This Agreement governs your purchase of a license to and use of the Services.The parties agree as follows: 1. DEFINITIONS. In the Agreement, the following words shall have the following meanings and agreement(s): “Agreement” has the meaning set out in the Purchase Order and any amendments thereto. Agreement will be interpreted to include each Purchase Order entered into by the parties. “Appeal” means any correspondence to a third-party payer communicating a request to reconsider claim(s) denial. “A La Carte Services” means services available to the clinic for a fee. The services and fees are listed on the client Subscription Page under Clearinghouse. “Base System” means the provision by ChiroSpring to Client of Electronic Health Records, Scheduler, Billing Software, PRM, SMS, Provider App, Patient App, Software Upgrades, Software Backup, and Customer Support. The Base System is provided in 3 packages, each with their own set of offerings described in the Purchase Order and on the Clinic Settings Subscription Page: ChiroSpring 360 Pro +, ChiroSpring 360 Pro, ChiroSpring 360 .
“Billing Period” means one month. The period begins and ends on the day of the month the Agreement occurred, or last day of the month, whichever comes first.
“Billing Services” means the claims activities undertaken by ChiroSpring to process, submit, receive responses and communicate about claims the Client approved and submitted to ChiroSpring
“Billing Company” means ChiroSpring, the company providing billing services to client.
“Proactive Billing Service” means an optional billing service Client can choose wherein: ChiroSpring provides claim scrubbing, serves up to Client recommendations on how to overcome denials and executes on a per/claim reasonable (as determined by ChiroSpring) billing service request by you per/denied claim. Optional Services listed on the Purchase Order are charged separately and additional to the per claim charge.
“Reactive Billing Service” means an optional billing service Client can choose wherein: ChiroSpring provides claim scrubbing, performs billing services through the ChiroSpring Service Center and executes on a per/claim reasonable (as determined by ChiroSpring) billing service request by you. Optional Services listed on the Purchase Order are charged separately and additional to the per claim charge. “Canceled Claim(s)” means any time a claim is submitted in error to a third-party payer which requires a subsequent canceled claim to be submitted nullifying the original claim. “ChiroSpring” means ChiroSpring Inc. and its affiliates. “Claim(s)” mean healthcare financial transaction(s) between Client and government agencies, insurance carriers and other companies. “Claim Assembly” means any time ChiroSpring or a ChiroSpring affiliate assists the Client to create a claim, in whole or part, by reviewing the Client’s electronic health records (EHR) and constructing a claim to match the services documented as performed. The Client agrees to truthfully, completely, and timely enter into the EHR an accurate description of the services performed on the patient. After the claim has been assembled by ChiroSpring or a ChiroSpring affiliate, the Client agrees to review each claim for accuracy and certify the accuracy of the assembled claim prior to completing the claim or submitting the claim to ChiroSpring for submission to third party payers.
“Claim Scrubber” means the technology used to identify errors with claims. “Clearinghouse” means when client selects this service, ChiroSpring pays for and manages that connection and auto posts Client’s ERA files. Clearinghouse comes with up to 1,000 claims per month. If Client requires more than 1,000 original claims to be submitted in a given month, an additional charge will be accessed per claim (see Excess Claims). In the event an ERA file cannot be posted, manual entry posting will be charged at $0.40/charge.
“Excess Claims” are defined as each claim over 1,000 per month per Client. Claims beyond 1,000 in a given month will be $0.35 each. “Client” means entity identified on the Purchase Order. “Client Data” means data that originates from Client and Client provides to ChiroSpring for processing or storage in the performance of the Services. “Clinic Directed Write-off” means any time Client requests that a manual write-off be performed by ChiroSpring. “Confidential Information” means the business or technical information disclosed by a party to the other party that is identified as being confidential at the time of disclosure or disclosed under circumstances that would lead a reasonable person to believe such information is confidential. “Consultant Templates” means Electronic Health Record patient documentation template(s) created and owned by ChiroSpring that meet the specifications of a consulting group. “Data Conversion” means any time ChiroSpring is required to take data from any source and add that data to the Client's information. The Client shall supply ChiroSpring with all patient demographic information with a csv file or excel file for each Client patient, containing no more than 20 rows or columns for each patient. The Client is responsible for all data supplied to ChiroSpring. The Client agrees to cleanse the data prior to data conversion. If ChiroSpring performs a data conversion and only partial data is obtained because of barriers created by external sources, the Client will still be required to pay the full data conversion fee. “Disclosure” means the action of making new or secret information known. “Documentation” means the written, electronic, or online user manuals, content and help materials related to the Services that describe how to use the features and functions of the item. “Electronic Claims” means any time ChiroSpring receives electronically from Client claim(s), processes claim(s) electronically or receives electronic EOBs from the clearinghouse. “Enhancement” means a modification, enhancement, adaptation, improvement, change, or customization of or to the System and or the Services that is created by ChiroSpring in the performance of the Services. “GrowthHub” means some inclusions described in the Purchase Order and Clinic Settings Subscription Page. These inclusions are not available in ChiroSpring 360. “HIPAA Rules” means the Health Insurance Portability and Accountability Act of 1996, 45 U.S.C. § 1320d-9, as amended by the HealthInformation Technology for Economic and Clinical Health (“HITECH”) Act of 2009, and its implementing regulations set forth at 45 C.F.R. Parts 160 and 164. “Insurance Verification” means any single claim contact per patient made by ChiroSpring to a Clinic’s patient payer to determine eligibility or coverage information. “Non-Participating Payor” means a Payor that has elected not to subsidize any portion of the costs associated with translating, editing, processing and reporting of electronic claims and other transactions on behalf of its contracted Providers.
