MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
FOR VIRTUAL OFFICEWARE, LLC PRODUCTS AND SERVICES
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT CAREFULLY BEFORE CLICKING AN “AGREE” OR SIMILAR BUTTON OR INSTALLING OR USING THE VOW PROGRAMS. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND VIRTUAL REVNUE SOLOTIONS (DE), LLC (“VRS”) THAT SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE VOW PROGRAMS (AS DEFINED BELOW). BY CLICKING AN “AGREE” OR SIMILAR BUTTON OR BY INSTALLING AND/OR USING THE PROGRAMS, YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED HEREIN. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS AND CONDITIONS, DO NOT CLICK AN “AGREE” OR SIMILAR BUTTON AND DO NOT INSTALL OR USE THE VOW PROGRAMS. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY VOW AND WILL NOT BE PART OF THIS AGREEMENT.
THIS VIRTUAL OFFICEWARE, LLC MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT (THIS “AGREEMENT”) IS AN INTEGRAL PART OF THE SALES ORDER BETWEEN YOU AND VOW (THE “SALES ORDER”) AND THE TERMS OF THE SALES ORDER ARE HEREBY INCORPORATED BY REFERENCE.
YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOUR ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Definitions
1.1. “AdvancedMD” means AdvancedMD, Inc., a Delaware corporation.
1.2 “AdvancedMD Pay” means the point-of-sale hardware, software, and related services made available by AdvancedMD pursuant to the terms of Exhibit F.
1.3. “Client Data” means all information (including Health Data) entered by a Permitted Entity into the Hosted Programs or the Third Party Services.
1.4. “Diamond Services” means the provision of print and mail services within the Hosted Programs provided by Diamond Healthcare Communications, an independent third party.
1.5. “DrFirst Services” means the provision of Electronic Prescriptions for Controlled Substances (EPCS) by DrFirst.com, an independent third party.
1.6. “Dyn Services” means the provision of email delivery services within the Hosted Programs provided by Dynamic Network Services, Inc., an independent third party.
1.7. “Electronic Services” means the transmission and processing of claim information (including a distinct claim, remit, inquiry, information request, statement collection letter print image or other item) by an independent third party between the Hosted Programs, on the one hand, and a payor, on the other.
1.8. “First Databank Services” means the provision of and access to drug product information within the Hosted Programs, which drug product information is provided by First Databank, Inc., an independent third party.
1.9. “Health Data” means any Protected Health Information (as defined by HIPAA), and any other Client Data associated therewith that is reasonably necessary for the treatment of any patient of Permitted Entity.
1.10. “Healthwise Services” means the provision of and access to healthcare information and education available through the Hosted Programs or otherwise provided by Healthwise, Inc., an independent third party.
1.11. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder.
1.12. “Hosted Programs” means (i) the computer software programs owned or licensed by AdvancedMD in object code form, and that Permitted Entity has subscribed to, and (ii) online documentation provided by AdvancedMD with respect to such computer software programs; provided, however, that the term “Hosted Programs” does not include any AdvancedMD Pay or Third Party Service.
1.13. “Jive Services” means the provision of educational, product and online support tools available through the Hosted Programs provided by Jive Software, Inc., an independent third party.
1.14. “Optum Services” means the analysis (using a proprietary rules engine and knowledgebase provided by Optum, Inc., an independent third party) of claim coding and editing performed by Providers of Clients or Permitted Entities (as the case may be).
1.15. “Provider” means the Permitted Entity’s employees, contractors or agents that provide billable patient care or services on behalf of the Permitted Entity.
1.16. “Surescripts Services” means the electronic prescription functionality and clinical interoperability functionality, in either case, that is accessible through the Hosted Programs, and in each case is provided by Surescripts, LLC, an independent third party.
1.17. “Third Party Services” means any software, offering, product or functionality that Permitted Entity uses or has subscribed to, but which is provided by a third party that is not AdvancedMD. Third Party Services currently include Diamond Services, Electronic Services, First Databank Services, Healthwise Services, Jive Services, Optum Services, Surescripts Services, Twilio Services, Updox Services, and Zoom Services. Permitted Entity’s use of the Third Party Services is subject to the terms and conditions of Exhibit E.
1.18. “Twilio Services” means the provision of texting and telecommunication services accessible through the Hosted Programs provided by Twilio, Inc., an independent third party.
1.19. “Updox Services” means an integrated electronic service for inbound and outbound faxes and secure messaging, in either case, that is an option accessible through the Hosted Programs, and in each case is provided by Updox LLC, an independent third party.
