Terms Of Use
PATIENT TERMS OF SERVICE AGREEMENT
Last Updated 1/11/2023
Welcome to Exact Healthcare! PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“TERMS“) CAREFULLY. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND EXACT HEALTHCARE, INC. (“EXACT HEALTHCARE,” “WE,” “US” OR “OUR“) governing your use, and Exact Healthcare’s provision to you of the Exact Healthcare platform, our website, or any content, information, services, features, or resources available or enabled thereon (collectively, the “Services“). Your use of the Services may be subject to any additional terms, conditions and policies that we separately post on the Services and any agreements that you have separately executed with Exact Healthcare (“Supplemental Terms“) which are incorporated by reference into these Terms, (together, the Agreement“). To the extent there is any conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.
BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: (i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (ii) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD; AND (iii) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (A) THE TERM “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (B) THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
SECTION 13 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT IF YOU DESIRE TO DO SO.
IF YOU PURCHASE A MEMBERSHIP SUBSCRIPTION FOR A TERM, THEN UPON EXPIRATION OF SUCH TERM THE MEMBERSHIP SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT YOUR PROVIDER’S THEN-CURRENT RATE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 4.2 BELOW.
1. HOW THE SERVICES WORK. Exact Healthcare offers a platform designed to facilitate medical providers’ (each a “Provider”, collectively “Providers”) provision of concierge, direct medical care, or other membership-based subscriptions to their patients (each subscription, a “Membership Subscription”, and each patient, a “Member”). For patients who subscribe, the Services aim to facilitate premium services from their Providers, including scheduling, billing, and direct communications.
THE SERVICES ARE INTENDED TO BE USED TO FACILITATE YOUR PROVIDER’S MEMBERSHIP SUBSCRIPTIONS. YOU AGREE THAT EXACT HEALTHCARE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY MEDICAL SERVICES RENDERED BY YOUR PROVIDER. ANY MEMBERSHIP SUBSCRIPTION SERVICES ARE PROVIDED BY PROVIDERS AND NOT BY EXACT HEALTHCARE, AND YOU ACCEPT SUCH SERVICES AT YOUR OWN RISK.
PROVIDERS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, OR AGENTS OF EXACT HEALTHCARE. EXACT HEALTHCARE DOES NOT PERFORM MEDICAL SERVICES AND DOES NOT EMPLOY OR ENGAGE PROVIDERS TO PERFORM SUCH OBLIGATIONS. YOU HEREBY ACKNOWLEDGE THAT EXACT HEALTHCARE DOES NOT SUPERVISE, DIRECT, CONTROL OR ACCEPT ANY RESPONSIBILITY FOR MEDICAL SERVICES RENDERED BY YOUR PROVIDER. YOU ALSO ACKNOWLEDGE THAT EXACT HEALTHCARE DOES NOT REPRESENT THAT YOUR PROVIDER WILL OFFER THE MEMBERSHIP SUBSCRIPTION IN COMPLIANCE WITH APPLICABLE LAWS, RULES, REGULATIONS, OR THIRD PARTY PAYOR CONTRACTS.
THE SERVICES DO NOT PROVIDE MEDICAL DIAGNOSIS, ADVICE OR TREATMENT, AND THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CALL 911.
2. REGISTRATION AND ACCOUNTS
2.1 Registration and Account Creation. In order to access and use certain features of the Services, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) your full name, email address, phone number, date of birth, password, and any other information prompted by the registration form. You agree to provide information required for your use of the Services that is, and to update such information so it remains true, accurate, current and complete. Before you create an Account, your Provider may be required to verify your eligibility. Prior to Provider approval, you will not be able to access the features and functions of the Services. Exact Healthcare reserves the rights to, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.
2.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Exact Healthcare of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. Exact Healthcare cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. ACCESS TO THE SERVICE
3.1 Access and Use. Subject to this Agreement, Exact Healthcare grants you a non-transferable, non-exclusive, revocable, limited right to access and use the Services solely for your own personal, noncommercial use.
3.2 Certain Restrictions. By accessing and using the Services you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other Exact Healthcare content (including images, text, page layout or form) of Exact Healthcare; (c) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (d) access or use the Services in order to build a similar or competitive website, product, or service; and (e) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Services, except as expressly permitted herein. Unless otherwise indicated, any future release, update, or other addition to the functionality of the Services shall be subject to this Agreement. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
3.3 Modification. Exact Healthcare reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Exact Healthcare will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
3.4 No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Exact Healthcare will have no obligation to provide you with any support or maintenance in connection with the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3.5 Ownership. Excluding any User Content that you may provide (defined in Section 5 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Exact Healthcare or Exact Healthcare’s suppliers. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 3.1. Exact Healthcare and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
4. PAYMENT AGREEMENT.
4.1 Payment Terms. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable, and Exact Healthcare shall collect such fees on behalf of your Provider. You must provide a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or other method of payment (“Payment Method”), as a condition to signing up for a Membership Subscription with a Provider via the Platform. Your Payment Method agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing your Payment Method and associated payment information to Stripe (as defined below), you agree that Exact Healthcare is authorized to immediately invoice your account for all fees and charges due and payable hereunder and that no additional notice or consent is required. You agree to update your Account in the event of any change in your billing address or the credit card account used for payment hereunder. Exact Healthcare reserves the right at any time to change its prices and billing methods, either immediately upon posting such changes to the Service or by e-mail delivery to you. Exact Healthcare uses Stripe (“Stripe”) as the third-party service provider for payment services (e.g., card acceptance and related services). By purchasing a Membership Subscription, you agree to be bound by the Stripe Privacy Policy: https://stripe.com/privacy, as amended from time to time, and hereby consent and authorize Exact Healthcare and Stripe to share any information and payment instructions you provide with third-party service provider(s) to the minimum extent required to complete your transactions. You also agree to be bound by Stripe’s Services Agreement: https://stripe.com/legal, as amended from time to time. All information that you provide to us or to Stripe must be accurate, current, and complete. By purchasing a Membership Subscription, you authorize Exact Healthcare via Stripe to charge your Payment Method in accordance with this Section 4, and you agree that Exact Healthcare is authorized to charge your Payment Method for all fees and charges due and payable hereunder and that no additional notice or consent is required. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT METHOD USED TO PAY ANY AMOUNTS OWED IN CONNECTION WITH THE SERVICES.
