the necessity to post a bond or other security.

8.14 Headings and Drafting. The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a Party based on the author of the document.

8.15 Prior Agreements. If, prior to the Effective Date, You subscribed, purchased or licensed from Us, or any of our predecessors or affiliates, software, services or other products pursuant to any license or subscription agreement(s) or similar contract(s) (such agreement(s) being the “Prior Agreement”), all Prior Agreements are hereby terminated as of the Effective Date and are of no further effect. This Agreement shall govern the entirety of the Parties’ relationship at all times, provided that obligations for payments not yet made and obligations of confidentiality shall survive termination of the Prior Agreement.

8.16 RCM Services Term and Software and Services Term. An active subscription to the Company’s Software and Services is necessary to receive revenue cycle management and other billing services from Us, unless otherwise agreed by the Parties on an Order Form. Therefore, in the event You subsequently subscribe to RCM Services on our RCM Statement of Work, the contract Term of Your license or subscription for our Software and Services shall automatically be extended to the date of expiration or termination of Your RCM Statement of Work, if later.

8.17 Publicity. Neither Party will issue any press release or other voluntary public communication regarding this Agreement, or the relationship described by this Agreement, without giving the other Party an opportunity to review and comment upon such communication and obtaining the written consent of the other Party. Notwithstanding the foregoing sentence, during the term of this Agreement, We may identify You publicly as our customer in press releases, on our website, or otherwise in listings of customers, provided that such identification does not reveal any terms of this Agreement beyond the basic nature of the services provided and does not mischaracterize the relationship.

8.18 Export Laws. You shall comply fully with all relevant export laws and regulations of the United States to ensure that the Protected Materials are not exported, directly or indirectly, in violation of United States law.

8.19 Inspection of Books and Records. You agree to maintain adequate books and records related to compliance with the terms of the Agreement, including but not limited to all terms related to payment and licensing. Such books and records shall be available for our inspection at a mutually agreed upon time and place for the purpose of determining whether You have complied with the terms of the Agreement. We shall have the right to conduct such an inspection once per calendar year upon providing You with thirty (30) days advance written notice.

8.20 Entire Agreement. The Agreement, all applicable attachments and amendments, Statements of Work, and Order Forms constitute the entire agreement between the Parties relating to this subject matter and supersede all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, including the Prior Agreements.

8.21 No Third-party Beneficiaries. The Agreement is for the benefit of the Parties and their successors and permitted assigns and does not confer any rights or benefits on any third party, including any employee of a Party, any client or customer of a Party, or any employee of a client or customer of a Party.

8.22 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to the Agreement.

8.23 Class Action Waiver. The Parties agree that any litigation arising out of or relating to the Agreement may only be maintained on an individual basis, and any right to pursue any claims arising out of or relating to the Agreement may not consolidate more than one Party’s individual claims or be raised on behalf of a class of Parties.

8.24 Dispute Resolution. Any and all disputes, controversies or claims (each a “Dispute”) arising out of, relating to or in connection with the Agreement, including, without limitation, any dispute regarding its arbitrability, validity or termination, or the performance or breach thereof, shall be exclusively and finally settled by arbitration under Delaware law administered by the American Arbitration Association (“AAA”). Any party may initiate arbitration by notice to the other party (a “Request for Arbitration”). The arbitration shall be conducted on a confidential basis in accordance with the AAA rules governing commercial arbitration (the “Rules”) in effect at the time of the arbitration, except as they may be modified by the provisions of this Agreement. The place of the arbitration shall be Minneapolis, Minnesota. The language of the arbitration shall be English. Any decision or award as a result of any such arbitration proceeding shall be in writing, shall provide an explanation for all conclusions of law and fact, and shall include an assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator with at least ten (10) years of experience practicing law and experience with commercial disputes involving SaaS or other cloud-based web services. If the parties fail to appoint a person to serve as arbitrator within fifteen (15) days after delivery of the Request for Arbitration, the AAA shall appoint an appropriate arbitrator in accordance with the Rules. Judgment upon an arbitration award may be entered in any court of competent jurisdiction.

