Terms of Service for https://carexm.com/

CAREXM, LLC
TERMS OF SERVICE

In the absence of another agreement governing the services (“Services”) CareXM, LLC (“CareXM”) provides to your organization (“Client”) and its patients, the following terms of service (“Terms of Services” or “Agreement”) shall apply, and by continued use of the Services, Client agrees to these Terms of Service. CareXM and Client are each a Party hereunder, and together are the Parties.

Services Provided by CareXM.

CareXM shall provide certain patient/customer experience services, call routing, applications, support, and/or technological services as mutually agreed with Client, whether agreed verbally or in writing.

Fees and Invoices for Services.

CareXM will charge Client CareXM’s current fees, as periodically updated by CareXM. CareXM will provide written invoices to Client for Services rendered, which invoices shall be due by Client thirty (30) days after receipt thereof. Client agrees to pay all such invoices via autopayment, credit card, or ACH. Payments by credit card instead of by ACH may be assessed an additional surcharge of up to 3%, except where prohibited by law. If Client fails to remit payment to CareXM within thirty (30) days of receipt of CareXM’s invoice, Client agrees to pay interest on the unpaid invoice amount at a rate of 0.35% per week.

Limited Grant of Rights.

Intellectual Property Rights.  As used in this Agreement, “Intellectual Property” means all right, title and interest in and to intellectual property, including inventions, patents, copyrights, trade secrets, trademarks, trade names, know-how, software, technology applications, moral rights, licenses, developments, research data, designs, processes, formulas and other intangible proprietary or property rights, whether or not patentable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third party usage), and any and all applications for, and extensions, divisions and reissuances of, any of the foregoing, and rights therein, and whether arising  by  statute  or common law. Notwithstanding anything else to the contrary, there shall be no transfer of intellectual property rights between the Parties as a result of this Agreement, except as to such temporary rights and licenses as are specifically granted herein or which are granted by implication herein during the Term of this Agreement solely as necessary to provide the Services agreed to by the Parties.

General Use of Trademarks.  Each Party grants the other Party the non-exclusive, non-transferable, world-wide, royalty-free right to display, transmit, distribute, reproduce, and use such Party’s trademarks solely in furtherance of this Agreement.  Trademarks of either Party shall remain the exclusive property of that Party, and the other Party shall have no right to such trademarks.  Other than as stated herein, neither Party shall make any use of the other’s trademarks or logos without the other Party’s prior written consent.

Term.  

The term of this Agreement shall be month-to-month (“Term”) until either party notifies the other of its intent not to renew the Agreement within at least thirty (30) days before the end of the then current Term.

Termination for Breach. Either Party may terminate this Agreement immediately upon breach by the other Party of a material representation or warranty or other material provision hereof, upon failure to cure such breach (where curable) following 10 (ten) days written notice thereof by the non-breaching Party.

Effect of Termination. As of the effective date of termination of this Agreement, neither Party shall have any further rights or obligations hereunder, except: (a) as otherwise provided herein; (b) rights and obligations accruing prior to such effective date of termination; or (c) rights and obligations arising as a result of any breach of this Agreement. 

Immediately upon termination, all rights of intellectual property granted to either Party shall immediately terminate and revert to the original grantor, each Party shall destroy or return to the other Party any and all confidential information received from the other Party, each Party shall discontinue the use of the other Party’s trademarks, Client shall cease to use any applications contracted for hereunder (“Applications”). Termination does not relieve Client’s obligation to pay all charges that accrued before the effective date of termination or that are otherwise owed by it.  Client shall be entitled to a refund of the pro rata amount of any refundable prepaid payments attributable to the period of time following the effective date of cancellation and/or termination.

Confidentiality, Security, and HIPAA

Confidential Information.  Confidential Information means information disclosed by a Party to the other Party in connection with this Agreement, which is either marked confidential or disclosed in circumstances in which a reasonable person would consider the information to be confidential. The terms of this Agreement and the Client protected data and CareXM protected data shall be deemed Confidential Information.  Each Party acknowledges that disclosure of the other Party’s Confidential Information would cause irreparable harm to the other Party.  Each Party shall be entitled to seek injunctive relief upon a disclosure or threatened disclosure of any Confidential Information without a requirement to prove irreparable harm or the posting of a bond.

