IN TOUCH EMR® TERMS AND CONDITIONS
(Last updated – 3-10-15)
This User Agreement (“User Agreement” or “Agreement”) is between In Touch EMR LLC (“In Touch EMR”) a New Jersey Corporation with its principal place of business at 1301 Windsor Suite, Suite 1, Denville, NJ 07834 and the User or entity (“User”) named on one or more Order Forms or Subscription and Services Agreements between User and In Touch EMR. The Order Form(s) together with the User Agreement, including any exhibits attached hereto, constitute the entire Agreement between the parties and apply to each Hosted Program and to all Services provided by In Touch EMR under the Agreement. This Agreement includes all of the Schedules, Exhibits, Attachments, Addenda, our user agreement (“UA”) and any other documents attached hereto and/or referenced herein (including, without limitation, through a hyperlink). They are all incorporated into this Agreement by reference. When executed by the parties, an Order Form shall evidence the subscription for the Hosted Program granted and the In Touch EMR Services to be provided.
Please review this Agreement every time you use In Touch EMR Services since there may be changes and updates from time to time.
DO NOT USE THIS WEBSITE OR ANY IN TOUCH EMR SERVICE OR PRODUCT FOR A MEDICAL EMERGENCY. IF YOU ARE A CONSUMER AND YOU HAVE AN URGENT, IMMEDIATE OR EMERGENCY SITUATION, CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 OR THE LOCAL EMERGENCY NUMBER IMMEDIATELY. IF YOU ARE A PROVIDER AND NEED TO CONTACT A PAYER IN AN EMERGENCY, DO SO DIRECTLY BY TELEPHONE OR OTHER MEANS.
- I. DEFINITIONS
- II. GRANT OF LICENSE
- III. SERVICES
- IV. USER DATA
- V. FEES
- VI. CONFIDENTIALITY
- VII. OWNERSHIP
- VIII. TERM AND TERMINATION
- IX. WARRANTY AND EXCLUSIVE REMEDIES
- X. INDEMNIFICATION
- XI. LIMITATION OF LIABILITY
- XII. DISCLOSURES TO PHYSICIANS/USERS; DISCLAIMERS
- XIII. MISCELLANEOUS
- XIV. EXHIBIT A: END USER LICENSE AGREEMENT
- XV. IN TOUCH EMR USER SUPPORT POLICIES
IN TOUCH EMR BUSINESS ASSOCIATE AGREEMENT
- I. DEFINITIONS
- II. STATED PURPOSES FOR WHICH BUSINESS ASSOCIATE MAY USE OR DISCLOSE PHI
- III. ADDITIONAL PURPOSES FOR WHICH BUSINESS ASSOCIATE MAY USE OR DISCLOSE INFORMATION.
- IV. BUSINESS ASSOCIATE OBLIGATIONS
- V. OBLIGATIONS OF COVERED ENTITY
- VI. TERM AND TERMINATION
- VII. INDEMNIFICATION
- VIII. OTHER PROVISIONS
IN TOUCH EMR TERMS AND CONDITIONS
- “Activation Date” is the date on which User is delivered an authorized user ID and password from In Touch EMR to use the Hosted Programs.
- “In Touch EMR Clearinghouse Partners” include the third-party electronic clearinghouse service providers with which In Touch EMR has a business relationship to provide and resell electronic connectivity to government and commercial insurance payers for standardized healthcare transactions, such as electronic claims processing, electronic remittance advice, and other services.
- “In Touch EMR Services” shall mean Electronic Scheduling and Electronic Medical Records Documentation Services, Hosting Services, Clearinghouse Services, Practice Management Services or other services specifically identified in an Order Form.
- “Host Server” is the server provided by or on behalf of In Touch EMR through which User accesses the Hosted Programs, identified by a URL and one or more user IDs and passwords to be established by User.
- “Hosted Programs” is the computer software in object code form owned or provided by In Touch EMR for which User has subscription rights granted pursuant to the Agreement, updates and upgrades to the Hosted Programs, and online documentation.
- “Transaction Allowance” is the number of monthly transactions that a User can perform for no charge and subject to the other limitations for the applicable subscription plan as set forth in the Order Form(s). Additional transactions beyond the Transaction Allowance or for transactions not included in the User’s subscription shall be invoiced at the rates set forth.
- “Order Form(s)” shall mean the document(s) by which User orders Hosted Program subscriptions and In Touch EMR Clearinghouse Services, and which are agreed to by the parties.
- “Registration Data” means information that is required by In Touch EMR Services and its third party providers to complete the enrollment and registration process.
- “Subscription Fees” are the fees paid by the User for Hosted Programs, In Touch EMR Services and Practice Management Services, as applicable. Subscription Fees are due immediately upon the Activation Date or the execution of the Order Form, whichever comes first, and monthly or annually thereafter as set forth on the Order Form.
- “User Data” means information entered into the Hosted Programs by User in the course of its authorized use of the Hosted Programs and stored on the Host Server for access by the Hosted Programs and retrieval by the User.
II. GRANT OF LICENSE
- Subscription Rights. In consideration of Subscription Fees set forth in any valid Order Form(s), In Touch EMR grants to User a nonexclusive, non-transferable right (“Subscription”) for all end users defined in the Order Forms(s) to use the Hosted Programs as follows: (1) to assign access rights to the Hosted Programs on the Host Server solely for User’s own internal business operations and (2) to use the Documentation provided with the Hosted Programs (online or otherwise) in support of User’s authorized use of the Hosted Programs. There are no third party beneficiaries to this Agreement, meaning that your customers, subsidiaries, affiliates and other third parties do not have any rights against us under this Agreement.
