The following terms of service (these "Terms") are entered into by Recura AI, Inc. or its applicable Affiliate (as applicable, "Company," "we," or "us") and the customer ("Customer" or "you") set forth in an order form or statement of work (each, an "Order" and together with these Terms, the "Agreement") or accessing or using the Services (as defined below) offered by us. By signing an Order, clicking "I Agree" or using the Services, you agree to these Terms, which incorporate by reference the applicable Order, effective as of the effective date of such Order, or if no Order exists, the date of agreement or first use (as applicable, the "Effective Date").
1. SERVICES
- 1.1 Access Rights; Documentation; Support. "Services" means our cloud-based software, AI or payment platforms, websites, mobile applications, APIs and any related products and services, including, but not limited to, any information, content, media, photographs, deliverables, images and data developed or collected by us or otherwise generated by, residing in or resulting from the foregoing, but excludes Customer Content and the Beta Services. Subject to your compliance with the Agreement, including compliance with any usage limitations set forth in an Order and payment of all applicable fees, during the applicable Contract Term or Renewal Term (in each case, as defined below) for the applicable Order: (a) we hereby grant you a limited, non-exclusive, revocable, non-assignable and non-transferable (i) right to access and use the Services solely for your internal business purposes in accordance with the associated user guides or operating manuals (the "Documentation") and (ii) license to use the Documentation and any downloadable or mobile applications included as part of the Services solely for your internal business purposes in connection with your use of the Services; and (b) we will provide applicable standard customer support for the Services as detailed in the applicable Documentation ("Support Services").
- 1.2 Updates. We may modify and upgrade the Services on an ongoing basis, including adding, removing or modifying the functionality or features of the Services. We will use commercially reasonable efforts to inform you prior to the implementation of changes that materially affect the Services you utilize. You acknowledge and agree that your purchase of the Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features of the Services.
- 1.3 Beta Services. We may offer features or services that are identified as beta or pre-release ("Beta Services"). You acknowledge that such Beta Services are still in development, may have bugs or errors, may have incomplete features or functionality, may not operate correctly, may materially change prior to a full commercial launch or may never be released commercially. Despite any other provision of the Agreement, your use of or reliance on the Beta Services is at your own risk. The Beta Services are provided "as-is" without warranty of any kind, and our warranties and support and indemnification obligations do not extend to Beta Services. In no event shall we be liable for any damages (including direct, indirect, incidental or consequential damages) arising out of your use of or inability to use the Beta Services, even if we have been advised of the possibility of such damages.
2. TERM AND TERMINATION
- 2.1 Generally. These Terms will apply from the Effective Date until the expiration or termination of the last effective Order executed under the Agreement, unless terminated earlier for cause (the "Term"). The term of each Order will begin on the subscription start date indicated in the applicable Order ("Subscription Start Date") or, if no such Subscription Start Date is indicated, on the date of your signature of such Order, and will continue through the Contract Term (as defined in such Order). Unless otherwise set forth in an Order, each Order will automatically renew for successive periods equal to the greater of (a) the original duration of the Contract Term or (b) twelve (12) months (the "Renewal Term"), unless you provide written notice at least sixty (60) days prior to the expiration of the Contract Term (as specified in the applicable Order) or the then-current Renewal Term, as applicable.
- 2.2 Termination for Cause. Either party may terminate any Order issued pursuant to these Terms for cause, if the other party (a) is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (b) ceases business operations, makes a general assignment for the benefit of creditors, has a receiver appointed for it or its property, becomes insolvent or becomes the subject of any bankruptcy, insolvency or similar proceeding that is not dismissed within sixty (60) days; provided that we may immediately terminate the Agreement for cause without notice if you violate Section 1.1 (Access Rights; Documentation; Support), Section 3 (Use of the Services) or Section 5 (Intellectual Property).
- 2.3 Termination Without Cause. We may upon thirty (30) days' written notice to you (a) terminate any Order issued pursuant to these Terms for any reason or (b) modify, cancel, discontinue the Services, including Support Services, Professional Services and available integrations with Third Party Providers (as defined below). In the event of termination by us under this section, we will refund any unused portion of fees pre-paid by you for the Services set forth in such Order.
- 2.4 Effects of Termination. In the event of any expiration or termination of these Terms, (a) all Orders hereunder will automatically terminate; (b) you will, and will cause Authorized Users to, immediately cease access to or use of the Services and the Documentation; (c) your, and Authorized Users', right or license to access and use the Services and the Documentation will immediately terminate; and (d) you will return or destroy all Confidential Information (as defined below), downloadable applications, including, but not limited to, mobile applications and the Documentation listed in such Order in your possession or control. If we terminate any Order or these Terms pursuant to Section 2.2 (Termination for Cause), or if you seek to cancel your account before the end of the Contract Term or applicable Renewal Term, you will pay any unpaid amounts covering the remainder of the Contract Term or Renewal Term, as applicable. In no event will termination relieve you of your obligation to pay any Fees payable to us for the period before the effective date of termination.