8.25 Notices. Company may give general notices regarding the Software and Services applicable to all customers by means of a notice on the Company’s websites or web portals or through Your account. Specific notices applicable to Users of the Software and Services, technical support, system security and other account notices will be given by electronic mail to Your e-mail address on record in the Company’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery to the following or such other addresses as either Party may designate in writing from time to time:

If to Customer: Customer’s account representative and address on record in the Company’s account information

If to Company:

Therapy Brands
2 20th St N, Suite 500
Birmingham, AL 35203
Attention: Chief Legal Officer,

With copy by email to: legal.services@therapybrands.com

8.26 Consent to Electronic Communications. We provide Users information by email or posting through the Software and Services. The emails and other communications You will receive from Us may include those relating to billing, account verification, training, survey or interview requests (for product and customer service improvement purposes), marketing and promotions, and administrative announcements (including related to this Agreement, our privacy policy, or security incident notifications). You understand that by using the Software and Services and agreeing to the terms of this Agreement, Company will send the foregoing communication types to you. You do have the right, and may instruct Us, to opt out of communications related to survey or interview requests and marketing and promotions but hereby waive the right to opt out of any other communications to the extent permitted by applicable law. You are responsible for obtaining either requisite consent or ceasing email, text messages and other communication to a patient or client in the event that such patient or client opts out of receipt of any such communications.

8.27 Interpretation. In the event of a conflict between an Order Form or Statement of Work and these Master Subscription Terms and Conditions, the terms of these Master Subscription Terms and Conditions shall prevail except the terms of such Order Form shall control with respect to a conflict involving the Software and Services and the terms of such Statement of Work shall control with respect to a conflict regarding the performance of deliverables under such Statement of Work.