- Restrictions. Except as specifically authorized in the Order Form(s) and subject to this Section 2.2 and the applicable end user or service bureau addendum, User will not allow any third parties to access the Hosted Programs, or use the Hosted Programs for third-party training, commercial time-sharing, rental or service bureau use. Further, User shall not (1) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Hosted Programs or any In Touch EMR Service; (2) authorize the access and use of the Hosted Programs to any third party; (3) use the Hosted Programs for any purpose not expressly permitted herein; (4) decompile, disassemble, or otherwise reverse-engineer the Hosted Programs; (5) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (6) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (7) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (8) interfere with or disrupt the integrity or performance of the Hosted Programs or the data contained therein; or (9) attempt to gain unauthorized access to the Hosted Programs or its related systems or networks.
- Reservation of Rights. As between the parties, In Touch EMR retains all title, copyright, and other proprietary rights in the Hosted Programs. User does not acquire any rights, express or implied, in the Hosted Programs or otherwise, other than those specified in the Agreement. All computer programs, application programs, databases and related information and documentation that are part of the third party services (collectively, the “Third Party Software”) and all information and documentation that constitute the Third Party Software services are and will at all times remain the sole and exclusive property of the Third Party Software provider or the parties for whom the Third Party Software provider is acting as agent or licensee. All title and copyrights belong to the Third Party Software services (including, without limitation, all Third Party Software owned by the Third Party Software provider or the third parties for whom the Third Party Software provider is acting as agent or licensee).
Each of us retains all right, title and interest in and to our respective pre-existing trade secrets, inventions, copyrights and other intellectual property. You assign and agree to assign to us all right title and interest in and to any feedback you voluntarily provide regarding the Services. Any intellectual property developed by us during the performance of the Services shall belong to us unless we have expressly agreed with you in advance in writing.
- Audit. In Touch EMR or its agents shall have the right to monitor use of the Hosted Programs by User: (1) electronically at any time; or (2) by on-site audit of User’s use of the Hosted Programs, not more than once per year upon reasonable notice to User, and to charge for additional Users as appropriate under the Agreement.
- License to AMA Editorial Content.
- Grant of License. Pursuant to a CPT Distribution License Agreement between In Touch EMR Clearinghouse Partners and the American Medical Association (AMA), In Touch EMR hereby grants to User a limited, non-exclusive, non-transferable, sublicense to access and use within the United States, the AMA Editorial Content, for the sole purposes of its internal business use. Each sublicense is limited to one end user associated with User’s account as set forth in the Order Form. This sublicense applies only to the use of Hosted Programs that include assess to the master database of AMA Current Procedural Terminology Codes in electronic form (“CPT”). CPT is copyrighted by the American Medical Association, and CPT is a registered trademark of the American Medical Association.
- Restrictions. User is prohibited from publishing, distributing via the Internet or other public computer based information system, creating derivative works (including translating), transferring, selling, leasing, licensing or otherwise making available to any unauthorized party the CPT, or a copy or portion thereof. User agrees to take all necessary steps to ensure that anyone who has authorized access to the Hosted Programs complies with the provisions of this Agreement and with respect to the service bureau provisions, if applicable, that it has authority to bind any legal entity that is to receive the CPT.
- AMA Disclaimer of Warranties and Liabilities. CPT is provided “as is” without warranty of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. AMA warrants that due to the nature of CPT, it does not manipulate or process dates, therefore there is no Year 2000 issue with CPT. AMA disclaims responsibility for any errors in CPT that may arise as a result of CPT being used in conjunction with any software and/or hardware system that is not Year 2000 compliant. No fee schedules, basic unit, relative values or related listings are included in CPT. The AMA does not directly or indirectly practice medicine or dispense medical services. The AMA disclaims responsibility for any consequences or liability attributable to or related to any use, non-use, or interpretation of information contained or not contained in this file/product. This Agreement will terminate upon notice for any violation of its terms of if the AMA no longer makes the CPT available. The AMA is a third party beneficiary to this Agreement. The scope of this license is determined by the AMA, the copyright holder. Any questions pertaining to the license or use of the CPT must be addressed to the AMA. IN TOUCH EMR DISCLAIMS RESPONSIBILITY FOR ANY LIABILITY ATTRIBUTABLE TO USER’S USE OF THE CPT. IN TOUCH EMR WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL CONTAINED THEREIN. In no event shall In Touch EMR be liable for direct, indirect, special, incidental, or consequential damages arising out of the use of such information or material.
- U.S. Government Rights. This product includes CPT which is commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois, 60654. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
- Hosted Programs. In Touch EMR will provide Client with access to the online Hosted Programs selected in the Order Form(s) and will provide for the storage and retrieval of User Data in connection with use of the Hosted Programs. User is responsible for obtaining access to the Internet using appropriate software and hardware, including ensuring proper security of User’s systems and access to the Hosted Programs.
- Access. User may designate user IDs and passwords for the number of end users stated in the Order Form(s). Upon In Touch EMR’s request, User will provide In Touch EMR with accurate and complete registration information of end users associated with User who have access to the Hosted Programs and In Touch EMR Services.