“Optional Services” means ChiroSpring services that Client may request or occur that client agrees to pay extra for. These services are listed on the client platform Subscription Page under optional services. Services turned off, may take some time to complete and will be charged to Client after completion. “Participating Payer” means a Payer which is either contracted directly with the Provider or has elected to subsidize a portion of the costs associated with translating, editing, processing and reporting of electronic Claims and other transactions on behalf of its contracted Providers. “Party or Parties” means, individually, a party to the Agreement, and, collectively, the parties to the Agreement, as set forth on the Purchase Order. “Patient App” means an App the Client may have patient and community members download at the App Store or Google Play, which provides the patient and community members a way to communicate and engage with the Client. “Patient Forms” means custom forms technology by ChiroSpring or a ChiroSpring partner. “Payer” means an entity other than the patient that finances or reimburses the cost of health services, for example, insurance carriers, other third-party payers, or health plan sponsors (employers or unions). “Postage Fee” means any time ChiroSpring, or its affiliate sends a paper claim to a 3rd party payer via mail. “Pre-Certification” means any time ChiroSpring communicates a request to a third-party payer regarding the patient’s treatment needs. “Professional System” means the list of base services as indicated on the Purchase Order. “Provider” means any person that renders a service to a patient in a capacity that generates a Claim. “Provider App” means an App the Client may download at the AppStore or Google Play, which provides the Client’s providers a subset of capabilities to document patient care using their smartphone. “Purchase Order” means the ChiroSpring document that lists the services ChiroSpring will provide to Client and the fees that Client agrees to pay for the base services. There are additional “A La Carte Services” available for a fee listed in the Service Center and on the Subscription Page. “Recipient” means a person, persons or entity who receives. “Services” means all services provided by ChiroSpring as set out in a Purchase Order and A La Carte services. Charges may apply for A La Carte services as defined in the service center. “Territory” means the United States of America and the Commonwealth of Puerto Rico or any other geography as agreed to in writing by the parties.
2. RIGHTS and RESPONSIBILITIES.
2.1 Grant of Rights. Subject to the other provisions of the Agreement, ChiroSpring hereby grants Client a right to access the System and use the Services in the Territory in accordance with this Agreement and for its internal business operations. Rights granted hereunder will be for the Term of this Agreement subject to the termination provisions of this Agreement. No other rights to the System or Services are granted except as expressly set out herein.
2.2 Responsibilities. Client shall use the Services in accordance with the product usage manuals and guides that ChiroSpring makes available from time to time. Client shall limit access to the System and use of the Services to Authorized Users and for Authorized Use only. Client is responsible for acquiring and maintaining internet, computer servers, workstations, printers, routers, modems and other related communications equipment used by Client to access the Services. ChiroSpring neither represents nor warrants that the Services will be accessible through all web browser releases or used with all operating systems. Client accepts responsibility for and acknowledges that Client will exercise independent judgment in its use of the Services and shall be solely responsible for such independent judgment. Client acknowledges that the Services are in no way intended to intervene in the rendering of healthcare services. Client may translate information from the Services into other internal software applications or manual work processes for purposes directly related to Authorized Use of the Services. However, Client may not translate, disclose, or create any derivative work products from the Services for any commercial purposes or for distribution to another entity.
2.3 Restrictions. Except to the extent the Agreement expressly provides otherwise, Client shall not, and shall not permit any other entity to: (i) sell, resell, lease, license, sublicense, rent, distribute, disclose or encumber the Services; (ii) decompile, disassemble, reverse engineer or otherwise attempt to decrypt, discover or use the source code for the Services; (iii) make unauthorized copies of Services; (iv) use the Services to provide service bureau, business process outsourcing, administrative, application support, timesharing, SaaS, or similar services to any entity; (v) modify any Service, or the structure or schema of any database used by any of the foregoing, except to the extent that applicable law grants Client a right to do so and the right cannot be waived by contract; and (vi) remove, modify, or obscure any proprietary rights notices contained on or in the Services.
2.4 Acknowledgements. Client acknowledges that (i) the Services are controlled by ChiroSpring and Client has no right to receive a copy of the object code, source code or content used to provide any EDI Service; (ii) ChiroSpring will update the Services from time to time, which means that the Services will evolve and some changes will occur automatically while others may require Client to schedule and implement the changes; and (iii) the System and the Services may be protected by license keys, authentication procedures or other security mechanisms designed to protect them from unauthorized access or use. ChiroSpring may update, modify or change the Services (or any aspect of the Services) from time to time in its sole discretion.
3. Optional Services. This Agreement sets forth the terms and conditions under which ChiroSpring shall provide Optional Services indicated on the Purchase Order and individually listed at the Service Center, requested by Client and performed by ChiroSpring at their reasonable discretion and the activities specified in this Section 3.