- 2.5 Suspension of Access. We may limit or suspend your access to or use of the Services if we determine, in our sole discretion, that: (a) your access to or use of the Services may create a security risk or other material harm to the Services or us; (b) you are misusing the Services or have otherwise breached the Agreement; (c) you may be violating applicable law or suspension is required by a government authority; and (d) subject to Section 6 (Payment Terms), you owe Fees to us that are past due.
3. USE OF THE SERVICES
- 3.1 Authorized Users. Your employees, directors, principals, partners, consultants or agents authorized to use the Services on your behalf and registered and approved by us, in our sole discretion, for such use in accordance with our procedures ("Authorized Users") may access and use the Services to the same extent you are allowed to use and benefit from the Services; provided that: (a) each Authorized User's use of, or benefit from, the Services will be subject to all applicable terms, conditions and limitations (including, but not limited to, aggregate usage or location limitations) of the Agreement and each applicable Order; (b) you, as the signatory to the Agreement, will be responsible for each Authorized User's compliance with the terms, conditions and limitations of the Agreement; (c) you are solely responsible for monitoring Authorized Users' access to and use of the Services; and (d) we may require Authorized Users to agree to a separate end user license agreement to be made available at the time of such Authorized User's access to the Services.
- 3.2 Security. You will comply with all laws and regulations applicable to your use of the Services, including complying with, and notifying us of, export and import control laws and regulations applicable to you. You will implement and maintain industry standard administrative, technical and security standards or safeguards designed to ensure the security and confidentiality of the Services that you receive from us. You are responsible for the procurement, maintenance, performance and security of any network, connection, service or device not provided or managed by us. You agree to use current operating systems and browsers that support protocols and procedures accepted by us. In connection with the Agreement, you will reasonably and timely cooperate with us, including providing us with access to your equipment, software and data, including remote access, necessary for the implementation and operation of the Services. You will not require us to comply with additional contractual or policy requirements not already contained in the Agreement in order to receive such access. We will provide you with the specifications of available remote access methods, and you will be responsible for the costs associated with any selected method. You agree not to use the Services in excess of your authorized login protocols or other parameters (such as limits on locations). You will immediately notify us of any suspected or actual unauthorized access to or use of the Services, login IDs, passwords or accounts or other breach of security.
- 3.3 Third-Party Products. You are solely responsible for, and none of the Fees or expenses set forth herein will be deemed to cover, any amounts owed to third parties in connection with the use of the Services, including without limitation, clearinghouse fees. Your use of products and services provided by third parties ("Third-Party Products"), whether or not interoperating with the Services, are subject to your applicable terms with such Third-Party Product provider ("Third-Party Provider"). You must obtain our prior written consent before allowing a Third-Party Provider access to the Services. Third-Party Products are not deemed part of the Services or the Documentation. We will have no liability for, or in connection with, and make no representations or warranties with respect to, any Third-Party Product, and no Third-Party Provider will be an agent or subcontractor of us. You expressly waive any claims against us relating to Third-Party Products or Third-Party Providers, including any exchange of data with, or action by, such Third-Party Provider. You agree that to the extent a Third-Party Provider sends, receives, maintains or transmits any Customer Content, including without limitation, protected health information (collectively, "Sharing"), or takes any action with respect to the Services, such Third-Party Provider does so on behalf of you and not us. If Third-Party Products require or result in Sharing Customer Content with a Third-Party Provider, you consent to us and our Affiliates Sharing Customer Content with such Third-Party Provider, and you represent and warrant that such Sharing does not violate any agreement, law, regulation or other legal standard. Upon the earlier of: (a) termination of the Third-Party Provider's need for access to the Services or (b) termination of your agreement with a Third-Party Provider pertaining to Third-Party Products, you will immediately terminate Third-Party Provider's access to the Services and notify us thereof. To the extent the Services contain software, services or content owned by a third party for which we have a license agreement with such third party, the Services and all rights granted hereunder are expressly limited by and subject to any license agreements we may have for such Third-Party Products. You will promptly reimburse us for any Fees incurred by us for Third-Party Products after the date of expiration or termination of an Order (such as the remainder of an annual fee charged to us for Third-Party Products).
- 3.4 Professional Responsibility. You are responsible for the use of all information provided through the Services in providing patient care. We will not be liable for your actions (including Authorized Users) that may result in any liability due to malpractice or failure to warn. We provide no medical or other professional advice in connection with the Agreement, the Services and the information contained therein, and any output, suggestion, message, transcript or other result generated by machine learning or artificial intelligence ("AI Output") is for administrative and informational purposes only and is not medical advice nor a substitute for professional judgment. You acknowledge and agree that a licensed professional is responsible for independently reaching any medical or other professional judgment, and for any resulting diagnosis and treatments, notwithstanding any use of the Services by such professional. The absence of a warning for a given drug or drug combination should not be construed to indicate that the drug or drug combination is safe, appropriate, or effective in any given patient.