- User Obligations and Responsibilities. User is responsible and liable for all activity occurring under its accounts, whether or not such activities have been authorized by User, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Hosted Programs, including those related to data privacy, international communications and the transmission of technical or personal data. User shall: (i) notify In Touch EMR immediately of any unauthorized use of any password or user ID or any other known breach of security, including the loss of theft of any password or user ID; (ii) restrict access and use of the Hosted Programs by unauthorized users; and (iii) not impersonate another In Touch EMR user or provide false identity information to gain access to or use the Hosted Programs.You also agree to follow the procedures used to verify that only your authorized employees and designated agents have access to the facilities, equipment and software systems providing the Services. We rely on the information you provide us. You agree to provide us with accurate information, and to update that information as it changes. The initial information we require is set out on your Service Description. You may update it by sending an email to email@example.comYou must cooperate with our reasonable investigation of Service outages, security problems, and/or any suspected breach of this Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date using the processes we provide.
- Payment for Services. User will pay In Touch EMR the fees and charges set forth in the Order Form as determined by the number of providers and the type of such providers. All monthly charges are due via bank transfers auto payment or credit card auto payment. Acceptance of this Order Form by the User authorizes In Touch EMR to charge the bank account / credit card of the User on a monthly / annual basis for Services rendered as well as for an initial setup cost if applicable. If a credit card charge or a bank transfer is attempted and does not go through, the User will have three (3) calendar days to resolve the situation. If the situation is not resolved in three (3) calendar days, User agrees and understands that a $50 transaction failure fee will be charged to the User’s account and service will be terminated following ten (10) business days of non-payment. Service may be re-activated by User within sixty (60) calendar days of termination with a payment of all due funds. All payments will be made in U.S. dollars and are non-refundable. User will pay In Touch EMR all costs and expenses, including reasonable attorney’s fees, incurred by In Touch EMR in enforcing any of the terms, conditions and provisions in this Agreement, including any of In Touch EMR rights and remedies set forth in this Agreement.
You have the right to reasonably dispute any items on an invoice with appropriate back-up documentation, and in the event of such a dispute the Parties shall use good faith efforts to expeditiously resolve all disputes but in no case more than sixty days following our receipt of information sufficient to evaluate the dispute. In cases in which an invoice contains disputed and undisputed items, you agree to pay the undisputed items in a timely manner in accordance with the terms of this Agreement regardless of the dispute. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate. In the event you are overdue, you will not be entitled to any promotions or other considerations.
7.2 Other than taxes on our net income, you are solely and entirely responsible for all taxes, fees and charges of any local, state, federal or foreign taxing authority applied to the delivery or receipt of Services, and you shall pay such amounts, unless you provide In Touch EMR with satisfactory evidence of your exemption from the tax.
- In Touch EMR User Support Services. In the event that a User elects to receive support services related to the Hosted Programs from In Touch EMR by requesting such services in the Order Form(s), then In Touch EMR agrees to provide support to the authorized User’s representative for contacting support and in accordance with In Touch EMR’s support polices then in effect, so long as User is currently entitled to use the Hosted Programs and In Touch EMR Services.
- In Touch EMR Clearinghouse Services. In connection with use of the Hosted Programs, In Touch EMR in partnership with HealthFusion may provide certain Clearinghouse Services to User, as set forth in the applicable Order Form(s), in conjunction with one or more Clearinghouse Partners, and User hereby waives any and all liability and claims which User may have against In Touch EMR or the Clearinghouse Partner in connection with the provision of In Touch EMR Services except to the extent directly caused by the willful misconduct or gross negligence of In Touch EMR or the In Touch EMR Clearinghouse Partner. Such Clearinghouse Services are subject to availability via In Touch EMR Clearinghouse Partners. Independently-levied submission charges from payors are not included in the pricing and will be charged separately as set forth in Section 5 (Fees). Approval for electronic submission to and remittance from most non-commercial payors can take 4-8 weeks from the date User returns completed forms to In Touch EMR. If elected by a User, In Touch EMR will provide electronic clearinghouse services through HealthFusion and associated Clearinghouse Partners subject to the applicable terms and fees as set forth herein.
- Electronic Claims Submission. Electronic claims submission service includes sending electronic claims in the ANSI 837 format to In Touch EMR’s Clearinghouse Partners. In Touch EMR shall charge User a fee for each electronic claim transaction based upon the subscription plan to which each User is subscribed
- Electronic Remittance Advice. Electronic remittance advice service includes receiving electronic remittance advice messages from In Touch EMR’s Clearinghouse Partners in the ANSI 835 format. In Touch EMR shall charge User a fee for each electronic remittance transaction based upon the Subscription Edition to which each end user is subscribed. In the event that User desires to discontinue electronic remittance services, then User must contact insurance companies directly to request termination.
- Electronic Real-Time Insurance Eligibility Services. Electronic real-time insurance eligibility services include performing electronic verification of insurance benefits from In Touch EMR’s Clearinghouse Partners in the ANSI 270/271 format.
- Onsite Training. Onsite training, if available, is billed on a daily rate. A ‘day’ is defined as an 8-hour standard business day. Any training in a day beyond 8 hours shall be bill at time and a half. Travel and travel related expenses are billed separately, as incurred by In Touch EMR. User is responsible for all non-refundable costs and expenses for any services cancelled or rescheduled with less than 6 business days prior notice to the start of the services.