3.1 Service Selection. Client may upgrade to an increased level of service at anytime. Client agrees that ChiroSpring can limit the start and stop of certain services to the clinic’s Billing Period start date. The increased fees for the upgrade take effect immediately and will be charged at the full rate for the entire monthly period even if the upgrade occurred part way through the Billing Period. Client may decrease their level of services by providing ChiroSpring written notice. Client will be charged the full rate for the entire Billing Period even if the downgrade request occurred part way through the Billing Period. For Proactive Billing Services (PBS) and Reactive Billing Services (RBS), each of those Billing Services result in the need for ongoing services for the claims submitted prior to the downgrade starting. A Client currently selecting PBS or RBS must give to ChiroSpring at a minimum a 60-day documented notice before the downgrade occurs on the Client’s last day of the Billing Period.
3.2 Operations. ChiroSpring shall support file transfer protocol or website processing of Claims between Client and clearinghouses and third-party payers by either electronic or paper means. Details regarding System operations, processing times and customer support are available at http://www.ChiroSpring.com. Upon notice to Client, ChiroSpring may revise such details from time to time so long as such revisions do not materially diminish the functionality of the Services.
3.3 Training. ChiroSpring shall provide training for Claim transmission and data management reports to Client via telephone or the internet. Clients will receive 60 days of initial training at no additional cost. Subsequent instruction can be obtained through ChiroSpring’s red customer service button found on articles, email and chat made available within the Services. Clients on the ChiroSpring 360 System will not receive any phone assistance but may access Customer Service through the red help button.
4. LEGAL LIMITATIONS. Client (and its providers) warrant that it is not currently listed by a Federal or State agency as excluded, debarred, or otherwise ineligible for participation in any Federal or State healthcare program. Client agrees to immediately inform ChiroSpring if any Federal or State agency excludes, debars or otherwise makes the Client ineligible for participation in a Federal or State healthcare program. Client agrees that it will not employ, contract with, or otherwise use the services of any individual whom it knows or should have known, after reasonable inquiry has:
4.1 Conviction. Been convicted of a criminal offense related to health care (unless the individual has been reinstated to participation in Medicare and all other Federal or State healthcare programs after being excluded because of the conviction); or
4.2 Listed. Is currently listed by a Federal or State agency as excluded, debarred, or otherwise ineligible for participation in any Federal or State healthcare program and further agrees that it will immediately notify the other if it, or any person in its employ, has been excluded, debarred, or has otherwise become ineligible for participation in any Federal or State healthcare program. Client agrees to continue to make reasonable inquiry regarding the status of its employees and independent contractors on a regular basis by reviewing the General Service, Administration's List of Parties Excluded from Federal Programs and the United States, Department of Health and Human Services/Office of inspector General list of Excluded IndividualEntities.
5. DISCLAIMER OF WARRANTY. ALL WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, AND OF NONINFRINGEMENT. CHIROSPRING SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING UNDER STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. CHIROSPRING DOES NOT WARRANT THAT SOFTWARE AND BILLING SERVICE SWILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS.
6. FEES AND TAXES.
6.1 Pricing. Client shall pay to ChiroSpring the applicable monthly fees for the Services listed on the Purchase Order/Subscription Page and modified from time to time by ChiroSpring adjusting the Purchase Order fees. ChiroSpring reserves the right to modify, and Client agrees that ChiroSpring may modify the Purchase Order Agreement/Subscription Page details and fees upon 30 days’ prior written notice to Client.
6.1.1. Timing. For the Base Fee billed on a ‘flat or fixed fee’ basis, ChiroSpring will invoice Client on the day of each month near the day of the month when this Agreement began for the Services that are to be provided during that month. For any Optional Services billed on a ‘per transaction’ or month basis, ChiroSpring will invoice Client near the day of the month when this Agreement began for transactions incurred during the prior month. Invoicing shall begin 30 days after the Effective Date. 6.1.2. Payment. Client shall pay all undisputed invoiced amounts to ChiroSpring within 15 days of the receipt of the invoice. If Client fails to submit payment to ChiroSpring within such period, Client shall be responsible for paying, in addition to the undisputed invoice amount, a 1.5% per month late fee, or the maximum rate permitted by applicable law if less, for each month or any portion thereof, such payment is late, with a minimum late fee of $5.00. Failure to make payment within 30 days may result in Client’s account being turned over to a collection agency and Client shall also be responsible for all charges associated with collections on Client’s account.
6.1.3. Invoice Dispute. Prior to the payment due date, Client may dispute an incorrect invoice by notifying ChiroSpring in writing of the disputed amount and the reason for the dispute in reasonable detail. If Client fails to provide such notice, then Client shall have waived any right to dispute the payment obligation. Disputed invoices shall be resolved pursuant to Section 12.
6.1.4. Suspension. ChiroSpring shall be entitled to suspend, restrict and/or terminate the Services during any period in which amounts are past due, without incurring any liability to Client.
6.1.5. Billing Contact. Client shall provide ChiroSpring with a billing contact name, e-mail address, business mailing address, and contact phone number for receipt of invoices and correspondence related to payment. Client shall notify ChiroSpring in writing of any updates or changes to billing contact information no later than five business days from the date of the change.