- 3.5 Customer Content. You are solely responsible for all data, information or other content provided by you or Authorized Users to us ("Customer Content"), and you represent, warrant and covenant that (a) prior to providing Customer Content to us, you will provide notices to, and obtain any required consents, approvals and rights necessary from, any person necessary for (i) you to collect, process, use, store, enhance and disclose Customer Content and (ii) us to use, store, disclose or otherwise process such Customer Content; (b) all Customer Content and its provision to us is in compliance with applicable law; and (c) the Customer Content does not and will not infringe, misappropriate or otherwise violate any intellectual property rights or any privacy or other rights of any third party. You acknowledge and agree that you exclusively determine the content, accuracy, completeness, legality and publication of Customer Content by you and Authorized Users, and we do not control, review, edit, endorse or direct Customer Content, except as necessary to provide the Services or as required by law. We will not be liable for, or have any obligation with respect to, Customer Content. You are responsible for the accuracy, integrity, completeness and quality of Customer Content, and we will be entitled to rely on such Customer Content.
- 3.6 Records; Return of Customer Content. You are solely responsible for maintaining any Customer Content that you require for archival purposes, ongoing management of your operations or compliance with all records retention requirements applicable to you. You agree that you are not relying on us to assist with determining the records maintenance or retention requirements applicable to you. We will not be responsible for any loss, corruption of or inaccessibility of the Customer Content due to interruption in the Services or otherwise arising out of circumstances not within our control. You may request in writing, within ninety (90) days after the effective date of expiration or termination of an applicable Order, subject to your payment of all Fees due in connection with such Order, which may include additional fees and expenses in connection with such request, return of your Customer Content that is maintained by us in a format determined by us in our sole discretion. You acknowledge and agree that following expiration or termination of these Terms or the applicable Order, you will have no further access to the Services or any Customer Content hosted by us, and we may delete all Customer Content that has been stored by us pursuant to the Agreement or the applicable Order.
- 3.7 Customer Communications. You are responsible for configuring any machine learning or artificial intelligence to generate, summarize, classify, recommend, or automate actions ("AI Features"), including, but not limited to, configuring scripts, workflows, escalation rules, hours and contact settings, and for reviewing and approving any patient-facing communications generated or sent using AI Features. You are solely responsible for obtaining and maintaining all required consents and complying with applicable laws and industry rules relating to calls, texts, prerecorded or automated messages, and opt-outs (including honoring STOP, recording notices and do-not-contact requests), including when utilizing AI Features for such purposes. You will not use AI Features for emergency communications, diagnosis, clinical triage or to provide medical advice, and you will ensure appropriate escalation to a human when needed. You will not use the Services to impersonate any person or entity or to create, request or deploy voice output intended to mimic a specific individual without appropriate rights and consents.
- 3.8 Customer Equipment. You acknowledge and agree that (a) you are solely responsible for the procurement, maintenance and use of any equipment, hardware or other devices used by you in connection with the Services or necessary to utilize the Services as specified (the "Customer Equipment"); and (b) we are not responsible for any loss, damage, injury, malfunction, interruption or claim arising from or related to the Customer Equipment.
4. SERVICE LEVEL AGREEMENT
- 4.1 We will use commercially reasonable efforts to make the Services available to you at least 99% of the time (calculated monthly) outside of scheduled maintenance, emergency maintenance, connectivity issues caused by Authorized User's error or the suspension of your Services ("Service Commitment"). In this context, "available" means that the Services are accessible from at least one Authorized User's compatible device (as defined in the Documentation).
- 4.2 In the event that you believe that we have failed to meet the Service Commitment in a particular month, you will be eligible to receive a service credit ("Service Credit") only if (a) you are not past due on payment of any Fees owed to us, (b) you request a Service Credit via email to sla@patientnow.com within seven (7) days of the end of such month, including in such request the nature, date and time of the alleged failure and (c) we determine that we failed to ensure the Services were available more than 95% of the time (calculated monthly) outside of scheduled maintenance, emergency maintenance, connectivity issues caused by Authorized User's error or the suspension of your Services. Failure to meet the requirements above will forfeit your right to receive a Service Credit.
- 4.3 Where you are eligible for a Service Credit, you will be credited an amount equal to 10% of the Fees paid to us for the Services that are attributable to such month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). Any Service Credit will be applied to your invoice within two billing cycles after our receipt of the applicable request for Service Credit. Service Credits are exclusive of any applicable taxes charged to you or collected by us. A SERVICE CREDIT IS YOUR SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE SERVICE COMMITMENT.
- 4.4 You acknowledge that you will not receive any Service Credit under this section (a) for your inability to access Third-Party Products, whether integrated with the Services, (b) for latency or slowness in the Services or third-party software or applications integrated into the Services, (c) for mobile or other downloadable applications or content provided by us or hardware or (d) if failure or deficiency is caused by (i) a suspension or termination of the Services pursuant to the Suspension and Termination paragraphs set forth below, (ii) Customer Equipment, (iii) factors outside of our reasonable control, including, but not limited to, any force majeure event, or (iv) internet access or related problems beyond the demarcation point of our internet protocol routing infrastructure.