- User Data Storage. In Touch EMR provides User with a certain amount of monthly electronic storage as set forth in the Order Form. In the event User exceeds this amount, User shall be charged the amounts set forth in the Order Form for such overage. In Touch EMR will use reasonable efforts to notify User regarding such storage use, however, any failure by In Touch EMR to notify User shall not affect User’s responsibility to monitor their own use of such storage and for any additional storage charges.
- Additional Data Services. In the event User requests, subject to In Touch EMR’s availability, to perform other services with respect to User Data, including, but not limited to, reformatting or modifying the format of User Data, modify, develop or otherwise alter a User Data interface, or otherwise preparing and providing User with copies of User Data, User shall pay In Touch EMR’s fees for such additional data services.
- User Account. In order to use the Hosted Programs and In Touch EMR Services, and in order for the In Touch EMR Services to operate properly, Users must supply In Touch EMR with certain “Registration Data”, all of which must be accurate and updated as appropriate. Failure to properly maintain the Registration Data shall be a breach of the Agreement. User should ensure that it can receive e-mail from In Touch EMR, which may require User to add In Touch EMR to a “trusted” sender list to avoid delays or having In Touch EMR correspondences blocked from User’s inbox.
- Cooperation. In Touch EMR’s ability to provide In Touch EMR Services is dependent upon User’s cooperation and ability to perform its obligations. Should User fail to perform any obligation or approve any request from In Touch EMR, In Touch EMR shall be relieved from any liability resulting there from and any delivery dates shall be reset accordingly.
- Expiration of Purchased Services. All In Touch EMR Service(s) must be utilized by User within ninety (90) days from date of purchase (the Effective Date of the Order Form). Hosted In Touch EMR Services not utilized in that period will be considered rendered and non-refundable.
IV. USER DATA
- User Data Warranty. User represents and warrants that it has the rights to all User Data, including the right to upload User Data to the Host Server in connection with its authorized use of the Hosted Programs. User agrees that the User Data and its use do not infringe the rights of any third party or violate any applicable laws and agrees to indemnify and holds In Touch EMR harmless from any third-party claims of infringement or violation of laws under the same terms and conditions set forth below for In Touch EMR’s infringement indemnity. User is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.
- User Data Security. User agrees to access the Hosted Programs and to store and retrieve data using third party programs, including specifically Internet “browser” programs that support appropriate data security protocols. Unless otherwise agreed in writing, the parties agree that all software used to access the Hosted Programs will support the Secure Socket Layer (SSL) protocol. In Touch EMR agrees to maintain the security of User Data using industry-standard data security protocols, and other methods reasonably deemed to be adequate for secure business data and to notify User in the event of a breach of security involving User Data. In Touch EMR agrees to retain User data on a secure server and to maintain data recovery and data backup facilities in accordance with accepted industry practices.
Maintaining data integrity and security is a shared responsibility between In Touch EMR and you. It is our responsibility to comply with HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and their respective implementing regulations, including the Privacy Standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.P.R. parts 160 and 164, subparts A and E (the “Privacy Rule”), the Security Standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.P.R. parts 160, 162 and 164, subpart C (the “Security Rule”), the Breach Notification Standards adopted by the U.S. Department of Health and Human Services, as they may be amended from time to time, at 45
C.P.R. part 164, subpart D (the “Breach Notification Rule”), as well as related state laws and/or regulations (collectively, the “HIPAA Rules”).
6.2 We are not responsible to you or any third party for unauthorized access to your data or the unauthorized use of the Services as a result of your intentional or unintentional error, omission, or failure to adhere to the HIPAA Rules. You are responsible for the use of the Services by any employee of yours, any person you authorize to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
- Ownership of User Data. User shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all User Data. User acknowledges and agrees that In Touch EMR shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. In Touch EMR is not responsible for inability to perform services due to improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. User agrees that storage or caching of User Data is not an infringement of any User intellectual property rights or otherwise violates any applicable laws. User agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. Provided that In Touch EMR 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), User acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that In Touch EMR may use such de-identified information for any lawful purpose.
- User Data Import Limitations. User is responsible for providing User Data in an acceptable format as specified by In Touch EMR. User acknowledges that transferring data is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. In Touch EMR shall not be liable for any errors, losses or damages incurred in connection with the import of User Data, including any losses or damages arising from loss of User Data. User is responsible to adopt reasonable measures to limit the impact of such problems. User shall maintain an accurate backup copy of all data provided to In Touch EMR.
- User Data Import Acceptance. Following User Data import, In Touch EMR warrants the integrity of the supplied production database for a period of five (5) business days from the delivery date, or until the database is altered in any way by User, which ever occurs first. During the User Data import warranty period, User may report any discrepancies or errors, and upon verification of the error, In Touch EMR may, at its option, correct the database or refund the amount paid for the User Data import service.
- User Data Export Acceptance. Users may export their data. The format and methods for the Data export will be determined by In Touch EMR and In Touch EMR is not responsible to provide the data in a format determined by the User.
- User Data Storage Limitations.Users clearly understand and agree that each User id is allocated up to 1 GB of storage space on the Host Server with a limitation of up to 5 GB per practice. Any additional storage space on the Host Server will have to purchased from In Touch EMR for an additional cost.
- Fees. User agrees to pay to In Touch EMR the fees described and in the amount set forth in the applicable Order Form(s) and as set forth in Section 3.4 (In Touch EMR Clearinghouse Services). Notwithstanding anything to the contrary in the Agreement, all fees are subject to change by In Touch EMR, with thirty (30) days written notice and with In Touch EMR’s sole discretion.