1.20. “Zoom Services” means the provision of web services, video conferencing and telemedicine services accessible through the Hosted Programs or otherwise provided by Zoom Video Communications, Inc., an independent third party.
2. Use of Hosted Programs, AdvancedMD Pay, and the Third Party Services.
2.1. Service Bureau hereby grants to the Permitted Entity a non-exclusive, non-transferable, revocable right for all Providers (and for additional permitted non-Provider users associated with authorized Providers) to access and use the Hosted Programs, AdvancedMD Pay, and the Third Party Services. Permitted Entity shall be entitled to access and use the Hosted Programs, AdvancedMD Pay, and the Third Party Services solely for Permitted Entity’s own internal business operations, provided that Permitted Entity is not in breach of any separate agreements or obligations with AdvancedMD.
2.2. Permitted Entity shall not transfer, sell, lease, or lend the Hosted Programs, AdvancedMD Pay, or the Third Party Services, or any software or systems used to provide the Hosted Programs, AdvancedMD Pay, or the Third Party Services, or any contents, information, tools, and resources therein, to any third party. Permitted Entity shall not (i) allow any third party to access or use the Hosted Programs, AdvancedMD Pay, or the Third Party Services, or (ii) access or use the Hosted Programs, AdvancedMD Pay, or the Third Party Services for third-party training, commercial time-sharing, software hosting, rental or service bureau use.
2.3. Permitted Entity shall not download, modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Hosted Programs, AdvancedMD Pay, or the Third Party Services or in any software or system used by AdvancedMD in connection with providing the Hosted Programs, AdvancedMD Pay, or the Third Party Services.
2.4. AdvancedMD or its agents or contractors shall have the right to monitor use of the Hosted Programs, AdvancedMD Pay, and the Third Party Services by Permitted Entity. This audit right includes, but is not limited to electronic monitoring at any time.
2.5. AdvancedMD shall have the right to terminate use of the Hosted Programs, AdvancedMD Pay, and the Third Party Services by Permitted Entity, including for cause, and for any breach of a separate agreement or obligation to AdvancedMD.
2.6. To the limited extent that any provisions in this agreement are contrary to Permitted Entity’s rights, including those related to fees, with respect to certified API technology as set forth in the Developer Terms of Service at https://developer.advancedmd.com/terms, as such may be updated from time to time in AdvancedMD’s sole discretion, then the terms of the Developer Terms of Service shall control.
3. Third Party Services. Permitted Entity shall acknowledge and agree to all the terms related to Third Party Services as set forth on Exhibit E to the Terms of Service between Service Bureau and AdvancedMD. If the Permitted Entity will receive access to AdvancedMD Pay, then Permitted Entity shall acknowledge and agree to all the terms related to AdvancedMD Pay as set forth on Exhibit F.
4. Ownership of Hosted Programs, AdvancedMD Pay, and the Third Party Services. Permitted Entity acknowledges and agrees that as between Permitted Entity and AdvancedMD, AdvancedMD retains all title, copyright, and other proprietary rights in the Hosted Programs, AdvancedMD Pay, and the Third Party Services. Permitted Entity does not acquire any rights, express or implied, in the Hosted Programs, AdvancedMD Pay, or the Third Party Services, other than those specified in this agreement. AdvancedMD reserves the right to terminate any Permitted Entity from Hosted Programs, AdvancedMD Pay, and Third Party Services in AdvancedMD’s sole discretion. To the extent Permitted Entity obtains any right, title or interest in Hosted Programs, AdvancedMD Pay, the Third Party Services, or any software or other intellectual property developed by AdvancedMD as part of the Services, or in any update, enhancement, derivative, or modification to the foregoing, Permitted Entity hereby assigns to AdvancedMD any and all such right, title and interest. Permitted Entity acknowledges that any improvements, additions, or modifications to Hosted Programs, AdvancedMD Pay, the Third Party Services, or any software or other intellectual property developed by AdvancedMD as part of the Services, or any documentation related to the foregoing suggested by Permitted Entity, and all intellectual property rights contained therein, are the property of AdvancedMD, and Permitted Entity hereby assigns all right, title, and interest therein to AdvancedMD. Permitted Entity agrees to execute such documents as may be necessary or helpful for AdvancedMD to perfect and record the assignments set forth above. Except for the license grants expressly set forth in this Agreement, nothing in this Agreement grants to or confers in Permitted Entity any license or right of ownership in any of the foregoing. AdvancedMD and Service Bureau grant no implied licenses hereunder.
5. Access.
5.1. Permitted Entity may designate user account names and passwords for Providers, and for additional permitted non-Provider users associated with authorized Providers (which may include patients of Permitted Entity). Permitted Entity is responsible for safeguarding the confidentiality and use of account names and passwords, and agrees to take any and all actions necessary to maintain the privacy of such information.