5. INTELLECTUAL PROPERTY
- 5.1 Ownership. We, including our Affiliates, licensors and service providers, as applicable, retain all right, title and interest, including, but not limited to, all existing or future copyrights, trademarks, service marks, trade secrets, patents, patent applications, know how, moral rights, contract rights, and proprietary rights, and all registrations, applications, renewals, extensions and combinations of the foregoing, in and to the Services, the Professional Services, Documentation, Aggregated Data (as defined below) and any other information or materials related to the foregoing, including, but not limited to, all object code, source code, modifications, know-how, ideas, technology, processes, techniques, inventions or technical information relating to any of the foregoing and any derivative works thereof. Any rights not expressly granted to you hereunder are reserved by us, including our Affiliates, licensors and service providers, as applicable. To the extent you acquire any rights in the Services, Professional Services, Documentation, Aggregated Data or any other information or materials related to the foregoing, including any derivative work created by you, by operation of law despite the terms of the Agreement, you hereby assign those rights to us and agree to take such further actions as necessary to give effect to this section.
- 5.2 Restrictions. Except as expressly permitted by the Agreement, you will not, and will not permit any third party, including Authorized Users, to: (a) use, reproduce, modify, adapt, alter, translate or create derivative works from the Services or Documentation; (b) merge the Services with other software or services; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer or allow access to the Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to alter or derive the source code for the Services; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Services or Documentation; (f) access or use the Services or Documentation for purposes of (i) competitive analysis of the Services or Documentation, (ii) the development, provision or use of a competing software service or product, or (iii) any other purpose that is to our detriment or commercial disadvantage; (g) use the Services to generate or facilitate unsolicited bulk emails, phone calls, SMS messages, texts or other communications; (h) submit Customer Content that contains (i) obscene or abusive language, (ii) infringing, libelous or otherwise unlawful content, or (iii) any virus, Trojan horse, worm, time bomb, or other routine, mechanism or code designed to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system; (i) use any computer code, data mining software, "robot," "bot," "spider," "scraper" or other automatic device or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the Services, data or content found on the Services or accessed through the Services; (j) impersonate our employees or other users of the Services or otherwise share login credentials; (k) circumvent any contractual usage limits or security mechanism, procedure or protocol; or (l) otherwise use or copy the Services or Documentation.
- 5.3 Customer Content; Feedback. As between you and us, and without limiting the rights of any patient or third party, you will retain all right, title and interest in and to Customer Content. Notwithstanding the foregoing, we may (a) collect and analyze Customer Content and other data or information relating to the provision, use, performance, security and operation of the Services (including, without limitation, metadata, logs, telemetry, configuration data and usage data), and (b) de-identify and use Customer Content for any lawful purpose consistent with applicable law (collectively, "Aggregated Data"). We may, at our discretion and for any lawful purpose, use, reproduce, store, process, modify, create derivative works of, combine, aggregate, analyze, distribute, disclose, translate, make available, sell, license, transfer, commercialize and otherwise utilize Aggregated Data, whether during the Term or thereafter, including utilizing Aggregated Data to develop, train or enhance artificial intelligence or machine learning models that are part of the Services. In addition, you grant to us, our Affiliates and subcontractors a worldwide, perpetual, irrevocable, royalty-free, fully-paid up, transferrable, sublicensable license to use, reproduce, store, process, modify, create derivative works of, combine, aggregate, analyze, distribute, disclose, translate, make available and incorporate into the Services, any Customer Content, suggestion, enhancement request, recommendation, correction or other feedback relating to the operation of the Services provided by you or Authorized Users. We may block or remove Customer Content that we, in our sole discretion, determine is unacceptable or otherwise violates the Agreement.
5A. Digital Millennium Copyright Act
- 5A.1 Generally. We respect the intellectual property rights of others and expect you to do the same. In accordance with the Digital Millennium Copyright Act, 17 U.S.C. § 512 ("DMCA"), we have designated an agent to receive notifications of claimed copyright infringement and have adopted and reasonably implemented a policy for terminating, in appropriate circumstances, users who are repeat infringers. We also accommodate and do not interfere with standard technical measures used by copyright owners to protect their works as described in the DMCA.
- 5A.2 Copyright Agent. If you believe that material available through the Services infringes your copyright, you may submit a written notification to our designated copyright agent at:
PatientNow Copyright Compliance Team
6833 South Dayton Street #1016
Greenwood Village, CO 80112
Email: Copyrightmanager@PatientNow.com
Phone: 800-436-3150
- 5A.3 Notice Requirements. Your notice must include:
- Identification of the copyrighted work claimed to have been infringed (or a representative list if multiple works are involved);
- Identification of the allegedly infringing material and its location sufficient for us to locate it (e.g., specific URL);
- Your full legal name, mailing address, telephone number, and email address;
- A statement that you have a good faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notice is accurate;
- A statement under penalty of perjury that you are authorized to act on behalf of the copyright owner; and
- Your physical or electronic signature.