- Payment Terms. All invoices are due and payable immediately upon receipt by User. In the absence of specific provisions in the applicable Order Form(s), fees for one-time services are due upon acceptance of any Order Form and prior to delivery of the applicable service. Fees that are fixed, such as Subscription Fees, shall be payable in advance and due in full upon the first day of each subscription term; all other services that are variable and dependent on actual usage are billed in arrears and due upon receipt.
- Suspension of In Touch EMR Services/Denied Access. In addition to any other rights granted to In Touch EMR herein, In Touch EMR reserves the right to suspend or terminate this Agreement and User’s access to the Hosted Programs and/or In Touch EMR Services if In Touch EMR does not receive full payment by User within ten (10) days of the invoice date. Delinquent accounts are subject to an administrative late charge of $50.00 per invoice per month for any invoice not paid by the due date and which remains unpaid each 30 days thereafter, including any electronic transaction that is declined and any returned checks. Additionally, any amounts payable by User hereunder which remain unpaid after the due date shall be subject to a finance charge equal to 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, and such interest shall begin to accrue after fifteen (15) days from the invoice date. User will be charged for any Subscription Fees during any period of suspension. In the event that In Touch EMR does not receive full payment by User within thirty (30) days of the date a payment is due, such nonpayment by User shall constitute a material breach of this Agreement. If either party initiates termination of this Agreement, User will be obligated to pay the balance due on its account computed in accordance with the terms of this Agreement.
- Billing Information. User agrees to provide In Touch EMR with complete and accurate billing and contact information. This information includes User’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. User agrees to promptly update this information, but in no event later than five (5) days, of any change to it. If User has a good faith belief that any charges are in error, then User must contact In Touch EMR in writing within thirty (30) days of the disputed invoice’ date to be eligible to receive an adjustment or credit. User agrees not to withhold payment on any invoice while In Touch EMR reviews its request for an adjustment or credit. In the event that In Touch EMR issues an adjustment or credit that exceeds the current balance on User’s account, then In Touch EMR agrees to refund the difference to User within thirty (30) days.
- Electronic Payments. User agrees to provide In Touch EMR with updated payment information (credit card or bank electronic funds transfer) and expressly authorizes In Touch EMR to charge User’s mode of payment each month for an amount equal to User’s current balance. In the event that either (1) User’s credit card information changes, (2) User’s credit card information becomes expired, or (3) User is notified by In Touch EMR of an unsuccessful attempt by In Touch EMR to charge User’s credit card information for User’s invoice total, then User agrees to update its account with valid credit card information as soon as possible, but in no event later than five (5) days. If, any time, User revokes its credit card authorization or bank electronic funds transfer authorization, then such revocation shall be considered a material breach of this Agreement.
- Taxes. In Touch EMR’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on In Touch EMR’s income. If In Touch EMR is found to be responsible for the withholding and payment of taxes on your behalf, you agree to indemnify In Touch EMR with respect to the full amount of taxes due together with applicable interest and penalties.
- Account Reactivation. Accounts that are cancelled and then require reactivation are subject to a reactivation fee.
- Defined. By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the Programs, the terms and pricing under the Agreement, and all information clearly identified as confidential. Notwithstanding, In Touch EMR’s Confidential Information includes all information obtained by accessing the Hosted Programs or by using the In Touch EMR Services, including, without limitation, In Touch EMR template builder technology, In Touch EMR integrated billing pathway, and patient referral generation mechanisms, all of which constitutes the copyrighted work of In Touch EMR or its licensors.
- Exceptions. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by contemporaneous written documentation.
- Obligations. Except as may otherwise be required by law, during the term of, and for a period of 2 years after the expiration or termination of this Agreement, neither party shall disclose the other party’s Confidential Information to any person other than those authorized with a need-to-know or use the Confidential Information for any purpose other than for the purpose for which it is intended. Each party will use at least the same effort used to protect its own confidential information (but not less than reasonable care) to prevent the unauthorized disclosure of the other party’s Confidential Information.
- Return of Confidential Information. Upon expiration or termination of this Agreement each party shall certify the return or destruction of the other party’s Confidential Information.
- Required Disclosure. The parties agree to hold each other’s Confidential Information in confidence during the term of the Agreement and for a period of two years after termination of the Agreement. In the event that either party is requested or required for the purposes of legal, administrative, or arbitration to disclose any Confidential Information, the party receiving such disclosure request will provide the other party with prompt written notice of any such request or requirement, unless prohibited by law, so that such party may seek an appropriate protective order or other relief.
- Patient Records. The parties agree to be bound by the terms of this user agreement. Furthermore, In Touch EMR shall only disclose to and/or allow any entity or person to have access to User and User’s client and/or patient Protected Health Information, as defined in the Business Associate Agreement (BAA), attached hereto as Exhibit A, who have a need-to-know such information for the purposes of fulfilling the obligations of this Agreement and are in compliance with the BAA.
- Compliance with Applicable Privacy and Security Rules. In Touch EMR uses all reasonable efforts to enable its technology and services to meet applicable privacy and security HIPAA and HITECH Act requirements. Accordingly, In Touch EMR will enter into a Business Associate agreement with the User as supplement to this agreement.