Definitions

1. Access Credentials means the credentials provided by Company that allow You and Your users to access Software and Services for operational use. Access Credentials may mean a username, log-in, password, serial key, electronic code, or other means of verifying user identity and rights to access the Software and Services.
2. ACH means automated clearinghouse.
3. Agreement means the Agreement, the Business Associate Attachment, any amendment, and any other attachment, order form, statement of work, exhibit, or schedule associated with Company’s Software and Services and other services.
4. Claim means any claim, action or proceeding brought by a third party entitled to indemnity under this Agreement.
5. Claim Data includes, but is not limited to, diagnostic codes, billing codes, and payer information.
6. Client, Student, Learner, or Patient means a person who is currently receiving clinical, educational, or other services from Customer, or any person who has received such services from Customer within (i) the 6-month period immediately preceding the date of Company’s most recent invoice to Customer or (ii) the 6-month period immediately following the date of Company’s most recent invoice to Customer, unless otherwise indicated on an Order Form. Licensing fees are payable to Company regardless of whether a Client is archived within any Software and Services.
7. Clearinghouse means an entity that processes transactions pursuant to Clearinghouse Services.
8. Clearinghouse Services means the financial and/or administrative electronic data interchange (“EDI”) services provided by Company, and if applicable, third-party service providers.
9. Company means the Therapy Brands legal entity identified on the Order Form between the parties.
10. Company Indemnified Party means Company and its officers, directors, employees, and agents when entitled to indemnity from Customer.
11. Company Marks means our logos, trademarks, and trade names.
12. Confidential Information means information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing Party. Your Confidential Information does not include any Customer Data that we de-identify in accordance with the Agreement. Our Confidential Information includes, but is not limited to, the terms and conditions of the Agreement, all trade secrets, software, source code, Database, Access Credentials, information about any non-user facing aspect of the Software and Services, object code, specifications, documentation, business plans, roadmaps, customer lists and customer-related information, financial information, proposals, budgets, the results of testing and benchmarking of the Software and Services, and any information related to the pre-market testing and development of any product or service included in the Software and Services. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can establish that such information (1) is or becomes generally known or available to the public through no fault of the receiving Party, (2) was lawfully in the receiving Party’s possession before receipt from the disclosing Party without a duty of confidentiality, (3) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis, or (4) has been independently developed by the receiving Party without reference to any Confidential Information of the other party.
13. Configurations means modifications to displays, formats, reports, settings, options, and other parameters of software without altering its code or functionality.
14. Cure Period means the thirty (30) day period in which a Party who has breached the Agreement may cure their breach.
15. Customer means the customer identified on the Order Form between the Parties.
16. Customer Data means any data and information that You or Your Users provide, generate, transfer, or make available to Us under the Agreement, whether printed, electronic, or in any other format. Customer Data shall not include any De-identified Data that we de-identify in accordance with the Agreement.
17. Customer Indemnified Party means You, Your officers, directors, employees and agents when entitled to indemnity from Us.
18. Data Center means an entity that houses servers that host any applicable Software and Services.
19. Database means the relational database provided to support the Software and Services.
20. De-identified Data means any Customer Data that is stripped of PHI and Personally Identifiable Information (“PII”) and their identifiable elements, in accordance with HIPAA and its implementing regulations, so as to render the resulting data set de-identified.
21. Documentation means user guides, instructions, Company notes, manuals, online help files, knowledge base, and other materials, if any, made available by Us, which describe the use of the Software and Services.
22. Effective Date means the effective date indicated during the registration process or when Customer otherwise begins using the Software and Services (if earlier) or the effective date specified in the applicable Order Form.
23. E-Prescribing Services means any Software and Services used to submit and manage electronic prescriptions, such as, but not limited to, prescription routing, medication history, and/or eligibility checks.
24. Healthcare Providers means, collectively, (1) any individual who bills for the delivery of healthcare services, whether under their own National Provider Identifier (“NPI”) or the NPI of an organization; (2) any individual who provides revenue-generating services, whether billed under that provider’s NPI or otherwise; or (3) users of the Software and Services participating in clinical, counseling, or therapeutic care of patients.
25. HIPAA means the Health Insurance Portability and Accountability Act of 1997, as amended.