4.2 Automatic Renewal. Your Membership Subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period ends, your Membership Subscription will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at the then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least seven (7) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Exact Healthcare that your subscription will be automatically renewed, you will have seven (7) days from the date of such notice), by logging into your Account and adjusting your Membership Subscription settings. If you do not wish for your subscription to renew automatically, or if you want to change or terminate your subscription, please contact us at support@exacthealthcare.com or adjust the settings on your Account. If you cancel your Membership Subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. Exact Healthcare earns the Membership Subscription fee paid for the Services when you click “I ACCEPT,” or otherwise access or use any portion of the Services. As such , you will not be eligible for a prorated refund of any portion of the Membership Subscription fee already paid for the then-current subscription period unless otherwise required by law. By subscribing, you authorize Exact Healthcare (via Stripe) to charge your Payment Method now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Exact Healthcare does not receive payment from your Payment Method, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Exact Healthcare may either terminate or suspend your Membership Subscription and continue to attempt to charge your Payment Method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
4.3 Refunds. Exact Healthcare does not offer refunds, except as specified in Section 4.2; provided, however, that if your Provider terminates your Membership Subscription, then you will be refunded any fees paid but not yet earned by the Provider in connection with your Membership Subscription.
4.4 Taxes. The payments required under Section 4 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Exact Healthcare determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Exact Healthcare shall collect such Sales Tax in addition to the payments required under Section 4 of this Agreement. If any services or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Exact Healthcare, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Exact Healthcare for any liability or expense Exact Healthcare may incur in connection with such Sales Taxes. Upon Exact Healthcare’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5. USER CONTENT
5.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Services (e.g., content in the user’s profile). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. Do not include any personal health information in your User Content on the Services; rather discuss your health with your Provider directly in person or over the phone. You hereby represent and warrant that your User Content does not violate Section 6. You further represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Exact Healthcare. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section 6. Exact Healthcare is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
5.2 User Content Warranty. The Services are not intended to be used in connection with any sensitive content or data, including but not limited to information related to medical conditions or treatments (collectively “Sensitive Data”). You represent, warrant, and covenant that you shall not use the Services in connection with any Sensitive Data.
5.3 License. You hereby grant (and you represent and warrant that you have the right to grant) to Exact Healthcare an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in connection with the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate Section 6 or any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 11, and/or reporting you to law enforcement authorities.
5.5 Feedback. If you provide Exact Healthcare with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Exact Healthcare all rights in such Feedback and agree that Exact Healthcare shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Exact Healthcare will treat any Feedback you provide to Exact Healthcare as non-confidential and non-proprietary. You agree that you will not submit to Exact Healthcare any information or ideas that you consider to be confidential or proprietary.
6. ACCEPTABLE USE POLICY. You agree not to: (i) use the Services to upload, transmit, display, or distribute any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (ii) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (iii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iv) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (v) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (vi) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vii) interfere with any other user’s use and enjoyment of the Services; (viii) impersonate any person or entity, including any employee or representative of Exact Healthcare; or (ix) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
7. EXACT HEALTHCARE COMMUNICATIONS.
7.1 Generally. You may have the opportunity to provide us with your phone number or e-mail address. By providing your phone number or email address to us, you consent to receive SMS/text messages, and email communications from Exact Healthcare. Communications from us may include communications about your use of the Services.
7.2 Promotional Email Communications. If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
7.3 Electronic Communications. The communications between you and Exact Healthcare use electronic means, whether you use the Services or send us emails, or whether Exact Healthcare posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Exact Healthcare in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Exact Healthcare provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
8. INDEMNIFICATION. You agree to indemnify and hold Exact Healthcare (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of this Agreement; (d) submission of claims for reimbursement to any third party payor, or (e) your violation of applicable laws or regulations. Exact Healthcare reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Exact Healthcare. Exact Healthcare will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. DISCLAIMERS
9.1 THE SERVICES ARE INTENDED ONLY TO FACILITATE CONNECTIONS BETWEEN MEMBERS AND THEIR PROVIDERS, AND ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. WE HAVE NO LIABILITY FOR RESULTS IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE PERFORMANCE OR ADEQUACY OF PERFORMANCE OF A REQUEST, OR THE ACTIONS OR OMISSIONS OF A PROVIDER. YOU AGREE TO HOLD EXACT HEALTHCARE HARMLESS AND RELEASE ALL CLAIMS AGAINST EXACT HEALTHCARE RELATING IN ANY WAY TO THE PROVISION OR OUTCOMES OF MEDICAL DIAGNOSIS, ADVICE OR TREATMENT. EXACT HEALTHCARE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9.2 NOT MEDICAL SERVICES. THE SERVICES DO NOT PROVIDE MEDICAL DIAGNOSIS, ADVICE OR TREATMENT, AND THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. EXACT HEALTHCARE IS NOT A LICENSED HEALTH CARE PROVIDER, NOR DOES IT RENDER HEALTHCARE ADVICE OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR USING YOUR OWN JUDGEMENT IN ASSESSING THE VALIDITY AND USEFULNESS OF ANY RESULTS OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.
10. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EXACT HEALTHCARE (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF EXACT HEALTHCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO ONE HUNDRED ($100) DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EXACT HEALTHCARE AND YOU.
11. TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Services. You may terminate this Agreement at any time using the Exact Healthcare online user interface; however no refunds will be provided except as provided in Section 4.3. If you terminate this Agreement, Exact Healthcare reserves the right to decline to provide you Services in the future and/or require you to pay a re-enrollment fee as determined in Exact Healthcare’s sole discretion. Notwithstanding the foregoing, we reserve the right to suspend or terminate your rights to use the Services (including your Account) if: (i) you violate these Terms, (ii) if your Provider no longer participates in the Services, or (iii) if your Provider determines (at your Provider’s sole discretion), that you are no longer eligible to be served as a Member of a Membership Subscription. Upon termination of your rights under this Agreement, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Exact Healthcare will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account or deletion of your User Content. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: Sections 1, 3.2 – 3.5, and 4 – 14.
12. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Exact Healthcare intends to announce such services or content in your country. The Services are controlled and offered by Exact Healthcare from its facilities in the United States of America. Exact Healthcare makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. ARBITRATION AGREEMENT. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with Exact Healthcare and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Exact Healthcare, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Exact Healthcare may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent The Corporation Trust Company at 1209 Orange Street – Corporation Trust Center, City of Wilmington, County of New Castle, 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Exact Healthcare will pay them for you. In addition, Exact Healthcare will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
13.3 You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.4 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Exact Healthcare. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.5 Waiver of Jury Trial. YOU AND EXACT HEALTHCARE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Exact Healthcare are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.6 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
13.7 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: support@exacthealthcare.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Exact Healthcare username (if any), the email address you used to set up your Exact Healthcare account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.8 Severability. Except as provided in Section 16.5 (Waiver of Jury Trial), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.9 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Exact Healthcare.