6.2. Taxes. All fees are stated exclusive of taxes. ChiroSpring may charge Client for, and Client shall pay, all taxes, assessments, charges, duties, or levies imposed by any taxing authority relating to the Agreement or the delivery of the Services. Applicable taxes include sales, goods and services, use, lease, excise, consumption, stamp duty, value added, and gross receipts taxes. Client is not required to pay or reimburse ChiroSpring for any of ChiroSpring’s employment taxes or any taxes imposed on or measured by ChiroSpring’ net or gross income or property ownership. If Client is exempt from any taxes, Client shall provide ChiroSpring appropriate exemption documentation prior to the Effective Date of the Agreement.
7. CLIENT’S OBLIGATIONS.
7.2. Data. Client is responsible for the completeness and accuracy of all Client Data submitted to ChiroSpring. Client acknowledges that ChiroSpring has no legal responsibility with respect to such Client Data. Client shall provide ChiroSpring with all technical data and all other information ChiroSpring may reasonably request from time to time to allow ChiroSpring to supply the Services to Client. Information supplied by Client shall be complete, accurate, and given in good faith, and such information shall be treated as Confidential Information under the terms of the Agreement.
7.3. Cancellation. Client shall provide written notice to ChiroSpring of any Services that require termination from the System or to downgrade the Service option. Until such time, ChiroSpring shall continue to invoice Client for such Services, and any amounts paid for these Services are non-refundable. Clients under a annual agreement (contract) will be required to pay out the remainder of their contract (based on the services selected when initially enrolled) should they choose to terminate prior to contract end date.
Client may export all of their data on their behalf (this includes saving notes, uploaded images/documents, etc) to their own device. Client may opt for our team to export notes, demographics and documents for a $1,000 one time fee.
7.4. Authorization. Client shall cooperate with ChiroSpring and shall execute and deliver such documents and take such other actions as ChiroSpring may reasonably request for the purposes of completing any electronic data interchange insurance plan enrollment and registration forms that may be required by a Payer. To provide Services, Client authorizes ChiroSpring to receive EDI transactions for Client.
8. CONFIDENTIALITY. 8.1. Confidential Information. The term “Confidential Information” means the business or technical information disclosed by a party to the other party that is identified as being confidential at the time of disclosure or disclosed under circumstances that would lead a reasonable person to believe such information is confidential. The terms of the Agreement and any user identification and password that affects Client’s access to or use of the Services are also considered Confidential Information. Excluded from the definition of Confidential Information is information that: (i) is or becomes generally known or available to the public (unless due to a breach of the Agreement by Recipient); (ii) was known by Recipient without restriction as to use or disclosure before receipt of the information from Disclosure; (iii) is acquired by Recipient from a third party who has the right to disclose it without restriction as to use or disclosure; or (iv) is independently developed by Recipient without using any Confidential Information of Disclosure or violating Discloser’s intellectual property rights. For clarity, a compilation of public information in a form not publicly known is considered Confidential Information of Disclosure notwithstanding the public availability of the information before compilation.
8.2. Use and Disclosure. Each Party acknowledges that during the term of the Agreement, Recipient may have access to the other Party’s Confidential Information. The Recipient agrees that such Confidential Information is proprietary to the Disclosure and shall remain the sole property of the Disclosure. Except as expressly permitted by this Section 8, Recipient shall (i) not disclose or use Disclose Confidential Information; (ii) use the same level of care to prevent unauthorized disclosure or use of Disclosing Confidential Information as Recipient uses with its own similar information, but no less than a commercially-reasonable level of care; (iii) use Confidential Information only for the purposes described in the Agreement; (iv) immediately notify Disclosure upon discovery of any loss or unauthorized disclosure of the Discloser’s Confidential Information; and (v) to return or destroy all Confidential Information upon termination of the Agreement pursuant to Section 8.3 below. Notwithstanding the foregoing, the Recipient shall be allowed to disclose Confidential Information of the Disclosure to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body. These nondisclosure and nonuse obligations survive for a period of five years following the return or destruction of the Confidential Information.
8.3. Return or Destruction of Confidential Information. Upon termination or expiration of the Agreement, Recipient shall return or destroy all originals and copies of Confidential Information. The obligation to return or destroy Confidential Information shall not apply to archival copies of Client Data that ChiroSpring creates in the performance of s if the copies are maintained at a secure ChiroSpring facility or the secure facility of a reputable third-party data backup services provider, provided ChiroSpring does not access the Client Data for any unauthorized purpose. If requested by Disclosure, Recipient shall certify that it has met its obligations under this Section 8.3.
8.4. Feedback. Any feedback, comments, suggestions, or proposed modifications to the Services (or any aspect thereof) provided by to ChiroSpring may be freely used by ChiroSpring without limitation, notice, or duty of accounting.
9. TERM AND TERMINATION.
9.1. Term. The term of the Agreement shall begin on the Effective Date and continue for a period of one year and shall automatically renew for successive one-year terms unless Client has chosen the monthly term option as indicated in the Purchase Order. The monthly term option allows the Client to terminate at any time with 60 days written notice.
9.2. Termination. The Agreement cannot be terminated by the Client without completing the current term. The Client must give at least 60 days’ written notice to terminate before the end of a term for termination to be effective for the next term. However, if Client is in breach of this Agreement, ChiroSpring reserves the right to terminate the Services immediately upon notice to Client.