Exclusions to Confidential Information.  Confidential Information does not include information that (i) was in receiving Party’s possession before receipt from the disclosing Party; provided, that the source of such information was not under a duty of confidentiality with respect thereto, (ii) is or becomes publicly available other than through a breach of this Agreement or any other obligation of confidentiality, or (iii) is rightfully received from a third party or by a third party without a duty of confidentiality with respect thereto.  Where Confidential Information is required to be disclosed by a court, a government agency or similar disclosure requirement, the receiving Party shall immediately notify the disclosing Party upon learning of the existence or likely existence of such requirement in order to allow the disclosing Party to make reasonable efforts to avoid such disclosure and obtain confidential treatment or protection by order of any disclosed Confidential Information. Notwithstanding anything to the contrary, this Agreement does not regulate the use of non-Confidential Information.

Protection of Confidential Information.  A Party receiving Confidential Information from the other shall use the degree of care generally applicable to the type of Confidential Information involved and customary within the industry and the same degree of care as it uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care, including to prevent (a) use of such Confidential Information for any purpose other than to carry out the terms of this Agreement, and (b) disclosure of such Confidential Information to any person or party other than those who need to know such Confidential Information to carry out the terms of this Agreement and who are bound by written confidentiality agreements, except in accordance to this Agreement.

Security, Passwords and Voice Recording.  Client understands the CareXM systems contain patient information, including patient information embedded within audio recordings, and that all calls may be recorded. Client hereby takes sole responsibility to ensure that password access to CareXM systems are kept confidential and that passwords meet Client security standards, such standards taking into consideration any applicable universal standards, including call recording disclosures established within the Client industry or required/recommended by local or national governments. Client hereby takes sole responsibility for the secure administration and management of all Client assigned users and of any and all devices, including mobile devices, used to access CareXM software. Client agrees to notify recipients of all outbound calls that the call may be recorded in accordance with state and federal laws.

Client Information.  CareXM recognizes and acknowledges that, by virtue of entering into this Agreement and providing Answering Services to Client hereunder, CareXM may have access to certain information of or regarding Client that is confidential and constitutes valuable, special, and unique property of Client. CareXM agrees that it will not at any time, either during the Term or any subsequent Renewal Term of this Agreement, disclose to others, use, copy or permit to be copied, without Company’s express prior written consent, except pursuant to the provision of Answering Services hereunder, any confidential or proprietary information of Client, including, but not limited to, information which concerns Client’s patients, costs, prices, and treatment methods at any time used, developed, or made by Client, and which is not otherwise available to the public.

Patient Information.  CareXM understands that Client is a “covered entity” as defined in the Health Insurance Portability and Accountability Act and its implementing regulations (collectively, “HIPAA”).  In the course of executing its obligations in accordance with this Agreement, CareXM will have access to individually identifiable health information of Client’s patients, thereby creating a Business Associate relationship between CareXM and Client.  As requested by Client, CareXM shall sign a Business Associate Agreement with Client. Neither CareXM nor its representatives shall disclose to any third party, except where required by law or where such disclosure is expressly approved by Client in writing, any patient or medical record information regarding Client patients, and CareXM shall comply with all federal and state laws/regulations, as well as all other rules and regulations regarding the confidentiality of such information.

Representations and Warranties.

CareXM. CareXM represents and warrants to Client, upon execution and throughout the Term of this Agreement, as follows:

CareXM shall perform the Services required hereunder in a professional and workmanlike manner and in accordance with the terms of this Agreement and as outlined in attached Exhibits, and in accordance with all applicable federal, state and local laws, rules and regulations.

Non-infringement.  CareXM warrants to Client that it owns the Applications or has the right to grant use rights for the Applications under this Agreement.  In the event any Application is held or believed by CareXM to infringe or misappropriate, or its provision is enjoined, CareXM will have the option, at its expense, to (a) modify the Application so that it no longer infringes or misappropriates, (b) obtain for Client the right to continue accessing the appropriate interfaces of the Application, (c) substitute the Application with another, reasonably comparable, Application, or (d) if none of the foregoing remedies are commercially feasible, terminate the Application services and refund Client any fees prepaid for that portion of the Service which has not yet been rendered.  Together with provisions herein regarding Indemnification, the present section states CareXM’s entire liability and Client’s exclusive remedy for infringement.