5.2. Permitted Entity shall be liable and responsible for any and all activities conducted through its account, whether or not such activities have been authorized by Permitted Entity. Service Bureau and AdvancedMD will deem any communication, data transfer, or use of the Hosted Programs, AdvancedMD Pay, or Third Party Services received under Permitted Entity’s account names and passwords to be for Permitted Entity’s benefit and use.
5.3. Permitted Entity will promptly notify Service Bureau if account names or passwords are lost, stolen, or are being used in an unauthorized manner. Upon Permitted Entity’s request, Permitted Entity will provide Service Bureau with accurate and complete registration information of Providers, and the additional permitted non-Provider users associated with authorized Providers, that have access to the Hosted Programs, AdvancedMD Pay, or Third Party Services.
6. Permitted Entity Representations and Covenants.
6.1. Permitted Entity represents and warrants to Service Bureau that (i) Permitted Entity’s use of the Client Data in connection with the Services (including the right to transfer, store, process and cache Client Data in connection with the use of the Hosted Programs and the Third Party Services) complies with all Applicable Laws, and that Permitted Entity has received all necessary third party approvals with respect to the Services and its use of the Hosted Programs and the Third Party Services, and (ii) the Client Data, and Permitted Entity’s use of the Client Data (including storage, processing and caching of Client Data), do not infringe the intellectual property rights of any third party, and Permitted Entity agrees to indemnify and hold Service Bureau and AdvancedMD harmless from any third-party claims arising from Permitted Entity’s use of the Client Data in connection with the services.
6.2. Permitted Entity shall comply with all Applicable Laws and regulations applicable to Permitted Entity’s conduct of its business, including, without limitation, obtaining and maintaining all applicable federal, state and local licenses.
7. De-Identification. Provided that Service Bureau or another third party implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b) (or any successor provision thereto), such de-identified information is not Protected Health Information as defined under HIPAA; Permitted Entity acknowledges and agrees that Service Bureau or such third party may use such de-identified information for any lawful purpose. Permitted Entity acknowledges and agrees that Service Bureau or AdvancedMD may use and disclose PHI to provide Data Aggregation services to Permitted Entity and other Covered Entities as permitted by CFR 164.504(e)(2)(i)(B). As between the parties, AdvancedMD is the owner of any de-identified health information and any data set that aggregates Client Data with client data from other AdvancedMD clients.
8. Limitation of Liability.
8.1. NEITHER ADVANCEDMD NOR SERVICE BUREAU MAKES, AND EACH HEREBY DISCLAIMS, ANY WARRANTY OF ANY KIND WITH REGARD TO THE HOSTED PROGRAMS, ADVANCEDMD PAY, AND THE THIRD PARTY SERVICES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTELLECTUAL PROPERTY RIGHT INFRINGEMENT, AND/OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PERMITTED ENTITY ACKNOWLEDGES AND AGREES THAT NEITHER ADVANCEDMD NOR SERVICE BUREAU IS LIABLE FOR ANY DAMAGES, LOSSES OR INTERRUPTION OF PERMITTED ENTITY’S BUSINESS CAUSED BY THE FAILURE OF ANY THIRD PARTY SOFTWARE OR HARDWARE, INCLUDING ANY AND ALL PAYMENT PROCESSING, INTERNET, COMMUNICATIONS OR OTHER RELATED DEVICE. NEITHER ADVANCEDMD NOR SERVICE BUREAU IS UNDER ANY OBLIGATION TO REPLACE, REPAIR OR CURE ANY THIRD PARTY SOFTWARE OR HARDWARE. NO LOSS OR DAMAGE TO THE ADVANCEDMD PAY HARDWARE OR ANY PART OF SUCH HARDWARE WILL REDUCE OR TERMINATE ANY OBLIGATION OF PERMITTED ENTITY UNDER THIS AGREEMENT, WHICH WILL CONTINUE IN FULL FORCE AND EFFECT THROUGH THE TERM.
8.2. NEITHER PARTY, NOR ADVANCEDMD, SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, DATA OR USE, OR COST OF COVER SUFFERED BY A PERMITTED ENTITY, WHETHER IN AN ACTION IN CONTRACT OR TORT, AND EVEN IF THE PARTY HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. ADVANCEDMD IS NOT IN ANY WAY ENGAGED IN THE PRACTICE OF MEDICINE OR ACTING AS A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL OR PROVIDER. ANY TREATMENT, THERAPY, PROCEDURE, INFORMATION, MEDICATION, PRODUCT OR OTHER INFORMATION REFERENCED BY OR THROUGH SERVICES ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, THERAPY, PROCEDURE, INFORMATION, MEDICATION, PRODUCT OR OTHER INFORMATION. THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH THE PATIENT’S HEALTH CARE PROVIDER.