26. Intellectual Property means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which Company and its affiliates have created, acquired or otherwise have rights in, and may, in connection with the performance of services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
27. Location means a physical location with a discrete address where individuals receive clinical, educational, or other services from Customer.
28. Losses means with respect to a claim any and all damages, liabilities, penalties, interest, fines, losses, costs, and expenses (including reasonable attorneys’ fees and expenses).
29. Order Form means the document(s), regardless of title, executed by the Parties which incorporates by reference the terms of the Agreement as well as applicable attachments and exhibits, and describes order-specific information, such as a description of products or services ordered, license metrics, and fees (e.g. a subscription order, purchase schedule, or subscription page).
30. Partner means any Customer who distributes Software and Services on behalf of Company, or any entity or individual for whom Company distributes software or services (e.g. resellers, wholesalers, third-party add-ons and integrated products, etc.).
31. Partner Services means any services that a Partner performs on behalf of Company or a Partner Customer or Partner User under this Agreement.
32. Partner Customer means any individual or entity who licenses or receives access to the Protected Materials through a Partner.
33. Partner User means any individual who accesses the Protected Materials through a Partner Customer.
34. Partner Terms means the terms and conditions set forth at Partner Terms & Conditions that apply to Partners, Partner Customers, or Partner Users, as applicable.
35. Payment Services means the credit card processing and related services as described in the Payment Services Attachment.
36. Personnel means a Party’s employees, agents, contractors, and subcontractors.
37. Prior Agreement means any agreement, license, order form or other instrument through which You purchased or licensed from Us, or any of our predecessors or affiliates, software, services or other products.
38. Privacy Laws mean State law, HIPAA, HITECH, HIPAA regulations and other federal laws and regulations that govern the privacy of an individual’s personally identifiable information or Protected Health Information.
39. Professional Services means any customization and configuration services, consulting services, revenue cycle management (RCM) and billing services, data conversion and support services, implementation, deployment and integration services, site planning, training services, and any project management, requirements gathering/process design activities, and quality assurance testing and documentation to support new deliverables, each as specified in an applicable Statement of Work or Change Order.
40. Protected Health Information or PHI has the meaning ascribed to such term at 45 CFR § 160.103, which is the section of the Code of Federal Regulations that implements many of HIPAA’s requirements.
41. Protected Materials means Software and Services, Configurations, Documentation, customizations, training materials, or Company Intellectual Property or Confidential Information.
42. Software and Services means (i) Company-developed, licensed, or owned software in machine readable format, object code (not source code), the associated Database, the Documentation for any such software, and any associated Updates as described in its Documentation, (ii) licensed Third-Party Products and services integrated or offered with the software, and (iii) any hosting services offered in connection with the software.
43. Supplier or Licensor means any third party or organization that provides Us with (i) Third-Party Products, (ii) services or software that We use to perform Professional Services, Clearinghouse Services, E-Prescribing Services, Payment Services, or other services, or (iii) software or component software included or integrated in our Software and Services.
44. Surescripts Data means any data or information relating to Surescripts, or its services or operations, provided to Us as distributor and/or our distribution channel by or on behalf of Surescripts, including statistics collected by Surescripts regarding transactions processed by the Surescripts Network, test data, test cases, configuration information, and problem description and resolution information.
45. Surescripts Network means the Surescripts proprietary technology for a secure, nationwide, interoperable health information infrastructure, including Surescripts Materials, interfaces, functionality, and transaction maps made available by Surescripts to Us as distributor, as they may be further modified or developed by Surescripts from time to time.
46. Term means the period of time that the Agreement is effective between the Parties, as specified in the Order Form.
47. Transaction means any transaction(s) relating to payment for healthcare services provided by a Healthcare Provider, such as medical claims, encounters, patient statements, collection letters, inserts, referral letters and cards, eligibility verification, referral submission, referral inquiry, referral verification/authorization, and claims status.
48. Third-Party Products means any third-party products or services.
49. Treatment has the same meaning as set forth in 45 CFR § 164.501, as may be amended from time to time.
50. Updates means major and minor releases, maintenance releases, or corrections to the Software and Services. Updates exclude new products, modules, add-ons, features, or functionality for which We charge a separate fee.
51. Users means any individual to whom Access Credentials are issued (e.g. provider, staff member, client, or patient).