9.3. Effect of Termination. Upon expiration or termination of this Agreement for any reason: (Client will immediately cease use of the System and all services and, within thirty (30) days after termination or expiration of this Agreement, return to ChiroSpring or, at ChiroSpring’s written request destroy, all ChiroSpring Confidential Information in Client’s possession or control. This section and the following sections survive any expiration or termination of the Agreement: 2.3, 5, 6, 8, 11, 12, 13, 14.3, and 15.
10. INDEMNITY OBLIGATION.
10.1 IP Indemnification. If an unaffiliated third party brings a claim in the United States against Client because its authorized use of the Services infringed, violated or misappropriated, or is alleged to have infringed, violated or misappropriated, the third party’s Intellectual Property Rights (a “Third-Party IP Claim”), then ChiroSpring shall defend the claim, pay all defense costs, pay any settlement amount negotiated by ChiroSpring, and pay all damages awarded by a court after all appeals have concluded. If a Third-Party IP Claim will bar Client’s use of the applicable EDI Service, then ChiroSpring shall at its cost and in its sole discretion undertake commercially reasonable efforts to (i) modify the EDI Service to make it noninfringing; (ii) procure any license necessary to permit Client to exercise the rights granted under the Agreement; (iii) replace the affected EDI Service with one that is functionally comparable and noninfringing; or (iv) terminate this Agreement.
10.2. Exceptions. ChiroSpring has no obligations for any Third-Party IP Claim to the extent that it arises or results from (i) use or combination with hardware or software items other than those indicated as being compatible in applicable the Documentation; (ii) a modification or enhancement made by any entity other than ChiroSpring or its authorized agents or contractors; (iii) use not contemplated by the Agreement or Documentation; (iv) ChiroSpring’s compliance with instructions, designs, specifications, directions or technical information provided by Client.
10.3 Procedure. ChiroSpring’s indemnity obligations in this Section 10 are conditioned on the Client (i) promptly notifying ChiroSpring of any claim subject to or potentially subject to an indemnification obligation; (ii) cooperating with ChiroSpring in the defense of the claim; and (iii) granting ChiroSpring sole control of the defense and settlement of the claim. Client may monitor the defense undertaken by ChiroSpring at the Client’s expense and with counsel of its choosing. 10.4. Sole and Exclusive. This Section 10 states the sole and exclusive obligations and liabilities of ChiroSpring for any Third-Party IP Claims.
11.1 COMPANY SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS CLIENT, ITS MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, SETTLEMENTS, DEMANDS, LOSSES, COSTS, EXPENSES, OBLIGATIONS, LIABILITIES, DAMAGES, RECOVERIES, AND DEFICIENCIES, INCLUDING, INTEREST, PENALTIES AND REASONABLE ATTORNEY’S FEES AND COSTS, THAT CLIENT MAY INCUR OR SUFFER WHICH ARISE, RESULT FROM, OR RELATE TO ANY BREACH OF OR FAILURE BY COMPANY TO PERFORMANY OF ITS DUTIES AND/OR RESPONSIBILITIES DESCRIBED IN THE AGREEMENT, ANY ACTOR OMISSION OF COMPANY, INCLUDING, WITHOUT LIMITATION, NONCOMPLIANCE WITH ANY LOCAL, STATE, OR FEDERAL STATUTES, RULES, OR REGULATIONS, AND ALL THIRD-PARTY PAYOR RULES AND REGULATIONS GOVERNING HEALTH INSURANCE PAYMENTS. IF CLIENT SHALL GIVE PROMPT WRITTEN NOTICE OF SUCH CLAIM TO COMPANY; EXCEPT THAT ANY DELAY OR FAILURE OF NOTICE SHALL NOT RELIEVE COMPANY OF THE OBLIGATIONS HEREUNDER EXCEPT TO THE EXTENT SUCH DELAY HAS MATERIALLY PREJUDICED COMPANY.
11.2. Cap on Liability. CHIROSPRING’S ENTIRE LIABILITY FOR ALL LOSSES, LIABILITIES AND DAMAGES ARISING OUT OF, OR RELATED IN ANY WAY TO THE AGREEMENT,IS LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE SOFTWARE AND BILLING SERVICES IN THE MOST CURRENT PURCHASE ORDER, AND IN NO EVENT SHALL CHIROSPRING’SLIABILITY IN THE AGGREGATE FOR ALL CLAIMS AND CAUSES OF ACTION UNDER THE AGREEMENT EXCEED THE TOTAL OF ALL PAYMENTS RECEIVED BY CHIROSPRING FROM CLIENTIN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM BROUGHT BY CLIENT UNDER THE AGREEMENT.
11.3. Application. To the maximum extent permitted by law, Section11.1 Limitations of Liability applies (i) regardless of the form of action or theory of liability (including breach, negligence, misrepresentation, strict liability or other contract or tort claim), and (ii) whether or not the Party was advised of the possibility of damages and whether or not the damages were reasonably foreseeable. ChiroSpring’s cap on liability defines the maximum amount for which ChiroSpring is responsible.
11.4. Exceptions. Section 11.1 shall not apply to (i) claims related to any default of a confidentiality obligation; (ii) indemnity obligation underSection 10; (iii) claims by ChiroSpring for infringement, violation, or misappropriation of intellectual property rights; or (iv) any failure by a Party to pay any amounts due to the other Party.