Upon receipt of a compliant DMCA notice, we will act expeditiously to remove or disable access to the allegedly infringing material and will take reasonable steps to notify the party who posted it.
- 5A.4 Counternotice Requirements. If you believe that material you posted was removed or disabled because of mistake or misidentification, you may submit a written counter-notification to our designated copyright agent that includes:
- Identification of the material that has been removed or disabled and its location prior to removal;
- A statement under penalty of perjury that you have a good faith belief the material was removed or disabled due to mistake or misidentification;
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal court in the district where you reside (or, if outside the United States, the District of Colorado) and that you will accept service of process from the person who submitted the original DMCA notice or their agent; and
- Your physical or electronic signature.
If we receive a valid counter-notification, we may restore the material in accordance with the DMCA, including providing the original complaining party notice of the counter-notification and restoring the material not less than ten (10) nor more than fourteen (14) business days thereafter, unless we receive notice that the complaining party has filed an action seeking a court order to restrain the alleged infringing activity.
6. PAYMENT TERMS
- 6.1 Fees. Fees are due and payable as set forth in the applicable Order (the "Fees") within ten (10) days after the date of the invoice for such Fees without credit, setoff or counterclaim. All payments will be in U.S. dollars unless otherwise agreed in writing by us. Unless otherwise expressly provided in these Terms or the applicable Order, all Fees are nonrefundable. Payment is required in advance of the Services being provided. Fees, including associated payment terms, may be increased or modified by us at any time in our sole discretion, including, but not limited to, during the Contract Term or any Renewal Term.
- 6.2 Taxes. Fees exclude all taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any jurisdiction ("Taxes"). You are responsible for paying Taxes assessed in connection with your or Authorized User's use of the Services. If we believe we are legally obligated to invoice you for Taxes or pay Taxes, we will include any Taxes as a separate line item on an invoice unless you provide us with a current tax exemption certificate issued by the appropriate taxing authority.
- 6.3 Payment Information and Authorizations. You will provide us with valid, complete and accurate ACH or credit card information at the time of signing your initial Order and will be responsible for providing us with and maintaining valid, complete and accurate ACH or credit card information, as applicable, billing and contact information at all times during the Term. You hereby explicitly authorize us to automatically invoice and charge such bank account or credit card for all Fees for the Services listed in the applicable Order for the entirety of the Contract Term and any Renewal Term. You acknowledge and agree that, as a condition precedent to us entering into any Order or otherwise providing the Services to you under the Agreement, you expressly authorize us to conduct any credit checks or similar searches related to you, and you will cooperate in good faith with any requests made by us in connection with such checks.
- 6.4 Invoicing. We invoice on a calendar month basis, so the initial invoice you receive will include (a) a prorated monthly amount relating to any partial calendar month of the Contract Term based on the Subscription Start Date or, if no such Subscription Start Date is so indicated in the Order, the date of your signature of such Order; (b) an amount equal to the first full calendar month of service; and (c) any amounts relating to any one time fees as set forth in the Order. You are responsible for promptly reviewing all invoices received from us and must provide us with written notice within thirty (30) days of receiving an invoice of any good faith disputes or objections related to any Fees included on such invoice or to any other part of the invoice. You hereby waive any disputes or objections (a) not timely raised in accordance with these Terms and (b) related to your non-usage of the Services.
- 6.5 Overdue Fees. If payment is returned for any reason, including chargebacks or insufficient funds, you may be subject to a chargeback or return item fee. If any invoiced Fees are past due: (a) you will pay all expenses (including reasonable attorney fees) incurred by us in connection with the collection of late payments; (b) past-due Fees will accrue interest at the rate of 1.5% per month, or the maximum permitted by applicable law, whichever is less; and (c) we may, without limiting our other rights and remedies, accelerate the remaining Fees due and payable under all Orders so that all such payment obligations become immediately due and payable.
7. PAYMENT SERVICES
- 7.1 Payment Services; Processor; Terms. The Services may enable you to accept payments from your customers ("Payment Services") through a third-party payment processor (currently Payrix Solutions, LLC, the "Payment Processor"). You must accept and comply with the Payment Processor's then-current terms (including any sub-merchant agreement) and any additional terms we provide for the Payment Services. We may change, replace, suspend, or discontinue the Payment Processor or the Payment Services at any time. Any breach of the Payment Processor terms is a breach of the Agreement. We are not a bank, depository institution, or money services business.
- 7.2 Fees; Chargebacks; Refunds; Negative Balances. Payment transactions are subject to processing fees and other fees deducted from settlement, and we may change such fees at any time. You are responsible for all refunds, chargebacks, reversals, fines, penalties, assessments and related fees (including after you stop using the Payment Services). We may offset any such amounts against amounts otherwise payable to you and, if insufficient, you authorize us or the Payment Processor to debit your designated bank account for any negative balance, including chargebacks and reversals, and to invoice any unpaid amounts, which will accrue interest as provided in the Agreement.