AMA Supplemental License Terms Attachment

These American Medical Association (“AMA”) Supplemental License Terms, as amended from time to time (“AMA Supplemental Terms”), constitute the supplemental license terms of the AMA as a third-party supplier to Company and an intended third-party beneficiary of the Agreement between Customer and Company. These AMA Supplemental Terms are hereby incorporated into the Agreement for all of Company’s products (“Company Product(s)”), without need for further action.

1. Grant of Rights, Restrictions, and Obligations:
   1. Company uses content from the print publication Current Procedural Terminology, Fourth Edition (CPT), which is copyrighted by the American Medical Association. CPT® is a registered trademark of the AMA.
   2. Company as a party to a license agreement with the AMA (“AMA License”) is authorized to grant Customer a limited, non-exclusive, non-transferable, non-sublicensable license for Customer to use CPT content in the Company Products for the sole purpose of internal use by Customer within the United States. The fees for the sublicense will be included on Customer’s invoice for the Company Products and collected by the Company from Customer for payment to the AMA. The sublicense granted hereunder shall automatically terminate upon termination of the AMA License unless prior written consent of AMA is obtained by the Company or a direct license between Customer and the AMA is entered.
   3. The provision of updated CPT content in the Company Products is dependent on a continuing contractual relationship between the Company and the AMA.
   4. Customer is prohibited from making CPT content publicly available, creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making the Company’s Products available to any unauthorized party, or making a copy or portion of CPT content available to any unauthorized party, including a subsidiary, affiliate, or other legal entity, however designated, for any purpose whatsoever except as expressly permitted in the Agreement.
   5. Customer expressly acknowledges and agrees, to the extent permitted by applicable law, use of the CPT content is at Customer’s sole risk and the CPT content is provided “as is” without warranty of any kind. The AMA does not directly or indirectly practice medicine or dispense medical services. Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT, and the AMA is not recommending their use. The CPT content does not replace the AMA’s Current Procedural Terminology book or other appropriate coding authority. The coding information contained in the CPT content should be used only as a guide.
   6. Customer is required to keep records and submit reports, including information necessary for the calculation of royalties payable to the AMA by the Company, of the same type as required of the Company under the AMA License. All records and reports required under this section shall be subject to audit by the AMA.
2. Notices:
   1. Customer understands and acknowledges that CPT is copyrighted by the AMA and that CPT is a registered trademark of the AMA.
   2. U.S. Government Customers. CPT is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. This Attachment does not grant the Federal Government a direct license to use CPT based on FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items).
3. Miscellaneous:
   1. Customer must ensure that anyone with authorized access to the Company’s Software and Services will comply with the provisions of these AMA Supplemental Terms.
   2. AMA shall be a third-party beneficiary of these AMA Supplemental Terms.
   3. Customer expressly consents to the release of its name to the AMA in connection with royalty payments for use of CPT content in the Company’s Software and Services.