8.4. PERMITTED ENTITY’S USE OF THE HOSTED PROGRAMS, ADVANCEDMD PAY, THIRD PARTY SERVICES, OR ANY TEMPLATES MADE AVAILABLE TO PERMITTED ENTITY IN NO WAY CONSTITUTES THE PROVISION OF LEGAL ADVICE FROM ADVANCEDMD TO PERMITTED ENTITY.
8.5. Service Bureau and AdvancedMD’s total aggregate liability for damages suffered by Permitted Entity, any its Providers (or non-Provider users associated with authorized Providers), or any of its affiliates under this agreement shall in no event exceed (i) for any damages in connection with or otherwise related to AdvancedMD Pay, the total amounts actually paid by Permitted Entity for AdvancedMD Pay in the three (3) months immediately preceding the events giving rise to such claim less any and all payments paid by Service Bureau and AdvancedMD with respect to their liabilities in connection with or otherwise related to AdvancedMD Pay, and (ii) for any damages in connection with or otherwise related to all other Services, the amount of fees paid by Permitted Entity under this agreement for the most recent three (3) month period.
9. U.S. Government. The Hosted Programs and AdvancedMD Pay are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to AdvancedMD. If the Hosted Programs and AdvancedMD Pay are used under the terms of a DoD or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in this agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.
10. Termination. Service Bureau may terminate this agreement (or access to or use of one or more Hosted Programs, AdvancedMD Pay, or the Third Party Services) upon notice to the Permitted Entity. AdvancedMD may terminate access to or use of one or more Hosted Programs, AdvancedMD Pay, or the Third Party Services upon notice to the Service Bureau. Upon any such termination by Service Bureau or AdvancedMD, as the case may be, (i) Permitted Entity shall promptly return or destroy and remove from all computers, hard drives, networks, and other storage media, all copies and manifestations of AdvancedMD and Service Bureau’s Confidential Information and so certify in writing, and (ii) all rights granted to Permitted Entity under this agreement shall terminate and Permitted Entity will no longer have any right to access or use the Hosted Programs, AdvancedMD Pay, or the Third Party Services (including any data that may be accessible only through the Hosted Programs, AdvancedMD Pay, or the Third Party Services) and neither Service Bureau nor AdvancedMD shall be liable for any damages caused by such inaccessibility. Upon any termination of this agreement (or access to or use of one or more Hosted Programs, AdvancedMD Pay, or the Third Party Services), AdvancedMD shall have the right to maintain a copy of all Client Data in accordance with, and for the period of time it determines is required or permitted by, Applicable Law and, to the extent AdvancedMD in its sole discretion determines appropriate, shall have the right to provide access to or otherwise make available any or all of the Client Data to the Permitted Entity. If within 30 days of termination of the agreement Permitted Entity requests return of Client Data and Permitted Entity has not obtained an electronic copy of Client Data through any export functionality of the Hosted Programs, AdvancedMD will make available data export and retrieval methods and related services to Permitted Entity that AdvancedMD has determined are technically feasible and commercially reasonable as of the Client Data export request date. Permitted Entity acknowledges that data export and retrieval methods and related services available from AdvancedMD may change over time based on the features and functionality of the Hosted Programs, regulatory requirements and other factors. AdvancedMD will provide any mutually agreeable Client Data export and retrieval services to Permitted Entity at the lesser of AdvancedMD’s then-current rates or (b) a flat fee ranging from $1,250 to $2,250 (depending on the type of export requested), provided that on January 1 of each year such flat fees shall increase by the greater of (x) three percent or (y) the percentage increase in the Employer Cost Index for the then-most recently reported twelve (12)-month period published by the US Department of Labor, Bureau of Labor Statistics. Permitted Entity may contact AdvancedMD for additional details about the specific data and formats available under the then-available export options.
11. Survival. The provisions of Sections 4, 6, 8, 10, 11 and 12 of this agreement shall survive any termination of this agreement.
12. Third Party Beneficiary. Service Bureau and Permitted Entity each acknowledge and agree that AdvancedMD (and each of its affiliates) is an intended third-party beneficiary of this agreement for the purpose of enforcing at law and at equity the covenants of Permitted Entity and the warranty disclaimers and limitations of liability set forth in this agreement, whether or not such provisions make specific reference to AdvancedMD (or such affiliates).