- 7.3 Payouts; Withholding; Reserves; Limits. Payouts will be made to you, without interest, net of refunds, chargebacks and fees, on the schedule described in the Documentation or Payment Processor terms. We or the Payment Processor may set transaction limits and may withhold, suspend, delay or permanently stop payouts, or establish and maintain a non-interest-bearing reserve, to the extent required by law or to manage risk, including chargebacks, fraud, suspected unlawful activity, noncompliance with the Agreement or processor terms, or amounts you owe us.
- 7.4 Customer Responsibilities; Compliance. You are responsible for (a) your refund policy and customer communications; (b) transaction reconciliation; and (c) responding to and supporting disputes and chargebacks, including providing requested information and documentation within required timeframes. You will comply with all applicable law and payment network rules, including PCI DSS, and will maintain reasonable security for your systems and any integrations with the Payment Services. You will provide all required disclosures and obtain all required consents from your customers before processing payments.
- 7.5 Payee Agent. You appoint us or the Payment Processor as your limited agent solely to receive and settle payments to you. Payment by your customer to us or the Payment Processor satisfies your customer's payment obligation to you, regardless of whether funds settle to you, and your recourse for non-settlement is against us or the Payment Processor, as applicable, not the customer.
8. REPRESENTATIONS AND WARRANTIES
- 8.1 Mutual. Each party represents that it has full legal authority to enter into the Agreement and perform its obligations hereunder and that no third-party rights or permissions are required in order for it to do so.
- 8.2 Company. Subject to the terms and conditions of the Agreement, including the disclaimer in Section 8.3 (Disclaimer), we warrant that during the Term (a) the Professional Services will be performed in a professional and workmanlike manner and (b) the Services will materially operate in accordance with the Documentation. You must provide written notice to us within thirty (30) days of the completion of the Services alleged to have been performed inconsistent with this warranty, otherwise this warranty will be void. Your sole remedy and our sole obligation in the event of a breach of this warranty is, at our option, to use commercially reasonable efforts to (x) re-perform the Services, (y) correct or replace the material nonconformity or (z) terminate the applicable Order and refund the amounts prepaid by you for the remainder of the Term for the Services that were not as warranted.
- 8.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT: (a) THE SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW; (b) WE DO NOT PROMISE THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE NOR THAT THE INFORMATION OR OUTPUTS GENERATED THROUGH THE SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE OR SUITABLE FOR YOUR PURPOSES; (c) WE DO NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF THE PAYMENT SERVICES; AND (d) WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER IN FACT OR BY OPERATION OF LAW, STATUTE, COMMON LAW, COURSE OF DEALING, TRADE USAGE, OR OTHERWISE.
9. INDEMNIFICATION
- 9.1 Company Indemnification. We will defend any action against you or your agents, officers, directors, or employees (the "Customer Parties") brought by a third party alleging that the Covered Technology (as defined below) infringes any U.S. patents or copyrights or misappropriates any trade secrets of a third party and will indemnify and hold the Customer Parties harmless from those costs and damages finally awarded against the Customer Parties in any such action that are specifically attributable to such claim or those costs and damages agreed to by us in a monetary settlement of such action. The foregoing obligations are conditioned on you: (a) promptly notifying us in writing of such claim or action; (b) giving us sole control of the defense thereof and any related settlement negotiations; and (c) cooperating with us and, at our request and expense, assisting in such defense. We will not enter into any settlement that imposes any legal liability or financial obligation on you without your prior written consent. You will have the right, at your option, to participate in the settlement or defense of the claim, with your own counsel and at your own expense. If any Covered Technology becomes, or in our opinion is likely to become, the subject of an infringement claim, we may, at our sole option and expense: (x) procure for you the right to continue using it; (y) modify it, or replace it with a substantially similar software or service, so that it becomes non-infringing; or (z) terminate the applicable Order, in whole or in part. Notwithstanding the foregoing, we will have no indemnification or other obligation hereunder with respect to any infringement claim to the extent based upon: (i) use of the Services not in accordance with these Terms, the applicable Order or the Documentation; (ii) use of the Services in combination with products, equipment, software, services or data not supplied by us; (iii) your failure to implement the latest release of, or any replacements, corrections or modifications made available by us for the Services; (iv) Customer Content; or (v) any modification of any of the Services or use thereof by any person other than us or our authorized agents or subcontractors. For purposes of this Section 9.1 (Company Indemnification) only, "Covered Technology" means the Services' underlying software, including our cloud-based software, AI or payment platforms, websites, mobile applications, APIs and Documentation, as provided by us, but excludes Payment Services, Customer Content and any output or result generated by or through the Services, including, but not limited to, AI-generated outputs, reports, analytics, landing pages and other content or materials. This section states our entire liability and your exclusive remedy for any claims of infringement.