13.10 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Exact Healthcare makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Exact Healthcare at the following address: 3064 Wake Forest Road #1123 Raleigh, North Carolina 27609.
14. GENERAL
14.1 Changes. You understand that the Services are evolving. You acknowledge and agree that Exact Healthcare may update the Services with or without notifying you. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earlier of: (i) thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable); (ii) thirty (30) calendar days following our posting of notice of the changes on our Services; and (iii) your providing assent to the updated Agreement in a specified manner, as applicable. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
14.2 Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Exact Healthcare, or any products utilizing such data, in violation of the United States export laws or regulations.
14.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Exact Healthcare agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Delaware.
14.4 Disclosures. Exact Healthcare is located at the address in Section 14.7. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.5 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Exact Healthcare is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Exact Healthcare’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Exact Healthcare may freely assign this Agreement. The terms and conditions set forth in these Agreement shall be binding upon assignees.
14.6 Copyright/Trademark Information. Copyright © 2022, Exact Healthcare, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any Exact Healthcare Marks will inure to Exact Healthcare’s benefit.
14.7 Contact Information:
Exact Healthcare, Inc.
Address: 3064 Wake Forest Road #1123 Raleigh, North Carolina 27609
Email: support@exacthealthcare.com
MEDICAL PRACTICE PLATFORM SERVICES AGREEMENT
Last Updated 1/11/2023
This Medical Practice Platform Services Agreement together with any applicable Orders or details confirmed in a Membership Plan (each as defined below) collectively constitute a binding agreement (the “Agreement“) between Exact Healthcare, Inc., a Delaware corporation (“Exact Healthcare“), and you or the legal entity you represent (“Customer“). The “Effective Date” of this Agreement shall be the earlier of (i) Customer’s acceptance of the terms of this Agreement by clicking on the “Create Account” button, or (ii) Customer’s use of the Exact Healthcare Services.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE EXACT HEALTHCARE SERVICE(S). BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE EXACT HEALTHCARE SERVICE(S), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EXACT HEALTHCARE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT. THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHALL NOT ACCESS OR USE THE EXACT HEALTHCARE SERVICES.
1. DEFINITIONS. In addition to terms defined in the body of this Agreement, as used in this Agreement:
1.1 ”Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Exact Healthcare Service.
1.2 ”Authorized User” means each of Customer’s employees, agents, and independent contractors who are provided user names and passwords and permitted hereunder to access the Exact Healthcare Service pursuant to Customer’s rights under this Agreement.
1.3 ”Customer Data” means any data, information, content, or materials supplied or made available by or on behalf of Customer and used in connection with the Exact Healthcare Service. For the avoidance of doubt, Customer Data expressly excludes Member Data.
1.4 ”Documentation” means the technical materials provided or made available by Exact Healthcare to Customer in hard copy or electronic form that describe the features, functionality or operation of the Exact Healthcare System.
1.5 ”Error” means a reproducible failure of the Exact Healthcare Service to substantially conform to the Documentation.
1.6 ”Exact Healthcare Service(s)” means the platform designed to facilitate Customer’s concierge medical memberships made available through the Exact Healthcare System, as offered by Exact Healthcare as a software-as-a-service subscription solution, and the related support services provided by Exact Healthcare hereunder.
1.7 ”Exact Healthcare System” means the technology, including software and Website, used by Exact Healthcare to deliver the Exact Healthcare Service to Customer.
1.8 ”Exact Healthcare Technology” means the Exact Healthcare Service, Exact Healthcare System, Documentation, results of Professional Services, all software and all Exact Healthcare proprietary information and technology used by Exact Healthcare or provided to Customer in connection with the Exact Healthcare Service, and Aggregated and Anonymous Data (as the foregoing are defined herein).
1.9 ”Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.10 ”Members” means any individuals, including patients of Customer, served and authorized by Customer to access and use the Member Application who have agreed to Exact Healthcare’s corresponding terms and conditions (the “Member Terms of Service”) prior to access and use of the Member Application.
1.11 ”Member Data” means data uploaded or transmitted by or on behalf of an Member to the Member Application.
1.12 ”Member Application” means the Member-facing portal or application made available to Members by Exact Healthcare in connection with the Exact Healthcare Services, which may be branded by Customer if agreed by the parties.
1.13 ”Performance Data” means any analytics or similar data collected, generated or processed by Exact Healthcare based on Customer’s access to and use of the Exact Healthcare Service.
1.14 ”Order” means any ordering document signed or acknowledged by both parties in writing that references this Agreement.
1.15 ”Website” means this website and any other websites of Exact Healthcare, its affiliates or agents.
2. EXACT HEALTHCARE SERVICE.
2.1 Subscription to the Exact Healthcare Service. Subject to the terms and conditions of this Agreement , Exact Healthcare hereby grants to Customer, during the term of this Agreement, a non-sub-licensable, non-transferable, non-exclusive right, solely for Customer’s internal use, to: (a) access and use the Exact Healthcare Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the Exact Healthcare Service.
2.2 Access. In connection with creating an account on the Exact Healthcare Service, Customer may create one or more membership plans (each a “Membership Plan, collectively, the “Membership Plans”). Each Membership Plan will designate Authorized Users (as defined below), and include details on pricing, and other relevant information to the plans Customer will offer via the Membership Application. Exact Healthcare will provide Customer with access to the Exact Healthcare Service for the duration of each Membership Plan. Customer may authorize additional users as Authorized Users of the Exact Healthcare Service. Customer and all Authorized Users shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Exact Healthcare Service, and notify Exact Healthcare promptly of any such unauthorized use known to Customer.
2.3 Authorized Users. Subject to any limitations set forth in this Agreement or an applicable Membership Plan, Customer may permit any Authorized Users to access and use the features and functions of the Exact Healthcare Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Exact Healthcare Service. User IDs cannot be shared or used by more than one Authorized User at a time.
2.4 Member Application Accounts. Customer acknowledges and agrees that prior to registering for an account on the Member Application, each Member will be required to agree to the Member Terms of Service and will be granted access to the Member Application with separate access protocols that Exact Healthcare makes available directly to the Member. Customer is not subject to the Member Terms of Service, or any other click-through or preprinted terms and conditions provided by Exact Healthcare or any of its licensors unless Customer explicitly agrees to the same in writing. Customer acknowledges and agrees that Member Data will be processed by or on behalf of Exact Healthcare subject to the Member Terms of Service and Exact Healthcare’s then-current privacy policy.