- General. The Hosted Programs, In Touch EMR Services, graphics, images, content, compilation, digital conversion, databases, clinical protocols and pathways used with the In Touch EMR template builder technology, In Touch EMR integrated billing pathway, and patient referral generation mechanisms or any other aspect of the system and all information provided in connection with the Hosted Programs and In Touch EMR Services and other matters related to In Touch EMR (other than User Data) and any modifications, updates, copies, customizations, derivative works, augmentations, or translations thereto, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other party relating to the Hosted Programs or In Touch EMR Service are protected by applicable patent, copyright, trademark, trade secret and other laws protecting the proprietary rights of In Touch EMR, its licensors and In Touch EMR Clearinghouse Partners. Your right to access In Touch EMR and to make use of the Hosted Programs and In Touch EMR Services constitutes a license only, and all content on In Touch EMR and copies of such content (other than User Data) remain in the sole possession and ownership of In Touch EMR, its licensors and In Touch EMR Clearinghouse Partners. You do not acquire any ownership interest in, or right to possess, the Hosted System, and you have no right of physical access to the Hosted System.During the term of this Agreement, we may, without your prior consent, modify or delete any of the features of the Services provided that such modifications or deletions are based on reasonable commercial factors with the intent of improving the Services and that such modifications or deletions do not have a material adverse impact on the Services. We may, without your consent, substitute old features with new features that have similar or improved functionality or as necessary to meet any applicable legal, regulatory or industry-standard requirements or demands.
- Trademarks. In Touch EMR and the symbols used to identify In Touch EMR are trademarks of In Touch EMR. All third party trademarks, service marks, trade names or other identifying information used by In Touch EMR remain the sole and exclusive property of the applicable third parties. Except for linking to In Touch EMR web sites, User may not use any In Touch EMR logo or trademark, whether or not such mark(s) are registered, without prior written approval from In Touch EMR. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the In Touch EMR name (or any derivative thereof) in User’s URL, business name, or the names of any add-on products or services User may be offering independent of In Touch EMR is strictly prohibited. Additionally, using the In Touch EMR name in paid targeted keyword advertising campaigns on search engines is also prohibited.
- Copyright. This Website and all content provided by In Touch EMR, unless otherwise stated, is the property of In Touch EMR, its licensors and In Touch EMR Clearinghouse Partners. All rights are reserved and unauthorized copying of In Touch EMR is a violation of US copyright law. Any copying, transmission or other publication or other unauthorized use of the contents of this Website is strictly prohibited.
VIII. TERM AND TERMINATION
- Term. The term of this Agreement shall commence on the execution of the applicable Order Form(s) shall remain in effect for the Initial Term set forth in such Order Form(s). Thereafter, the Agreement is automatically renewed for successive one (1) year terms at then-current prices, unless either party provides written notice of non-renewal at least 90 days prior the expiration of the then current term. The initial term and any renewal term will be collectively referred to as the “term” of the Agreement.
- If selected, User may enroll in a monthly plan, in which case the initial term shall extend for an initial period of three (3) months. Thereafter, the Agreement is automatically renewed for successive one (1) month terms, unless either party terminates this agreement prior to the end of the then current term. The initial term and any renewal term will be collectively referred to as the “term” of the Agreement.
- Termination for Cause. Notwithstanding Section 5.3 (Suspension of In Touch EMR Services/Denied Access), either party may terminate the Agreement at any time upon thirty (30) days prior written notice if the other party commits a material breach that remains uncured after thirty (30) days written notice specifying the nature of the breach and identifying the measures required to correct the breach.
- Effect of Termination. Termination of the Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve User’s obligation to pay all fees that have accrued or are otherwise owed by User under any Order Form or under the Agreement. Upon termination of the Agreement, access to the Hosted Programs and all In Touch EMR Services shall be terminated. Upon termination, other than for breach on the part of In Touch EMR under Section VIII.2 above, all unpaid fees related to the term shall be due and payable in full immediately.If you terminate this Agreement for convenience, or we terminate this Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the total monthly recurring fees for the remaining portion of the then-current term of all open Service Descriptions
- Term. The term of this Agreement shall commence on the execution of the applicable Order Form(s) shall remain in effect for the Initial Term set forth in such Order Form(s). Thereafter, the Agreement is automatically renewed for successive one (1) year terms at then-current prices, unless either party provides written notice of non-renewal at least 90 days prior the expiration of the then current term. The initial term and any renewal term will be collectively referred to as the “term” of the Agreement.
IX. WARRANTY AND EXCLUSIVE REMEDIES
- User Licensure. User represents and warrants that User and all end users who are provided access to the Hosted Programs and/or In Touch EMR Services are licensed pursuant to all applicable federal, state and local laws, ordinances, rules and regulations, and shall upon request provide proof of all licenses.
- Hosted Program Warranty. In Touch EMR warrants that the Hosted Programs will materially perform in accordance with the documentation so long as (1) the User has a current, paid-up right to use the Hosted Programs; and (2) User’s access to the Host Server will meet the minimum criteria set forth in In Touch EMR’s documentation.
- In Touch EMR Services Warranty. In Touch EMR warrants that the In Touch EMR Services as set forth in the applicable Order Form(s) will be performed consistent with generally accepted industry standards.