- 9.2 Customer Indemnification. You will defend any action against us, our Affiliates and our respective agents, officers, directors and employees (the "Company Parties") and will indemnify and hold the Company Parties harmless from those costs and damages finally awarded against the Company Parties in any such action brought by a third party arising out of or related to: (a) Customer Content; (b) the Customer Parties' or Authorized Users' use of the Services allegedly in violation of the Agreement, Order, Documentation or applicable law; (c) your reliance on any information or outputs, including AI-generated outputs, generated through the Services; or (d) your or Authorized Users' interactions with patients, physicians, laboratories, pharmacies, medical professionals and other third parties or any other claims relating to your or Authorized Users' treatment activities or services provided to any patients or other third parties. We will: (x) promptly notify you in writing of such claim or action; (y) give you sole control of the defense thereof and any related settlement negotiations; and (z) cooperate with you and, at your request and expense, assist in such defense. You will not enter into any settlement that imposes any legal liability or financial obligation on us without our prior written consent.
10. Confidentiality
- 10.1 "Confidential Information" means any information, technical data, or know-how, including, without limitation, information relating to software, products, services, customers, personnel, markets, research, intellectual property, inventions, processes, designs, marketing, future business strategies, trade secrets, finances and other nonpublic information of the disclosing party, including the details of these Terms and any Order under these Terms and, with regards to the Company, the Services and the Documentation.
- 10.2 Non-Confidential Information. Confidential Information does not include information that the receiving party can establish: (a) was lawfully known by the receiving party prior to its disclosure by the disclosing party; (b) is, or becomes, generally known to the public without breach of the Agreement; (c) is obtained by the receiving party in good faith from a third party without any communicated confidentiality obligation; or (d) is independently developed by the receiving party without use of the disclosing party's Confidential Information.
- 10.3 Non-Disclosure. The receiving party will use the disclosing party's Confidential Information only for purposes of the Agreement and applicable Orders under the Agreement and will not disclose it to any person or entity other than its or its Affiliates' employees, directors, contractors, consultants, service providers, counsel or agents who have a reasonable need to know such information and who are bound by at least equivalent obligations of confidentiality and non-disclosure as those under the Agreement (such recipients being "Authorized Recipients"). Authorized Users and any third party authorized by you to receive your Confidential Information are Authorized Recipients of you. "Affiliates" means any corporate entity that, directly or indirectly, controls or is controlled by, or is under common control with, a party. The receiving party is responsible for the compliance of its Authorized Recipients with the confidentiality and non-disclosure obligations of the Agreement. The receiving party will use the same standard of care to protect the disclosing party's Confidential Information as it uses to protect its own similar confidential and proprietary information, but no less than reasonable care. Notwithstanding the non-disclosure requirements of this section, you authorize us to refer to you as a customer and use your name and logo in such references. Each party agrees that damages will not be adequate to protect the other party in the event of an actual or threatened breach of the confidentiality and nondisclosure obligations of the Agreement and that either party may take equitable action, including seeking injunctive relief, to enforce such obligations.
- 10.4 Legal Disclosure. If it becomes necessary for the receiving party to disclose any Confidential Information to enforce the Agreement or comply with a judicial or administrative proceeding (or equivalent process), the receiving party will, to the extent legally permitted, provide the disclosing party with prompt written notice so the disclosing party may, at the disclosing party's expense, seek a protective order or other appropriate remedy to protect such information. If such protective order or other remedy is not obtained, the receiving party will not be in breach of the Agreement by furnishing such Confidential Information as required.
11. LIMITATION OF LIABILITY
NEITHER WE, NOR OUR AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, WILL BE LIABLE FOR LOSS OF PROFIT, DATA, BUSINESS OR GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING OR ALLEGED. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS OR AN ORDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID TO US BY YOU FOR THE SERVICES PROVIDED UNDER THE APPLICABLE ORDER DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE THAT THESE LIMITATIONS REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT WE WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON OUR LIABILITY. YOU AGREE THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE.
12. PROFESSIONAL SERVICES
We will use commercially reasonable efforts to provide the professional services, including, but not limited to, Support Services and implementation services, set forth in an Order ("Professional Services"), and you agree to cooperate in good faith to achieve satisfactory completion of the Professional Services. You acknowledge that our performance of the Professional Services is materially dependent on your cooperation and that timelines for completion of Professional Services are estimates that may be revised due to resource constraints, third parties engaged as part of the Professional Services or your responsiveness, cooperation and resources. Accordingly, we will not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of you or a third party, including, but not limited to, your failure to provide the necessary cooperation, access and assistance as required hereunder. You will reimburse us for any reasonable costs incurred by us in connection with such failure. You are solely responsible for ensuring that specifications provided to us in connection with the Professional Services comply with applicable law.
13. General
- 13.1 Assignment. You will not assign or transfer these Terms or any Order, nor your interest, rights or responsibilities under these Terms or any Order, except with our written consent, which will not be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing will be null and void. We may transfer, assign or subcontract the Agreement or any Order or our rights or obligations under the Agreement or any Order, in whole or in part, without your consent.