12. DISPUTE RESOLUTION. Subject to each Party’s right to seek injunctive or equitable relief for any default under the Agreement, in the event of any dispute or claim that arises under or relates in any way to the Agreement (“Dispute”), the Parties shall follow the procedures in this Section12. Either Party shall notify the other Party in writing of the Dispute(“Dispute Notice”). Within 10 business days after receiving a Dispute Notice, each Party’s designated representatives shall meet (in person, telephonically, or by video conference) and shall attempt to negotiate a resolution within 10 business days. If the representatives are unable to resolve the Dispute within such period, or any additional extension of time that is mutually agreed upon in writing, such Dispute shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Any actions taken under this Section 12 shall remain confidential and be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and any comparable state provision. If the Client alleges a claim in whole or in part, during a dispute, that is not successful, Client agrees to pay ChiroSpring’s litigation expenses and attorney’s fees. The venue for any dispute is agreed by the Parties to be Scott County, Iowa.
13. DATA ANALYTICS. Client hires and authorizes ChiroSpring to extract Client Data from any existing database and to de-identify the Client Data in accordance with HIPAA (as defined below) to create a de-identified dataset. Client grants ChiroSpring a nonexclusive, worldwide, paid-up, royalty-free, perpetual, and irrevocable right and license to create derivative works of the data set and to use, copy, process, analyze, execute, reproduce, display, perform, transfer, distribute, and sublicense the data set and such derivative works in any technology now existing or later developed. Subject toClient’s sole continuing ownership of Client Data, ChiroSpring shall own all such data sets, and all products, solutions, and services that it creates using the data sets, and all of the intellectual property rights embodied in and related to the data sets and such products, solutions and services.
14. LEGAL COMPLIANCE. Each Party shall comply with all laws applicable to its business and to its performance, receipt, and use of the Services. Each Party shall identify and procure any permits required to conduct its business and perform its obligations under the Agreement. Without limiting the foregoing, the parties agreed to the further requirements set out in this section below.
14.1. HIPAA. This Agreement contemplates the exchange of Protected Health Information (PHI) between the Parties. To meet the applicable requirements of the HIPAA Rules, the Parties agree to be bound by the terms of the business associate agreement set forth on the Purchase Order.
14.2. SPEECH TO TEXT & OTHER TECHNOLOGIES (ADVANCED TECHNOLOGIES). ChiroSpring Software contains blank memo sections and Protected Health Information (PHI) in other fields. Many computer devices allow the device user to access Advanced Technologies (ATS). Some of these ATS share voice files, page reads and data with parties who do not have HIPAA BusinessAssociate Agreements. PHI includes the following data: (A) Names; (B) All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code if, according to the current publicly available data from the Bureau of the Census: (1) The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and (2) The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000. (C) All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older; (D) Telephone numbers; (E) Fax numbers; (F) Electronic mail addresses; (G) Social security numbers; (H) Medical record numbers; (I) Health plan beneficiary numbers; (J) Account numbers; (K) Certificate/license numbers; (L) Vehicle identifiers and serial numbers, including license plate numbers; (M) Device identifiers and serial numbers; (N) Web Universal Resource Locators (URLs); (O) Internet Protocol (IP) address numbers; (P) Biometric identifiers, including finger and voice prints; (Q) Full face photographic images and any comparable images; and (R) Any other unique identifying number, characteristic, or code, except as permitted by paragraph (C) of this section.
14.3. PHI DISCLOSURE. Client assumes all liability and agrees to disable or otherwise restrict all of their users from being able to disclose PHI using Advanced Technologies (ATS) on the user’s devices, unless the Client has instituted permissible PHI disclosures with the advice of legal counsel: (1) Including a paragraph in every signed patient HIPAA consent that permits PHI disclosure (Sample- This clinic uses speech and other advanced technologies in the devices that document your care. These technologies disclose PHI to other entities who do not have Business Associate Agreements with the clinic. The clinic uses these technologies because they improve documenting your patient care and lead to better outcomes. You consent to the disclosure of your PHI to entities with no HIPAA Business Associate Agreement); (2) Providing to its users’ guidance on limiting PHI disclosures through device settings; (3) Instructing users to not speak PHI into memo fields on the ChiroSpring software; (4) Instructing users on proper security measures and (5)Implementing other HIPAA PHI security measures under the advice of the Client healthcare attorney.
14.4. OTHERS LICENSE. Client assumes all responsibility and liability for obtaining any license required by any entity including but not limited to the American Medical Association (AMA) for the usage of the Physicians Current ProceduralTerminology (CPT), ICD-10, ICD-9, ICD-10-CM, ICD-10-PCS and HCPCS.
15. GENERAL PROVISIONS.
15.1 Publicity. Client agrees to serve as a customer reference for ChiroSpring. Additionally, Client shall permit ChiroSpring to feature Client in a press release upon execution of this Agreement and shall permit ChiroSpring to feature Client in marketing materials following the implementation of the Services. ChiroSpring and Client agree to collaborate on public announcements and marketing materials and shall refrain from issuance or distribution of marketing materials without first obtaining the prior written consent of the other party, which shall not be unreasonably withheld.
15.2 Governing Law and Jurisdiction. The Agreement is governed by and shall be interpreted in accordance with the laws of the State of Minnesota, excluding its conflicts of law provisions that might require the application of laws of another jurisdiction. The parties agree that Otter Tail County Minnesota shall be the jurisdiction for any dispute.