- User acknowledges and agrees that it has sole responsibility to determine the accuracy of the data and reports prior to its use. EXCEPT AS SET FORTH IN SECTIONS IX.2 ABOVE (HOSTED PROGRAM WARRANTY) AND IX.3 ABOVE (IN TOUCH EMR SERVICES WARRANTY), IN TOUCH EMR DOES NOT WARRANT OR REPRESENT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE HOSTED PROGRAMS OR USE OF THE IN TOUCH EMR SERVICES SHALL MEET USER’S REQUIREMENTS OR THAT USER’S USE OF THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE OR IMMUNE FROM FRAUDULENT INTRUSION AND/OR UNAUTHORIZED USE OR DISCLOSURE. IN TOUCH EMR ASSUMES NO RESPONSIBILITY FOR ASSURING THE PROPER AND LAWFUL USE THEREOF BY USER. IN TOUCH EMR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT IN CONNECTION WITH THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES, AND ANY SUCH WARRANTIES ARE DISCLAIMED.
- IN TOUCH EMR ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE, OR TO STORE PROPERLY, DELIVER, FAILURE TO DELIVER OR TIMELY DELIVERY OF USER DATA. USER ASSUMES THE ENTIRE RISK IN DOWNLOADING OR OTHERWISE ACCESSING ANY DATA, FILES OR OTHER MATERIALS OBTAINED FROM THIRD PARTIES AS A PART OF THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES.
- HOSTED PROGRAMS OR IN TOUCH EMR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IN TOUCH EMR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA.
- IN TOUCH EMR DOES NOT GUARANTEE THAT THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES SHALL IN ALL CASES MEET USER’S REQUIREMENTS, AND IN TOUCH EMR LIKEWISE DISCLAIMS ANY WARRANTY THAT THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES SHALL SUCCESSFULLY ACCOMPLISH THE SPECIFIC OBJECTIVES DESIRED BY USER. ANY SERVICES THAT WE ARE NOT CONTRACTUALLY OBLIGATED TO PROVIDE, BUT THAT WE MAY PERFORM FOR YOU AT YOUR REQUEST AND WITHOUT ANY ADDITIONAL CHARGE, ARE PROVIDED ON AN AS-IS BASIS.
- Exclusive Remedies. For any breach of the warranties contained in Sections IX.2 (Hosted Program Warranty) and IX.3 (In Touch EMR Services Warranty), User’s exclusive remedy, and In Touch EMR’s entire liability, shall be the correction of the Hosted Program errors or re-performance of the In Touch EMR Services. User shall notify In Touch EMR within thirty (30) days of discovery of any error or from performance of the applicable In Touch EMR Service or such claim shall be deemed waived by User.
- Disabling Mechanisms. You acknowledge and agree that the Hosted Programs and In Touch EMR Services may have a mechanism whereby In Touch EMR can disable the service. User acknowledges and agrees that In Touch EMR may use any such mechanism in the event of User’s breach of this Agreement.
By using the Hosted Programs or In Touch EMR Services, including use of the In Touch EMR Clearinghouse Services, User expressly authorizes and directs In Touch EMR to carry out such transaction or performance on User’s behalf. Additionally, User represents and agrees that it has obtained all authorizations required by applicable law or otherwise to allow In Touch EMR to carry out such transaction or performance. User shall indemnify, defend and hold In Touch EMR harmless from and against any liability and for all damages, costs and expenses, including all reasonable attorney costs and expenses, incurred by In Touch EMR in taking such actions at User’s direction or request. User shall indemnify, defend and hold In Touch EMR harmless from and against any legal action related to HIPAA compliance breaches. Additionally, User shall indemnify, defend and hold In Touch EMR harmless from and against any third party claim and any related cost or expense, including reasonable attorney costs and expenses, arising out of or related to any breach of this Agreement.
Your obligations under this subparagraph include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.
XI. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, RELIANCE, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, REJECTED OR DENIED CLAIMS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY RELATED TO THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE HOSTED PROGRAMS OR IN TOUCH EMR SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSOR’S HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN TOUCH EMR SHALL NOT BE LIABLE TO CUSTOMER, OR ANY OTHER PARTY (A “PERSON”) FOR ANY CLAIMS AND DAMAGES FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, LOSS OF PRODUCTION, LOSS OF PROFITS, LOSS OF MARKETS, ECONOMIC LOSS, LOSS OF GOOD WILL, EXEMPLARY LOSS, ANTICIPATED OR OTHERWISE), THAT MAY BE SUFFERED OR INCURRED BY CUSTOMER OR ANY PERSON, IN ANY WAY DIRECTLY OR INDIRECTLY CONNECTED WITH, ARISING OUT OF OR RESULTING FROM ANY MATTER PERTAINING TO THE USE OF THE SOFTWARE. THE USER AGREES TO RELEASE IN TOUCH EMR FROM AND AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS IN TOUCH EMR, FROM AND AGAINST CLAIMS, ACTIONS, SUITS, DEMANDS, PROCEEDINGS (COLLECTIVELY “CLAIMS”), AND DAMAGES LIABILITIES, OBLIGATIONS, COSTS, OR EXPENSES, INCLUDING WITHOUT LIMITATION, REASONABLE LEGAL FEES (COLLECTIVELY “DAMAGES”), IN ANY WAY DIRECTLY OR INDIRECTLY CONNECTED WITH, ARISING OUT OF OR RESULTING FROM THE PRODUCT OR SERVICES PROVIDED BY IN TOUCH EMR, EXCEPT TO THE EXTENT SUCH CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF IN TOUCH EMR. IN NO EVENT SHALL IN TOUCH EMR’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN THE EVENT OF ANY UNPLANNED OUTAGE OR DOWNTIME, THE CLINIC IS RESPONSIBLE FOR THEIR OWN DOWNTIME POLICIES AND PROCEDURES. IT IS RECOMMENDED THAT THE CLIENT USE A MANUAL PROCESS OF DOCUMENTATION, INCLUDING BUT NOT LIMITED TO PAPER DOCUMENTATION, SCANNING IN DOCUMENTS AND ANY OTHER COMMERCIALLY REASONABLE OPTIONS, UNTIL CONNECTIVITY IS RESTORED.