2.5 Restrictions and Covenants. Customer will not, and will not permit any Authorized User or third party to: (a) use the Exact Healthcare Service to harvest, collect, gather or assemble information or data regarding other (i.e., non-Customer) Exact Healthcare users, including Members, without both the user’s and Exact Healthcare’s consent; (b) access or copy any data or information of other Exact Healthcare users without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Exact Healthcare Service or the data contained therein; (d) harass or interfere with another Exact Healthcare user’s use and enjoyment of the Exact Healthcare Service or a Members’ use and enjoyment of messages or content received in connection with the Exact Healthcare Service; (e) reverse engineer, disassemble or decompile any component of the Exact Healthcare System; (f) interfere in any manner with the operation of the Exact Healthcare Service or the Exact Healthcare System or the hardware and network used to operate the Exact Healthcare Service; (g) copy or make derivative works based on any part of the Exact Healthcare System; (h) directly sublicense any of Customer’s rights under this Agreement, or otherwise use the Exact Healthcare Service for the benefit of a third party or to operate a service bureau; (i) Use the Exact Healthcare Service as a medical record repository or to deliver medical diagnoses, conduct medical coding, or submit claims or requests for reimbursement from any third-party payor; or (j) otherwise use the Exact Healthcare Service in any manner that exceeds the scope of use permitted under this Agreement. Customer acknowledges and agrees that the Exact Healthcare Service will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer represents, warrants and covenants that: (x) Customer’s use of the Exact Healthcare Service will comply with all applicable laws and regulations, including the CAN-SPAM Act of 2003,the Telephone Consumer Protection Act of 1991 and the terms of this Agreement; (y) Customer has obtained all rights, licenses, consents and releases that are necessary to display the Customer Data and otherwise make its services available to Members via the Exact Healthcare Service; and (z) Customer will not use the Exact Healthcare Service to deliver or operate emergency support lines.
2.6 Support. Subject to the terms of this Agreement, Exact Healthcare shall use commercially reasonable efforts to maintain the security and availability of, and to correct Errors in, the Exact Healthcare Service.
3. EXACT HEALTHCARE PROPRIETARY RIGHTS.
3.1 Generally. Customer acknowledges that as between the parties, Exact Healthcare retains all right, title and interest (including all Intellectual Property Rights) in and to the Exact Healthcare Technology, and that other than as expressly set forth in this Agreement, no license or other rights in the Exact Healthcare Technology are granted to Customer.
3.2 Third Party Software. The Exact Healthcare Service may utilize, contain or otherwise use certain third-party software (collectively, the “Third-Party Software”). Third-Party Software may be subject to additional licensing terms, which Exact Healthcare may deliver or make available from time to time to Customer, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
3.3 Feedback. From time to time Customer or its agents may provide suggestions, enhancement requests, recommendations, corrections, or other feedback to Exact Healthcare with respect to the Exact Healthcare Technology (“Feedback”). Customer acknowledges and agrees that all Feedback and all Intellectual Property Rights therein are the exclusive property of Exact Healthcare, and hereby assigns to Exact Healthcare on an exclusive basis all right, title and interest thereto.
3.4 Performance Data. Performance Data will be owned by Exact Healthcare, and Exact Healthcare may collect and use such Performance Data for any lawful purpose, provided that, Exact Healthcare will only disclose Performance Data to third parties, including its subcontractors, for the purposes of facilitating the Exact Healthcare Service; for internal purposes, including to improve its products and services; to perform its other obligations and exercise its rights under this Agreement; or as otherwise required by law.
4. PROFESSIONAL SERVICES. Where the parties have agreed to Exact Healthcare’s provision of integration, design, development, operational, marketing, and other professional services (“Professional Services”), they will enter into an Order specifically governing the provision of the Professional Services. To the extent that a conflict arises between the terms and conditions of the Order and the terms of this Agreement, the terms and conditions of this Agreement will govern. The Order will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product, if applicable, resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in Exact Healthcare immediately); (iv) Exact Healthcare’s then-current rates for the performance of the Professional Services; and (v) and any other obligations or covenants as required.
5. PAYMENTS AND FEES.
5.1 Member Subscriptions. Customers shall charge to Members a recurring membership subscription fee in an amount to be determined by Customer, which can be set in “Subscription Plans” section of Customer’s online account. Exact Healthcare shall collect payment from Member on behalf of Customer through the Member Application. Exact Healthcare will provide, through the Exact Healthcare Service, a means by which appropriate consents for recurring memberships may be obtained by Customer. Exact Healthcare shall also provide a mechanism through which the Exact Healthcare Service for Members to immediately cancel their subscriptions in accordance with applicable laws. Notwithstanding the forgoing, Customer is responsible for compliance with all applicable laws pertaining to recurring subscriptions in connection with its provision of membership services to Members, including Federal, State, and local laws, rules, regulations, and policies, which may change from time to time. Exact Healthcare makes no representations or warranties with respect to compliance with such laws through the Exact Healthcare Service. Exact Healthcare may provide guidance to Customers regarding applicable Federal laws or regulations, but it remains at all times Customer’s ongoing responsibility to ensure compliance with all relevant laws, rules, regulations, and policies relating to Customer’s use of Exact Healthcare Services and offering Exact Healthcare Services to its Members. Furthermore, it remains at all times Customer’s responsibility to ensure that offering Exact Healthcare Services to its Members does not violate any other obligations or contracts Customer has, including with commercial or governmental payors. Member payments shall be processed by Exact Healthcare (via Exact Healthcare’s third-party payment processor) in accordance with the provisions of Section 5.2. Exact Healthcare reserves the right to determine payment methods available to Members, such as payment via credit, debit or prepaid card, or via a linked bank account. Customer agrees and understands that Exact Healthcare retains the right, in its sole discretion, to hold any subscription fees, or other funds, processed on behalf of Member based on Exact Healthcare’s reasonable belief that there is a risk associated with Customer’s use of the Exact Healthcare Services or any payments processed on behalf of Customer pursuant to this Agreement. Any hold placed on funds pending settlement to Customer will be lifted when the matter is resolved to the satisfaction of Exact Healthcare. In the event of any chargeback, reversal, or refund initiated by Member with respect to a Member subscription, Exact Healthcare may request additional information from you to assist in addressing the dispute. Customer agrees to cooperate fully and provide all information requested by Exact Healthcare in connection with the matter, provided that no information prohibited from disclosure by applicable law shall be shared with Exact Healthcare. Customer agrees and understands that any chargebacks, refunds, reversals, or other similar charges incurred by Exact Healthcare in connection with the processing of Member Subscriptions shall be offset against Customer Fees, as defined and described in Section 5.2.