Warranty for the Applications. CareXM warrants to Client that its Applications will substantially achieve the functionality described in this Agreement and any applicable Exhibit. If Client rejects the Applications prior to launch and subsequently terminates for cause, Client shall be due a full refund of all monies. If the Applications provided by CareXM for Client do not substantially achieve their warranted functionality and Client notifies CareXM of such in a timely manner, CareXM shall promptly modify the Applications to conform, or Client shall be due a refund of fees paid for the specific Applications applicable to the period of non-conformity. This shall be CareXM’s sole liability and Client’s sole recourse for any such breach of the above limited warranty for the Applications.

Warranty Exclusions. While due care and diligence have been applied in the development of products, CareXM does not warrant that the Services or Applications will be error-free or uninterrupted.

In the event CareXM fails to meet any of the limited warranties set forth in this subsection and Client notifies CareXM, in addition to any remedies identified above or in any service level provisions herein, CareXM will endeavor to correct the breach of warranty within a commercially reasonable period of time and Client shall have such other rights as are provided elsewhere herein.

Client. Client represents and warrants to CareXM, upon execution and throughout the Term of this Agreement, as follows:

Client performs its services in accordance with all applicable federal, state and local laws, rules and regulations;

Client agrees that CareXM retains all ownership rights in Intellectual Property provided or made available by CareXM relating to the Services and the Applications. Client agrees that it shall not copy, reproduce, distribute, modify, reverse engineer, decompile, attempt to determine source code or algorithms of the Services or the Applications, or sell, rent, lease, license, sublicense, resell, transfer, or assign source code, algorithms or other protected data or applications belonging to CareXM. Client shall not use the applications as a service bureau or for the benefit of any third party other than end users of the applications, whether on a paid or unpaid basis.  Client shall not store, distribute, or transmit any unlawful material through the applications.

Indemnification.

CareXM.  CareXM will indemnify, defend, and hold harmless Client and its directors, officers, employees, and agents from and against all demands, claims, actions, losses, judgments, costs, and expenses (including reasonable attorney fees) to the extent of CareXM’s proportionate fault arising out of any of the following:

Any breach of any material obligation made by CareXM in this Agreement;

Any failure of CareXM, or claim thereof, to comply with applicable material laws, excluding any obligation specifically assumed by Client hereunder; and

Any negligent act or omission, or claim thereof, of CareXM, its officers, employees, agents, or subcontractors arising from or related to providing services under this Agreement.

Client.  Client will indemnify, defend, and hold harmless CareXM and its directors, officers, employees, and agents from and against all demands, claims, actions, losses, judgments, costs, and expenses (including reasonable attorney fees) to the extent of Client’s proportionate fault arising out of any of the following:

Any breach of any material obligation made by Client in this Agreement;

Any failure of Client, or claim thereof, to comply with applicable law, excluding any obligation specifically assumed by CareXM hereunder;

Any negligent act or omission, or claim thereof, of Client, its officers, employees, agents, or subcontractors arising from or related to providing services under this Agreement;

Notification of Claims.  CareXM and Client agree:

To notify each other in writing of any asserted claim within ten (10) days of either discovery of the occurrence upon which the claim may be based or learning of the claim, whichever occurs first;

To permit the other Party to defend the claim at the option of the Party against whom the claim is asserted, with counsel acceptable to such Party, which consent shall not be unreasonably withheld;

Failure to so notify shall not relieve either Party of its obligations under this Agreement, except to the extent that such failure actually and materially causes prejudice to the other Party; and

Neither Party will pay or agree to pay any asserted claim under this Agreement without prior written approval from the Party against whom the claim is asserted, which approval shall not be unreasonably withheld.

Indemnification Defense and Settlement.  Each Party shall cooperate in the defense of any such claim or action and  neither Party shall settle an action or claim without the prior consent of the other party, which consent shall not be unreasonably withheld. In addition, at its option and expense, the indemnified party may engage separate counsel to appear on its behalf in such action or proceeding without waiving its rights or the indemnifying party’s obligations under this paragraph. This provision shall survive expiration and/or termination of this Agreement.