15.3 Export. Client acknowledges that the Services and related technical data is subject to United States exports laws and controls. Client shall not itself, or permit any third party, to, export, re-export or release, directly or indirectly, the Services to any country, jurisdiction or individual person to which the export, re-export or release of the Service (a) is prohibited by applicable law and associated regulations or (b) without first completing all required undertakings, including obtaining any necessary export license or other governmental approval. Client indemnifies and hold ChiroSpring harmless from any breach of this section.
15.4 Assignment. All assignments of the Agreement require ChiroSpring’s prior written consent. Any attempted assignment without this consent is void.
15.5. Notice. All notices required in the Agreement shall be in writing. Notices are effective (i) upon actual delivery, if the notice is delivered personally by a Party, if the notice is delivered by a nationally-recognized delivery service that can confirm the date of delivery, or if the delivery is made by the U.S. Postal Service as certified or registered mail and the return receipt confirms the date of delivery, or (ii)when the receiving Party confirms receipt, if the notice is delivered electronically by facsimile or e-mail. Each Party may change its address for receiving notices by notice to the other Party. Each Party’s address for notice is listed on the Purchase Order.
15.6. Medical/Legal Disclaimer. The Services provided under the Agreement are not medical devices and are not intended to be used in the diagnosis or treatment of medical conditions. ChiroSpring personnel and the Services are not intended as sources of medical or legal advice. Client assumes the responsibility and liability of obtaining its own legal counsel and opinions as to compliance regarding any actions taken by the Client in using this Billing Software and Services.
15.7. Relationship. The Parties are independent contractors. The Agreement does not establish any relationship of partnership, joint venture, or agency between Client and ChiroSpring.
15.8 Basis of the Bargain. THE PARTIES HAVE ENTERED THE AGREEMENT RELYING ON THE ENFORCEABILITY OF THE LIMITATIONS OF LIABILITY. THE LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THEY APPLY EVEN IF A REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 15.9. Severability. If an arbitrator or a court with jurisdiction finds a provision of the Agreement to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible, the other provisions of the Agreement shall remain in full force and effect, and the invalid or unenforceable provision shall be revised by the arbitrator or court to most closely reflect the original intent of the Parties while remaining valid and enforceable.
15.10. Waiver. A waiver of any provision of the Agreement is enforceable only if it is signed by the waiving Party.
15.11. Force Majeure. If a Party is delayed or prevented from performing anon-payment obligation due to a cause beyond its reasonable control, then the delay or non-performance will be excused until the cause is removed and the period of performance will be extended for a reasonable period of time after the cause is removed. Force majeure events include but are not limited to natural disasters, labor or civil unrest or dispute, embargoes, blockages, work stoppages, lockouts, inability to obtain energy, war, terrorism, riots, protests, telecommunications outages, server outages, ransomware, denial of service and other cyber-attacks, and acts or omissions of the other Party or third parties.
15.12. Survival of Terms. Any provisions of the Agreement that require or contemplate performance or application after termination are enforceable against the other Party and its respective successors and assignees notwithstanding termination.
15.13. Amendments. ChiroSpring reserve the right, at ChiroSpring’s discretion, to change the terms of the Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies Client’s rights or obligations, you will be required to accept the modified Agreement in order to continue to use theService. Material modifications are effective upon Client’s acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
15.14. Construction; Entire Agreement. These terms of service govern the provision of all Services to you. ChiroSpring may enter into one or more Purchase Orders with Client that may contain additional terms or conditions. Upon acceptance of a Purchase Order, it will be incorporated into the Agreement. The Agreement, along with periodically updated: Appendix A, Base System Terms of Service, Provider App Terms of Service, Business Associate Agreement and any appendices and/or exhibits, is the entire agreement between the Parties and supersedes all prior discussions, understandings and agreements between the Parties regarding its subject matter. Handwritten interlineations to the Agreement are void.
15.15 Legal Fees and Costs. In the event either Party brings any action for relief against the other, declaratory or otherwise, arising out of the Agreement (including actions to enforce and interpret the Agreement), the losing Party shall pay to the prevailing Party, in addition to any other relief to which such Party shall be entitled, a reasonable sum for attorneys’ fees incurred in bringing such suit and/or enforcing any judgment granted therein, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment, in addition to any other relief to which such Party shall be entitled.
15.16 Claim Scrubber – ChiroSpring provides use of its Claim Scrubbing technology (not available in all software packages). Client agrees that client is fully responsible for any and all codes and claim submittals made to ChiroSpring after following recommendation of any warning, modified by ChiroSpring and all claims submitted to payers. Clinic is required to notify ChiroSpring within 30-days of any modified codes, if said codes do not accurately reflect treatment rendered. Client assumes full responsibility for the accuracy, truthfulness and legality of the codes submitted and or modified. Client will indemnify and hold harmless ChiroSpring, and its directors, officers, agents and employees, from and against any and all claims, losses, actions, damages, expenses and all other liabilities, including but not limited to attorney’s fees, solely arising out of or resulting from any intentional act, negligent act or omission of Client and/or it’s employees related to the performance of services.
16. BILLING SERVICES
When client engages in ChiroSpring’s billing services, client expressly authorizes Billing Company (ChiroSpring) to prepare, process, and submit claims to commercial and government payors.