5.2 Customer Appointment of Exact Healthcare as Payments Agent. Customer appoints Exact Healthcare as its limited payments agent for the sole purpose of receiving, holding and settling payments due to Customer for membership subscription fees paid by Members. Exact Healthcare will settle payments that are actually received by Exact Healthcare to Customer, less any amounts owed to Exact Healthcare, including fees and other obligations, subject to this Agreement and as set forth in the applicable Membership Plan (the “Customer Fees”). Customer agrees that a payment received by Exact Healthcare, on behalf of Customer, satisfies the Member’s obligation to make payment to Customer, regardless of whether Exact Healthcare actually settles such payment to Customer. If Exact Healthcare does not settle any such payments as described in this Agreement to Customer, such Customer will have recourse only against Exact Healthcare and not the Member, as payment is deemed made by Member to Customer upon constructive or actual receipt of funds by Exact Healthcare. In accepting this appointment as Customer’s limited payments agent, Exact Healthcare assumes no liability for any acts or omission by Customer, and Customer understands that Exact Healthcare’s obligation to settle funds to Customer is subject to and conditional upon the Member’s actual payment.
5.3 Fees Owed by Customer To Exact Healthcare. The fees owed by Customer to Exact Healthcare will be equal to a percentage of the received Customer Fees. The percentage figure is viewable on Customer’s profile on the Exact Healthcare System. The percentage can be changed by Exact Healthcare upon thirty (30) days written notice to Customer.
5.4 Accounting; Payments to Customer. Unless otherwise agreed between the parties, on a monthly basis, Exact Healthcare shall submit to Customer an accounting of all Customer Fees processed on behalf of Customer, and shall, pursuant to the terms of an applicable Membership Plan, deliver payment to Customer via check or any other payment method that Exact Healthcare makes available (as selected by Customer). Customer will immediately notify Exact Healthcare of any change in Customer’s mailing address for payments hereunder. Customer is responsible for the timely depositing of any check payment received from Exact Healthcare. Customer shall notify Exact Healthcare immediately of any check not received or that is otherwise believed to be lost or stolen. Customer agrees and understands that it shall be liable for any stop payment fees or other costs incurred by Exact Healthcare in the event of a check that is lost or stolen after delivery to Customer.
5.5 Taxes. The fees are exclusive of, and Customer will pay, all sales, use, excise, income, and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes for Exact Healthcare employees and taxes based on Exact Healthcare’s net income.
6. CUSTOMER PROPRIETARY RIGHTS.
6.1 Customer Marks. Solely to the extent necessary to provide the Exact Healthcare Service and to perform Professional Services, Customer hereby grants to Exact Healthcare a term-limited, non-exclusive, worldwide, royalty-free and fully paid license to access, use, reproduce, modify and display the Customer’s trademarks, logos and service marks (“Customer Marks”), subject to Customer’s prior written approval on a periodic basis (it being understood that approval shall be deemed given for general use cases, and that individual approval for each similar use is not required). Customer owns all rights in and to the Customer Marks.
6.2 Customer Data.
(a) Ownership; License. The Customer Data hosted by Exact Healthcare as part of the Exact Healthcare Service, and all worldwide Intellectual Property Rights therein, is the exclusive property of Customer. Customer hereby grants to Exact Healthcare a non-exclusive, worldwide, royalty-free and fully paid license to access, use, reproduce, modify and display the Customer Data for the purposes of (a) providing, training and improving the Exact Healthcare Technology, (b) generating Aggregated and Anonymous Data (as defined below), (c) exercising its rights and obligations under this Agreement, and (d) complying with its obligations under law. All rights in and to the Customer Data not expressly granted to Exact Healthcare in this Agreement are reserved by Customer.
(b) Aggregate and Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Exact Healthcare may obtain and use Customer Data and Performance Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Customer or any individual or entity (the “Aggregated and Anonymous Data”). Customer further agrees that Exact Healthcare shall own such Aggregated and Anonymous Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.
(c) Data Representations. Customer represents and warrants that any Customer Data hosted by Exact Healthcare as part of the Exact Healthcare Service shall not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, laws or regulations; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; (d) otherwise violate the rights of a third party; or (e) other than PHI (as defined below) or other individually identifiable health information governed by applicable law pertaining to health information, consist of data regulated by PCI, GDPR, or any other regulations or privacy laws pertaining to sensitive information. Exact Healthcare is not obligated to back up any Customer Data. Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer agrees that any use of the Exact Healthcare Service contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Exact Healthcare Service.
(d) Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order the access the Exact Healthcare Service. Customer is encouraged to make its own back-ups of the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
7. MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that: (a) it has the requisite power and authority to enter into, deliver and perform the obligations under this Agreement; (b) this is a valid and legally binding Agreement enforceable against it and its business; (c) by entering into this Agreement, neither party is violating or in non-compliance with any other contractual or legal obligations the party has.
8. LIMITED WARRANTY; DISCLAIMER.
8.1 Exact Healthcare warrants to Customer that, when used as permitted by Exact Healthcare and in accordance with the Documentation, the Exact Healthcare Service will operate materially free from Errors during the term of the Agreement. Customer’s exclusive remedy, and Exact Healthcare’s sole obligation, for breach of the foregoing warranty during the term hereof shall be Exact Healthcare’s efforts to correct Errors pursuant to Section 2.6 herein.
8.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXACT HEALTHCARE SERVICE, EXACT HEALTHCARE SYSTEM, AND DOCUMENTATION ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND EXACT HEALTHCARE AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, RELATING TO THE EXACT HEALTHCARE SERVICE, EXACT HEALTHCARE SYSTEM, AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. EXACT HEALTHCARE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE EXACT HEALTHCARE SERVICE AND THE EXACT HEALTHCARE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
8.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXACT HEALTHCARE SERVICES AND PROFESSIONAL SERVICES DO NOT, AND ARE NOT INTENDED TO, PROVIDE MEDICAL DIAGNOSIS, ADVICE OR TREATMENT. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT EXACT HEALTHCARE IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS, ANY LIABILITY IN CONNECTION WITH OR RELATED TO (I) MEDICAL SERVICES RENDERED BY CUSTOMER TO END USERS OR ANY OTHER THIRD PARTIES, (II) ANY MEDICAL OUTCOMES OF END USERS OR ANY OTHER THIRD PARTIES, AND/OR (III) THE SUBMISSION OF REQUESTS FOR PAYMENT TO, OR THE RECEIPT OF PAYMENTS FROM, THIRD PARTY PAYORS FOR SUCH MEDICAL OR OTHER TREATMENT SERVICES. CUSTOMER UNDERSTANDS THAT THE EXACT HEALTHCARE SERVICE IS NOT, AND IS NOT INTENDED TO BE USED AS, A MEDICAL RECORDS REPOSITORY. CUSTOMER IS SOLELY RESPONSIBLE FOR MEETING THE MEDICAL RECORDS RETENTION REQUIREMENTS APPLICABLE TO CUSTOMER. CUSTOMER AGREES THAT CUSTOMER WILL NOT USE, OR ATTEMPT TO USE, THE EXACT HEALTHCARE SERVICE FOR ANY MEDICAL RECORDS RETENTION OR OTHER SIMILAR PURPOSES.