Payment Processing Attachment

This Payment Processing Attachment (this “Attachment”) applies to our credit card processing services (“Payment Services”). You agree that You shall enter into one or more valid merchant processing agreements (each an “MPA”) with a third-party service provider approved by us, and You agree to launch Payment Services pursuant to the terms of Your Order Form. For the sake of clarity, we shall have no obligation to provide Payment Services to You until You have met Your obligation to enter into one or more MPAs with an approved service provider. Failure to enter into one or more MPAs will result in termination of our obligations hereunder.

1. Pricing: Customer agrees that pricing under this Attachment will be as set forth in the Customer’s applicable MPA.
2. Partner: Company may use third parties for Payment Services. In the event Company uses Vantage or Stripe for such services, Customer agrees, on behalf of itself and its authorized users, to the Vantage or Stripe MPA found here:
   http://www.vantagecard.com/Media/Default/files/Vantage-ProFac-Submerchant-Agreeement.pdf
   https://stripe.com/legal
3. Miscellaneous:
   1. Customer acknowledges that Company is not a financial or credit reporting institution. Company is responsible only for providing data transmission to effect or direct certain payment authorizations for Customer (or its customers) and is not responsible for the results of any credit inquiry, the operation of websites or internet service providers, financial institutions, financial processers, the availability of the internet, or for any damages or costs that Customer may suffer or incur as a result of any instructions given, actions taken or omissions made by Customer or its authorized users, Customer’s financial processer, financial institution, or internet service provider. Company is not a party to, and shall not be responsible for the resolution of, any dispute between Customer and a purchaser of Customer’s services.
   2. Customer is solely responsible for the accuracy and completeness of all data provided by Customer or its authorized users. Customer represents and warrants that Customer will comply with all laws and regulations applicable to Customer’s use of the Payment Services and agrees to use the Payment Services only as permitted by applicable law, including but not limited to export control and financial services laws and regulations.
   3. Company adheres to Payment Card Industry Data Security Standards (‘PCI DSS”) and reserves the right to temporarily suspend access to the Payment Services in order to minimize threats to the security and to protect operational stability and security of the Payment Services. Company does not guarantee the security of the Payment Services and will not be responsible for any infiltration of its security systems so long as Company has used commercially reasonable efforts to prevent such infiltration. In no event will Company be liable for transaction processing or other services performed by any third party.
   4. Customer acknowledges and agrees that Company shall have the right to suspend the Payment Services and terminate this Attachment upon the occurrence of any event giving rise to termination of an MPA between Customer and the third-party provider.
   5. Company may suspend Customer’s access to the Payment Services immediately, without advance notice, if: (i) certain third party licenses or access to third party components of the Payment Services are terminated; (ii) Customer causes or fails to fix a security breach relating to the Payment Services; (iii) Company reasonably believes Customer’s breach compromises the security of the Payment Services; (iv) Company reasonably believes fraudulent transactions are being submitted on Customer’s account; (v) Customer’s financial processer or financial institution requires such suspension; (vi) Customer fails to pay any fees when due; (vii) Customer fails to upgrade to the most current software version, security updates and/or patches; or (viii) Customer fails to materially comply with this Attachment or an MPA.
   6. Customer agrees that the disclaimers, exclusions, and limitations of remedies, liability and damages provisions set forth in any MPA between Customer and any Company-approved third party service provider are incorporated herein by reference and shall apply to the Payment Services provided by Company hereunder, the same as if those provisions were stated herein, with Company’s liability hereunder limited to the full extent allowed by such provisions.
4. Reimbursement for Chargebacks and Fees. Customer shall reimburse Company for any and all chargebacks, fees, fines, penalties, and other liabilities incurred by Company in connection with Customer’s use of Payment Services (collectively “Chargeback Amounts”). Chargeback Amounts include but are not limited to chargebacks, representation fees, retrieval fees, arbitration fees, fines, penalties, and other costs imposed by the payment processors.
   1. Invoice; Payment Terms. Company shall invoice Customer monthly for all Chargeback Amounts incurred in the previous month. Customer shall pay the invoiced Chargeback Amounts within fifteen (15) calendar days of the date of invoice. Any invoiced amounts not paid when due shall accrue interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
   2. Right of Setoff. Company shall have the right, in its sole discretion, to withhold or setoff any Chargeback Amounts owed by Customer pursuant to this clause against any amounts Company may owe Customer under any agreement between the parties.
   3. Disputes. Customer shall notify Company in writing of any dispute relating to an invoice for Chargeback Amounts within fifteen (15) calendar days of the date of invoice. The parties shall attempt in good faith to resolve the dispute expeditiously. Customer shall pay any undisputed portion of invoiced Chargeback Amounts in accordance with this clause pending resolution of the dispute.
   4. Customer Cooperation. Customer shall fully cooperate with Company in responding to any chargeback notifications and provide all supporting documentation requested by Company or the payment processors.
   5. Survival. This clause shall survive any termination of the agreement between the Parties. The termination of such agreement shall not relieve Customer of responsibility for reimbursing any Chargeback Amounts incurred prior to termination.
5. Payment Qualification Screening
   1. Prior to Customer being able to apply and be approved for credit card payment processing services by Company, Customer is required to go through a Payment Qualification Screening. Payment Qualification Screening is defined as a qualification review process conducted by Company that reviews the Customer’s credit, background, and other public or non-public information that can be gathered in order to assess if Customer is eligible for Company’s credit card payment processing services. Company has sole discretion on the assessment outcome and if customer eligibility is approved.
   2. Customer authorizes Company to conduct a Payment Qualification Check. In doing so, Customer grants Company a limited, non-exclusive, royalty-free, worldwide license to use, reproduce, aggregate, and modify the information Customer provides to Company in order to perform all acts necessary for Company to conduct the Payment Qualification Check.
   3. Customer agrees to provide the following information to Company in order to conduct the Payment Qualification Check:
      1. One piece of identification (as communicated by Company);
      2. Customer’s most recent IRS W-9 Form;
      3. Customer’s most recent utility bill; and
      4. Other personal information requested by Company.
   4. Company shall utilize the information provided by Customer solely to conduct a Payment Qualification Check, which may include, but not be limited to:
      1. Background Check;
      2. Credit Check;
      3. National Provider Identifier (NPI) Search; and
      4. Other checks or searches that Company deems necessary.
   5. Company may utilize subcontractors or third parties to conduct part or all of the Payment Qualification Checks. In the event Company requires additional information or has follow up questions, Customer agrees to provide the requested information in a reasonable timeframe. Upon the completion of the Payment Qualification Screening, Company shall advise Customer of the outcome and the appropriate next steps. In the event Customer does not pass the Payment Qualification Screening, Company may immediately terminate any and all services and agreements previously agreed upon between Customer and Company.
   6. As a condition of Company enabling Payment Services, Customer agrees to provide Company accurate and complete information about Customer and its business, and Customer authorizes Company to share such information along with transaction information related to Customer’s use of the Payment Services provided by any of the payment services providers used by Company.
6. LIMTATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S, AND SUPPLIERS’ TOTAL LIABILITY (INLCUDING ATTORNEYS’ FEES AWARDED IF APPLICABLE) TO CUSTOMER FOR ANY CLAIM BY CUSTOMER OR ANY THIRD PARTIES UNDER THIS ATTACHMENT, WILL BE LIMITED TO $100 USD.
7. Indemnification: Customer shall indemnify and hold harmless Company and its officers, directors, employees and agents (“Company Indemnified Parties”), from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) (“Losses”), arising, directly or indirectly, out of or relating to any claim, action or proceeding (a “Claim”) brought by a third party based on (i) a breach of this Attachment by Customer or any of its employees, (ii) the accuracy, quality, integrity, legality, reliability or appropriateness of Customer’s information; (iii) violation of any applicable law, rule or regulation by Customer or any of its employees, and/or (iv) Customer’s negligent acts or willful misconduct, or that of its personnel. Customer will pay all Losses (whether by settlement or award after a final non-appealable judicial judgment) incurred by the Company Indemnified Parties from any such claim.
8. Entire Agreement. This Attachment represents the complete and entire agreement between Company and Customer with respect to payment processing and supersedes any other prior or contemporaneous written or oral agreements with respect to the subject matter hereof.