The indemnification provided for in this Section shall be the sole and exclusive remedy and recourse for any breach of this Agreement.

DISCLAIMER OF WARRANTIES.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, CAREXM MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, AS TO ANY MATTER WHATSOEVER. CAREXM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.  CAREXM DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE.  CLIENT MAY NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ON BEHALF OF CAREXM TO ANY THIRD PARTY. TO THE MAXIMUM EXTENT PERMITED BY LAW, ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS-IS.”

LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR COVER DAMAGES INCURRED BY THE OTHER PARTY OR BY ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED ON LOSS OF PROFITS, REVENUE, DATA, SERVICE, OR USE, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO CASE SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CLIENT HEREUNDER FOR THE APPLICABLE SERVICE DURING THE SIX (6) MONTHS PRECEDING THE FIRST APPLICABLE CLAIM. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN CAREXM AND CLIENT AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO CAREXM HEREUNDER. THE FOREGOING SHALL NOT LIMIT EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR THE PARTIES’ OBLIGATIONS REGARDING INDEMNIFICATION OR PROTECTION OF CONFIDENTIAL INFORMATION, WITH SUCH LIABILITIES AND OBLIGATIONS LISTED IN THIS SENTENCE BEING LIMITED IN TOTAL TO $2 MILLION PER PARTY.

Attorneys’ Fees and Costs. If either CareXM or Client brings an action to enforce its rights under this Agreement, the substantially prevailing Party shall be entitled to recover up to the amount of six (6) months of previously-paid service fees paid by Client to CareXM for services provided by CareXM, which amount shall be applied towards costs and expenses, including, but not limited to, mediation, arbitration, litigation, court costs, and attorneys’ fees, if any, incurred in connection with such action.  

Force Majeure.  Neither Party will be held responsible for any delay in performance of any part of this Agreement solely to the extent that such delay is caused by events or circumstances beyond the delayed Party’s reasonable control, including acts of God, but not including purely economic difficulties. In such an event, the delayed Party shall seek alternative means for performance and promptly perform its delayed obligations as soon as practicable through the alternative means or after the event or circumstance giving rise to the delay has ended.

Entire Agreement; Modification.  This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, and all other communications between the Parties relating to such subject matter.  This Agreement may not be amended or modified except by mutual written agreement of the Parties.  The provisions of this Section 15 shall survive expiration or other termination of this Agreement, regardless of the cause of such termination.

Governing Law; Exclusive Jurisdiction; MUTUAL WAIVER OF JURY TRIAL.  This Agreement, including all exhibits hereto, and the terms, conditions, and covenants hereof and the rights, privileges and obligations of the Parties hereto, shall be construed and interpreted in accordance with the laws of the State of Utah without giving effect to principles regarding conflicts of laws applicable in that or any other jurisdiction.  All disputes hereunder shall be resolved exclusively in the state or federal courts of Salt Lake City, Utah.  The Parties irrevocably consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.  The provisions of this Section 16 shall survive expiration or other termination of this Agreement, regardless of the cause of such termination. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, STATUTE OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

Waiver.  A waiver by either Party of a breach or failure to perform under this Agreement shall not constitute a waiver of any subsequent breach or failure.

Severability.  If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it.

Assignment; Binding Effect; Amendment.  Neither Party may assign or transfer, in whole or in part, this Agreement or any of the rights, duties, or obligations under this Agreement without the prior written consent of the other Party; provided, that CareXM may assign this Agreement in whole or in part to any of its affiliates without the consent of Client. Notwithstanding the foregoing, no such consent shall be required in the event of a merger, sale, or change of control involving all or substantially all of a Party’s assets or equity capital. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, representatives, successors, and permitted assigns. This Agreement shall not be amended, modified or waived in any manner except by an agreement in writing duly executed and delivered by each of the Parties.

Notices.  All notices hereunder shall be in writing by email to the most recently used and acknowledged email address for either Party, or delivered by hand, by certified or registered mail, return receipt requested, or by overnight courier, and shall be deemed to have been duly given when sent by email, delivered by hand, deposited in the United States mail, postage prepaid, or deposited with the overnight courier addressed to a Party’s most recently provided address.