9. LIMITATION OF LIABILITY.
9.1 Generally. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE EXACT HEALTHCARE SERVICE, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT, AND REGARDLESS WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL EXACT HEALTHCARE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“LIABILITY CAP”). NOTWITHSTANDING THE FOREGOING, A FIVE HUNDRED THOUSAND DOLLAR ($500,000) SUPER CAP (“SUPER CAP”) APPLIES TO ANY LIABILITY ARISING FROM EITHER PARTY’S BREACH OF THE BAA. FOR PURPOSES OF CLARITY, AMOUNTS PAID UNDER THE SUPER CAP SHALL ALSO COUNT TOWARDS THE LIABILITY CAP. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9.2 Basis of the Bargain. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN EXACT HEALTHCARE AND CUSTOMER. EXACT HEALTHCARE’S FEES FOR THE SERVICES RENDERED HEREUNDER REFLECT THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
9.3 Exclusions. THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO: (A) A BREACH BY CUSTOMER OF SECTION 2; (B) CUSTOMER’S INDEMNIFICATION OBLIGATIONS; OR (C) WILLFUL MISCONDUCT.
10. CONFIDENTIALITY.
10.1 ”Confidential Information” means any nonpublic information of a party (the “Disclosing Party“), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party“) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, the Exact Healthcare Service, Exact Healthcare System, and Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Exact Healthcare. Information will not constitute the other party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party will not use or disclose any Confidential Information except as expressly authorized by this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event less than reasonable care. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.2 BAA. To the extent that the Customer provides Exact Healthcare with any protected health information (as defined in as defined in 45 C.F.R. 160.103) (“PHI“) under this Agreement, the parties’ use and disclosure of such PHI shall be governed by the Business Associate Agreement, attached hereto as Exhibit A (“BAA“), which is concurrently entered into herewith and fully incorporated herein. PHI shall not be considered Confidential Information under this Agreement and will be treated solely in accordance with the BAA. For the avoidance of doubt, to the extent that Customer is not a “covered entity” under HIPAA, the parties agree that Customer is not providing Exact Healthcare with PHI and, therefore, the BAA shall not apply.
11. INDEMNIFICATION
11.1 By Exact Healthcare. Exact Healthcare will defend at its expense any suit brought against Customer, and will pay any settlement Exact Healthcare makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the permitted use of the Exact Healthcare Service infringes, misappropriates or violates any third party Intellectual Property Rights. If any portion of the Exact Healthcare Service or the Exact Healthcare System becomes, or in Exact Healthcare’s opinion is likely to become, the subject of a claim of infringement, Exact Healthcare may, at Exact Healthcare’s option: (a) procure for Customer the right to continue using the Exact Healthcare Service; (b) replace the Exact Healthcare Service with non-infringing software or services which do not materially impair the functionality of the Exact Healthcare Service; (c) modify the Exact Healthcare Service so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Exact Healthcare for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Exact Healthcare Service, Exact Healthcare System, and Documentation. Notwithstanding the foregoing, Exact Healthcare shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Exact Healthcare Service not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Exact Healthcare Service in combination with other products, equipment, software or data not supplied by Exact Healthcare; or (z) any modification of the Exact Healthcare Service by any person other than Exact Healthcare or its authorized agents (collectively, “Exclusions“). This Section states Exact Healthcare’s entire liability and Customer’s sole and exclusive remedy for the claims and actions described herein.
11.2 By Customer. Customer will defend at its expense any suit brought against Exact Healthcare, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or relating to: (a) an Exclusion; (b) Customer’s breach of contract (including contracts with third party payors) or noncompliance with laws, rules, regulations, or agency policies or decisions; and (c) any claims by Members, including but not limited to claims relating to Customer’s provision of medical services to Members, or claims related to Exact Healthcare’s permitted use of Customer Data (other than to the extent resulting from Exact Healthcare’s breach of this Agreement). This Section sets forth Customer’s entire liability and Exact Healthcare’s sole and exclusive remedy for the claims and actions described herein.
11.3 Procedure. Any party that is seeking to be indemnified under the provisions of this Section (an “Indemnified Party“) must (a) promptly notify the other party (the “Indemnifying Party“) in writing of any third-party claim, suit, or action for which it is seeking an indemnity hereunder, (b) give the Indemnifying Party sole control over the defense of such claim, suit or action and any related settlement negotiations, and (iii) cooperating and, at Indemnifying Party’s reasonable request and expense, assisting in such defense.
12. TERM AND TERMINATION
12.1 Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with this Agreement or upon the expiration of all Membership Plans (whichever occurs first) (the “Term“). The Exact Healthcare Service is made available to Customer on a subscription basis. Each Membership Plan begins on the date such Membership Plan is created, and continues until such Membership Plan is terminated as set forth herein.
12.2 Termination. Customer may terminate this Agreement at any time upon sixty (60) days’ written notice to Exact Healthcare. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) any amounts owed to Exact Healthcare under this Agreement will become immediately due and payable; and (c) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party. The sections and subsections titled Definitions, Restrictions and Covenants, Exact Healthcare Proprietary Rights, Fees and Expenses; Payment, Customer Proprietary Rights (excluding any term-limited license grants), Mutual Representations and Warranties, Limited Warranty; Disclaimer, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous, and any other provisions which should by their nature survive expiration or termination, will survive expiration or termination of this Agreement for any reason. During the period commencing on the effective date of any termination or expiration of this Agreement and ending thirty (30) calendar days thereafter, Exact Healthcare will use commercially reasonable efforts to export Customer Data contained in the Exact Healthcare System and will provide such Customer Data to Customer, upon Customer’s request.
13. MARKETING; PUBLICITY. Customer agrees that (in addition to the express license granted above) Exact Healthcare may use the Customer Marks, subject to Customer’s then-current trademark usage guidelines, in Exact Healthcare’s marketing materials or communications (including, but not limited to, Exact Healthcare Website and in Exact Healthcare’s marketing presentations) for the sole purpose of indicating Customer as a customer of the Exact Healthcare Service. Neither party will issue a press release announcing its relationship with the other party without the other party’s prior approval, not to be unreasonably withheld or delayed. Subject to the terms and conditions of this Agreement, Customer hereby grants to Exact Healthcare a non-exclusive and limited license to use and publicly display Customer’s logo as set forth in this Section.