- 13.2 Amendment. We may amend the Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify you at least thirty (30) days prior to the effective date of any such amendment, and your continued use of the Services following the effective date of any amendment will serve as your consent to such amendment. We may make updates to online or URL terms and policies that are incorporated into the Agreement. Unless otherwise noted by us, such updates will become effective upon publication.
- 13.3 Notices. All notices under the Agreement must be delivered in writing by email, courier or certified or registered mail (postage prepaid and return receipt requested) to the other party at the applicable email or physical address set forth in the applicable Order and, in our case, to the attention of notice@patientnow.com (or to such other address or person as from time to time provided by such party in accordance with this Section 13.3 (Notices)), and will be effective upon receipt.
- 13.4 Governing Law and Venue; Waiver of Jury Trial. The Agreement will be governed by the laws of the State of Colorado without reference to its choice of law rules. Any action or proceeding arising from or relating to the Agreement must be brought in a state court in Douglas County, Colorado, or federal courts located in Denver, Colorado, and each party irrevocably submits to the personal and exclusive jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action to enforce the Agreement will be entitled to recover its attorneys' fees and costs in connection with such action. EACH PARTY HEREBY IRREVOCABLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM RELATING TO THE AGREEMENT WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER PARTY WILL HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU MAY NOT FILE ANY CLAIM AGAINST US OF ANY KIND, UNDER ANY CIRCUMSTANCES, MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
- 13.5 Severability. If any provision of the Agreement is held to be invalid, illegal or unenforceable, such provision will be changed and interpreted by the court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
- 13.6 Independent Contractors. The parties are independent contractors. Nothing in the Agreement is intended to create or be construed as the existence of a partnership, joint venture, or general agency relationship between the parties.
- 13.7 Force Majeure. Each party's failure to perform in a timely manner will be excused to the extent caused by conditions beyond the reasonable control of the affected party that could not have been avoided by reasonable diligence. Such conditions may include, but are not limited to, natural disaster, fire, accidents, actions or decrees of governmental bodies, Internet or other communication line failure not the fault of the affected party, strikes, acts of God, pandemics, wars (declared and undeclared), acts of terrorism, riots, embargoes and civil insurrection, but will not include a lack of funds or insufficiency of resources caused by lack of funds. The affected party will immediately give notice to the other party of such delay and will resume timely performance as soon as such condition is terminated. If the period of force majeure exceeds thirty (30) days from the receipt of notice, the non-affected party may terminate the Agreement without being in breach of the Agreement.
- 13.8 Export Compliance. The Services may be subject to U.S. sanctions and export laws. You represent and warrant that you, your Affiliates and Authorized Users: (a) are not on any U.S. government-issued list of restricted or denied persons; and (b) are not located in any countries or territories subject to a U.S. government embargo or trade sanctions. You will not (and will not permit any other party to) export, re-export, transfer or disclose the Services to: (x) a U.S.-embargoed jurisdiction; (y) anyone on any U.S. or applicable non-U.S.-restricted or denied persons list; or (z) any party that you have reason to know will use the Services in violation of U.S. export law.
- 13.9 U.S. Government End Users. If you are a branch or agency of the United States Government, the following provision applies: the Services and the Documentation are composed of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. §12.212, and if provided hereunder, are (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. §12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. §227.7202-1 and §227.7202-3. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, you receive only those rights to the Services and the Documentation as provided under these Terms.
- 13.10 Audit Right. Upon our written request, you will furnish us with a signed certification certifying that the Services are being used by you and Authorized Users in accordance with the Agreement, and we may audit your use of the Services to confirm compliance with the Agreement and the applicable Order. If an audit identifies material noncompliance, you will promptly cure it and reimburse us for our reasonable audit costs.
- 13.11 Entire Agreement; No Third-Party Beneficiaries; Survival. These Terms, together with the applicable Order, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral, except agreements made available by us online. In the event of a conflict between the Agreement, including the applicable Order or any agreement made available by us online, the order of precedence will be as follows: (a) the applicable Order; (b) the Agreement; (c) the Business Associate Agreement, if applicable; and (d) agreements made available by us online. Any other representation or agreement, whether written or oral, including, but not limited to, any purchase order issued by you, will be inapplicable to the Services and will not be binding on us. The section headings in these Terms are intended for convenience and reference only and are not intended to define, limit or describe the scope or intent of any provisions of these Terms. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion, and any waiver must be in writing and signed by the waiving party. Except as otherwise expressly stated herein, the parties' rights and remedies under the Agreement are cumulative. Neither party will have any obligation to enter into any Order. There are no third-party beneficiaries of the Agreement. Those provisions of the Agreement that may be reasonably interpreted as surviving termination of the Agreement or the survival of which is necessary for the interpretation or enforcement of the Agreement will continue in full force and effect in accordance with their terms notwithstanding the termination hereof. The Agreement may be signed and delivered electronically and executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