16.1. Reasonable Assistance. Client agrees to provide Billing Company with all necessary records, information, and assistance to enable Billing Company to provide the Services at no cost to Billing Company. Client shall be responsible for ensuring the accuracy and completeness of coding associated with claims and for ensuring the medical necessity and appropriateness of the Services for which Client has billed and a claim will be submitted. Billing Company will not alter any of the Client’s coding. Client is solely responsible for all diagnosing and coding. Client also agrees to provide Billing Company a copy of all Explanation of Benefits forms received from third party payors, as well as all records of payments received from insurance companies, attorneys, patients, or other applicable parties, within seven days of Client’s receipt thereof. These shall be provided to Billing Company via fax (888-777-8813) or secure electronic communication (as determined by Billing Company). When faxing documentation, Client agrees to include its ChiroSpring customer ID on each page submitted.
16.2. Systems Access. Client grants to Billing Company the right to access and use its practice management software, ChiroSpring, to facilitate the submission of medical claims. Billing Company will be provided a“Billing Company” user account in ChiroSpring for this access. All patient information and data provided by the Client to Billing Company shall be kept confidential and shall only be disclosed to parties necessary to successfully process and submit claims on behalf of Client. Client also agrees to provide Billing Company systems access to any electronic remittance information required to perform the Services. This may require the Client to facilitate additional access to the Client’s insurance clearinghouse information, which Client agrees to provide to Billing Company.
16.3. Client Acknowledgement. Client acknowledges and agrees that Client is ultimately responsible for all claims submitted pursuant to this Agreement. Client shall be responsible for maintaining all original source documents to enable Client to verify and document the claims submitted to third party payors. Billing Company shall have no liability or responsibility whatsoever regarding the accuracy and completeness of the diagnosis, charges, modifiers, medicinal necessity determination, documentation, and any submissions related to the patient care, appropriateness of care, and coding in general. Billing Company shall not be liable for documentation included in SOAP notes and Client services being billed. Client acknowledges that Billing Company will rely on all information provided to Billing Company pursuant to this Agreement and that the timing and amount of net collections generated by the Services is affected by the completeness, timeliness, and accuracy of the information and other variables, some of which are beyond the control of Billing Company.
16.4 Insurance. During the term of this Agreement and for a period of three months thereafter, Client shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Billing Company’s request, Client shall provide Billing Company with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Billing Company as an additional insured. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against Billing Company’s insurer and Billing Company.
17. LIMITATIONS OF WARRANTY AND LIABILITY; INDEMNIFICATION
17.1. No Warranty. All of the Services are provided “as is”, without any warranty whatsoever, whether express or implied, including but not limited to the warranties of merchantability and fitness for a particular purpose.
17.2. Limitation of Liability, Indemnification.
17.2.1. Client agrees to indemnify and hold Billing Company and its owners, directors, employees, agents, and contractors harmless from and against any and all liability, claims, causes of action, damages, fines, assessments, penalties, costs (including reasonable attorneys’ fees and court costs), and responsibility of any kind arising from the performance or non-performance of this Agreement, or any acts or omissions associated therewith. Client shall hold Billing Company and its owners, directors, employees, agents, and contractors harmless from and against any claims submitted on behalf of and in the name of the Client for which Client has provided Billing Company false, fraudulent, incomplete, misleading, or otherwise incorrect information or data, including but not limited to, the coding of claims pursuant to Section 2.1 above.
17.2.2. In no event shall Billing Company be liable to Client or any third party for any loss of use, revenue, profit, data, diminution in value, special, indirect, incidental, punitive, or consequential damages, whether arising under contract, warranty, or tort (including negligence or strict liability) or any other theory of liability, regardless of whether such damage was foreseeable and whether or not Billing Company has been advised of the possibility of such damages.
17.2.3. Client acknowledges that the submission of false, fraudulent, or misleading claims, data, information, or statements to the government or commercial third-party payors in connection with health insurance coding, billing, and claims submission is a crime and can subject the violator to imprisonment and fines.
17.2.4. Client expressly acknowledges and agrees that in no case shall Billing Company’s liability for damages, regardless of the form of the action, exceed the amount of fees paid by Client hereunder during the most recent three (3) month period immediately preceding the event giving rise to the claim. Notwithstanding anything to the contrary contained in this Agreement, Billing Company shall not be liable to Client or any other party for any third-party claims even if Billing Company has been apprised of the likelihood of such liability.
17.2.5. Billing Company shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Billing Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
18.1. Choice of Forum and Law. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the Iowa District Court for Scott County, and any appellate court thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the Iowa District Court for Scott County.
18.2. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements or understandings.
18.3. Notices. All communications or notices permitted or required to be given or served under this Agreement shall be in writing via email or postal U.S. Mail to the addresses set forth on the signature page of this Agreement, and shall be deemed given when received.
18.4. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original hereof, and all of which shall constitute one and the same document. Facsimile signatures on any such counterpart shall be binding as originals.
18.5. Relationship of the Parties. Billing Company and Client have an independent contractor relationship under this Agreement. Nothing in this Agreement shall be construed to create a partnership, joint venture, or other relationship between Billing Company and Client.
18.6 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized representative as of the Signature Date (Effective Date).