14. MISCELLANEOUS
14.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Exact Healthcare’s principal place of business is located for any lawsuit filed there against Customer by Exact Healthcare arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Exact Healthcare Service, Exact Healthcare System or Documentation.
14.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Exact Healthcare, or any products utilizing such data, in violation of the United States export laws or regulations.
14.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.5 No Assignment. Customer shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Exact Healthcare, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Customer may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
14.6 Force Majeure. Exact Healthcare will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of Exact Healthcare.
14.7 Independent Contractors. Customer’s relationship to Exact Healthcare is that of an independent contractor, and, with the exception of the limited payments agency established by Section 5.2, neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Exact Healthcare.
14.8 Notices. All notices or other communications required or permitted under this Agreement will be in writing to the other party at the address listed on the signature page and will be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and will be deemed given upon personal delivery or upon confirmation of receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
14.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
14.10 Electronic Communications. For contractual purposes, you (a) consent to receive communications from Exact Healthcare in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Exact Healthcare provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
14.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of the parties.
Exhibit A
BAA
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (this “Agreement“) by and between the Customer (“Covered Entity“) and Exact Healthcare, Inc. (“Business Associate“) is entered for the purposes of complying with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder (“HIPAA“) and the security provisions of the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act“). The “Effective Date” of this Agreement shall be the earlier of (i) Customer’s acceptance of the terms of the above Services Agreement or (ii) Customer’s use of the Exact Healthcare Services.
WITNESSETH
WHEREAS, Covered Entity is a covered entity as such term is defined under HIPAA and as such is required to comply with the requirements thereof regarding the confidentiality and privacy of Protected Health Information; and
WHEREAS, Business Associate has entered or may enter into an agreement or agreements with Covered Entity (“Service Agreement”), pursuant to which Business Associate may receive Protected Health Information for or on behalf of Covered Entity; and
WHEREAS, by providing services pursuant to the Service Agreement and receiving Protected Health Information for or on behalf of Covered Entity, Business Associate shall become a Business Associate of Covered Entity, as such term is defined under HIPAA, and will therefore have obligations regarding the confidentiality and privacy of Protected Health Information that Business Associate receives from or on behalf of, Covered Entity.
NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, capitalized terms shall have the meanings ascribed to them below. All capitalized terms used but not otherwise defined herein will have the meaning ascribed to them by HIPAA.
(a) ”Protected Health Information” or “PHI” is any information, whether oral or recorded in any form or medium that is created, received, maintained, or transmitted by Business Associate for or on behalf of Covered Entity, that identifies an individual or might reasonably be used to identify an individual and relates to: (i) the individual’s past, present or future physical or mental health; (ii) the provision of health care to the individual; or (iii) the past, present or future payment for health care.
(b) ”Secretary” shall refer to the Secretary of the U.S. Department of Health and Human Services.
(c) ”Unsecured PHI” shall mean PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary (e.g., encryption). This definition applies to both hard copy PHI and electronic PHI.
2. OBLIGATIONS OF BUSINESS ASSOCIATE.
(a) General Compliance with Law
Business Associate warrants that it, its agents and its subcontractors: (i) shall use or disclose PHI only in connection with fulfilling its duties and obligations under this Agreement and the Service Agreement; (ii) shall not use or disclose PHI other than as permitted or required by this Agreement or required by law; (iii) shall not use or disclose PHI in any manner that violates applicable federal and state laws or would violate such laws if used or disclosed in such manner by Covered Entity; and (iv) shall only use and disclose the minimum necessary PHI for its specific purposes.
(b) Use and Disclosure of Protected Health Information
Subject to the restrictions set forth throughout this Agreement, Business Associate may use the information received from Covered Entity if necessary for (i) the proper management and administration of Business Associate; or (ii) to carry out the legal responsibilities of Business Associate.
Subject to the restrictions set forth in throughout this Agreement, Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that: (i) disclosures are required by law, or (ii) Business Associate obtains reasonable assurances from the person or entity to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person or entity, and the person or entity notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
Business Associate is permitted, for Data Aggregation purposes to the extent permitted under HIPAA, to use, disclose, and combine PHI created or received on behalf of Covered Entity by Business Associate pursuant to this Agreement with PHI, as defined by 45 C.F.R. 160.103, received by Business Associate in its capacity as a business associate of other covered entities, to permit data analyses that relate to the Health Care Operations of the respective covered entities and/or Covered Entity.
Business Associate may de-identify any and all PHI created or received by Business Associate under this Agreement. Once PHI has been de-identified pursuant to 45 CFR 164.514(b), such information is no longer Protected Health Information and no longer subject to this Agreement.
Business Associate acknowledges that, as between Business Associate and Covered Entity, all PHI shall be and remain the sole property of Covered Entity, including any and all forms thereof developed by Business Associate in the course of its fulfillment of its obligations pursuant to the Agreement and Service Agreement.
(c) Covered Entity Obligations
To the extent that Business Associate is to carry out any of Covered Entity’s obligations that are regulated by HIPAA, Business Associate shall comply with the HIPAA requirements that apply to the Covered Entity in the performance of such obligation.
(d) Safeguards
Business Associate shall employ appropriate administrative, technical and physical safeguards, consistent with the size and complexity of Business Associate’s operations, to protect the confidentiality of PHI and to prevent the use or disclosure of PHI in any manner inconsistent with the terms of this Agreement. Business Associate shall comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of such electronic PHI other than as provided for by this Agreement.
(e) Availability of Books and Records
Business Associate shall permit the Secretary and other regulatory and accreditation authorities to audit Business Associate’s internal practices, books and records at reasonable times as they pertain to the use and disclosure of PHI in order to ensure that Covered Entity and/or Business Associate is in compliance with the requirements of HIPAA.
(f) Individuals’ Rights to Their PHI
(i) Access to Information
To the extent Business Associate maintains PHI in a Designated Record Set, in order to allow Covered Entity to respond to a request by an Individual for access to PHI pursuant to 45 CFR Section 164.524, Business Associate, within ten (10) business days upon receipt of written request by Covered Entity, shall make available to Covered Entity such PHI. In the event that any Individual requests access to PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Business Associate will make no such determinations. Except as Required by Law, only Covered Entity will be responsible for releasing PHI to an Individual pursuant to such a request. Any denial of access to PHI determined by Covered Entity pursuant to 45 CFR Section 164.524, and conveyed to Business Associate by Covered Entity, shall be the responsibility of Covered Entity, including resolution or reporting of all appeals and/or complaints arising from denials.
(ii) Amendment of Information
To the extent Business Associate maintains PHI in a Designated Record Set, in order to allow Covered Entity to respond to a request by an Individual for an amendment to PHI, Business Associate shall, within ten (10) business days upon receipt of a written request by Covered Entity, make available to Covered Entity such PHI. In the event that any Individual requests amendment of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for an amendment to PHI and Business Associate will make no such determinations. Any denial of amendment to PHI determined by Covered Entity pursuant to 45 CFR Section 164.526, and conveyed to Business Associate by Covered Entity, shall be the responsibility of Covered Entity, including resolution or reporting of all appeals and/or complaints arising from denials.
Within ten (10) business days of receipt of a request from Covered Entity to amend an individual’s PHI in the Designated Record Set, Business Associate shall incorporate any approved amendments, statements of disagreement, and/or rebuttals into its Designated Record Set as required by 45 CFR Section 164.526.
(iii) Accounting of Disclosures
In order to allow Covered Entity to respond to a request by an Individual for an accounting pursuant to 45 CFR Section 164.528, Business Associate shall, within ten (10) business days of a written request by Covered Entity for an accounting of disclosures of PHI about an Individual, make available to Covered Entity such PHI. At a minimum, Business Associate shall provide Covered Entity with the following information: (a) the date of the disclosure; (b) the name of the entity or person who received the PHI, and if known, the address of such entity or person; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of such disclosure. In the event that any Individual requests an accounting of disclosures of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days. Covered Entity will be responsible for preparing and delivering an accounting to Individual. Business Associate shall implement an appropriate record keeping process to enable it to comply with the requirements of this Agreement.
(g) Disclosure to Subcontractors and Agents
Notwithstanding anything to the contrary in the Services Agreement or this Agreement, Business Associate, subject to the restrictions set forth in this provision, may use subcontractors to fulfill its obligations under this Agreement. Business Associate shall obtain and maintain a written agreement with each subcontractor or agent that has or will have access to PHI, which is received from, or created or received by, Business Associate for or on behalf of Covered Entity, pursuant to which such subcontractor and agent agrees to be bound by the same restrictions, terms, and conditions that apply to Business Associate under this Agreement with respect to such PHI.
(h) Reporting Obligations
In the event of a Breach of any Unsecured PHI that Business Associate accesses, maintains, retains, modifies, records, or otherwise holds or uses on behalf of Covered Entity, Business Associate shall report such Breach to Covered Entity as soon as practicable, but in no event later than ten (10) business days after the date the Breach is discovered. Notice of a Breach shall include, to the extent such information is available: (i) the identification of each individual whose PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed during the Breach; (ii) the date of the Breach, if known, and the date of discovery of the Breach; (iii) the scope of the Breach; and (iv) the Business Associate’s response to the Breach.
In the event of a use or disclosure of PHI that is improper under this Agreement but does not constitute a Breach, Business Associate shall report such use or disclosure to Covered Entity within ten (10) business days after the date on which Business Associate becomes aware of such use or disclosure.
In the event of any successful Security Incident, Business Associate shall report such Security Incident in writing to Covered Entity within ten (10) business days of the date on which Business Associate becomes aware of such Security Incident. The parties acknowledge that unsuccessful Security Incidents that occur within the normal course of business shall not be reported pursuant to this Agreement. Such unsuccessful Security Incidents include, but are not limited to, port scans or “pings,” and unsuccessful log-on attempts, broadcast attacks on Business Associate’s firewall, denials of service or any combination thereof if such incidents are detected and neutralized by Business Associate’s anti-virus and other defensive software and not allowed past Business Associate’s firewall.
Business Associate will identify and respond internally to any suspected or known Breach of any Unsecured PHI, Security Incident or other improper use or disclosure of PHI, and will mitigate, to the extent practicable, their harmful effects, document their outcomes, and provide documentation of any successful Security Incident and Breach of any Unsecured PHI to Covered Entity upon request.
3. OBLIGATIONS OF COVERED ENTITY.
(a) Permissible Requests
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would violate applicable federal and state laws if such use or disclosure were made by Covered Entity. Covered Entity may request Business Associate to disclose PHI directly to another party only for the purposes allowed by HIPAA and the HITECH Act.
(b) Notifications
Covered Entity shall notify Business Associate of any limitation in any applicable notice of privacy practices in accordance with 45 CFR Section 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by individual to use or disclose PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR Section 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
4. TERM AND TERMINATION.
(a) General Term and Termination
This Agreement shall become effective on the Effective Date set forth above and shall terminate upon the termination or expiration of the Service Agreement and when all PHI provided by either party to the other, or created or received by Business Associate on behalf of Covered Entity is, in accordance with this Section, destroyed, returned to Covered Entity, or protections are extended.
(b) Material Breach
Where either party has knowledge of a material breach by the other party, the non-breaching party shall provide the breaching party with an opportunity to cure. Where said breach is not cured to the reasonable satisfaction of the non-breaching party within twenty (20) business days of the breaching party’s receipt of notice from the non-breaching party of said breach, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement affected by the breach. Where either party has knowledge of a material breach by the other party and cure is not possible, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement affected by the breach.
(c) Return or Destruction of PHI
Upon termination of this Agreement for any reason, Business Associate shall: (i) if feasible as determined by Business Associate, return or destroy all PHI received from, or created or received by Business Associate for or on behalf of Covered Entity that Business Associate or any of its subcontractors and agents still maintain in any form, and Business Associate shall retain no copies of such information; or (ii) if Business Associate determines that such return or destruction is not feasible, extend the protections of this Agreement to such information and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible, in which case Business Associate’s obligations under this Section shall survive the termination of this Agreement.
5. MISCELLANEOUS.
(a) Amendment
If any of the regulations promulgated under HIPAA or the HITECH Act are amended or interpreted in a manner that renders this Agreement inconsistent therewith, the parties shall amend this Agreement to the extent necessary to comply with such amendments or interpretations.
(b) Interpretation
Any ambiguity in this Agreement shall be resolved to permit the parties to comply with HIPAA and the HITECH Act.
(c) Conflicting Terms
In the event that any terms of this Agreement conflict with any terms of the Service Agreement, the terms of this Agreement shall govern and control.
(d) Notices
Any notices pertaining to this Agreement shall be given in writing and shall be deemed duly given when personally delivered to a party or a party’s authorized representative as listed below or sent by means of a reputable overnight carrier, or sent by means of certified mail, return receipt requested, postage prepaid. Notices shall be deemed given upon receipt. Notices shall be addressed to the appropriate party as follows:
If to Covered Entity:
All notices shall be sent to the contact and physical address provided upon registration
If to Business Associate:
Exact Healthcare, Inc.
3064 Wake Forest Road #1123 Raleigh, North Carolina 27609
Attn: Chris Kelly
(e) Severability
The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained herein.