XII. DISCLOSURES TO CLINICIANS/USERS; DISCLAIMERS
- No Verification of Third Parties. In Touch EMR does not validate, error check or otherwise confirm any data or information, including User Data. In Touch EMR acts as a neutral intermediary between Users and In Touch EMR Clearinghouse Partners and payors. Users shall maintain all necessary supporting documentation, including medical records, for verification of all facts and information posted by User or on User’s behalf, and shall provide such documentation to In Touch EMR upon its reasonable request. In Touch EMR does not make any representations or warranties regarding information, Personal Information or data transmitted by Users or In Touch EMR Clearinghouse Partners. All such warranties and representations are made directly by the person posting the information to the intended recipient of the information. In Touch EMR does not accredit or otherwise determine the qualifications of payors or providers. Further, In Touch EMR is not responsible for any damages or legal actions resulting from User/s breaking or otherwise breaching HIPAA compliance and federal regulations while using In Touch EMR software.
- Force Majeure. In Touch EMR shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Hosted Programs or In Touch EMR Services for the time and to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, any act of God, labor dispute or disturbance, material shortage or rationing, fire, storm, tornado, tidal wave, vandalism, riot, explosion, power outage earthquake, flood, civil disturbance, sabotage, act of war, act of terrorism, governmental action or regulation, communication or utility failure or casualty caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, or storm (collectively “Force Majeure Items”).
- Independent Contractors. The relationship between In Touch EMR, User and any third party is that of independent contractors. Nothing in this Agreement shall be construed or deemed to create any other relationship, including that of joint venture, partnership, or in an employment or agency relationship.
- Construction. In the event of a dispute hereunder, this Agreement shall be interpreted in accordance with its fair meaning and shall not be interpreted for or against any party hereto on the ground that such party drafted or caused to be drafted this Agreement or any part hereof, nor shall any presumption or burden of proof or persuasion be implied by virtue of the fact that this Agreement may have been prepared by or at the request of a particular party or its counsel. Article and Section headings are for convenience only and shall not affect the interpretation of this Agreement.
- Notice. Any notice or other document to be given or to be served upon In Touch EMR in connection with this Agreement shall be in writing to 1301 Windsor Court, Suite 1, Denville, NJ 07834. All such Notices will be deemed effective upon delivery or three days after mailing by certified mail. Any notice or other document to be given or to be served upon you shall be sent to your last known address. Any party may, at any time by giving five (5) days prior written notice to the other party, designate any other address in substitution of the address stated above to which such notice will be given. It is your responsibility to notify In Touch EMR of any change of your address.
- Choice of Law; Jurisdiction; Service of Process. The parties acknowledge that this Agreement shall be construed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law provisions thereof. The Parties hereby irrevocably consent to the jurisdiction of the state and federal courts located in Morris county, New Jersey, in any action arising out of or relating to this Agreement and waive any other venue to which either party might be entitled. The parties further agree to accept and acknowledge service of any and all process which may be served in any suit, action or proceeding, and agree that service of process upon each other mailed by certified mail to each other’s address shall be deemed in every respect effective service of process in any such suit, action or proceeding.
- Dispute Resolution. Any controversy, transaction or dispute arising out of or relating to this Agreement shall be settled in the following order of preference: (1) By good faith negotiation between representatives of the parties who have authority to fully and finally resolve the dispute; (2) If necessary, by non-binding mediation at a location acceptable to both parties in Morris County, New Jersey using a neutral mediator. In any mediation, the Parties shall equally share the cost of the mediator and otherwise bear their own respective costs; or (3) As a last resort only, by binding arbitration in Morris County, New Jersey. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, with the following exceptions if in conflict: (a) one arbitrator shall be chosen by the American Arbitration Association; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, transactions or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- Export Controls and Restricted Rights. This agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the In Touch EMR Services, Hosted Programs, content, In Touch EMR intellectual property or information about such In Touch EMR Services, Hosted Programs, which may be imposed from time to time by the government of the United States of America. User shall not export the service including, without limitation, content, In Touch EMR intellectual property or confidential information, and information about the In Touch EMR services and hosted programs without the written consent of In Touch EMR and compliance with such laws, regulations, orders or other restrictions. The Hosted Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to In Touch EMR. If the Hosted Programs and accompanying documentation 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 the Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.
- Non-solicitation. User agrees during the term of this Agreement, and for twelve (12) months thereafter, not to solicit for hire or hire as a consultant, employee, or otherwise any current or former employee of In Touch EMR who had involvement with the performance of the Agreement.
- Assignment. User may not assign this Agreement or any right or obligation hereunder, directly, indirectly, by operation of law or otherwise, without User’s prior written consent, and any attempt to do so will be void and of no force or effect. Any change of control of User will be considered an assignment. This Agreement is freely assignable and/or transferable by In Touch EMR without the consent of User. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
- Publicity. The parties agree that In Touch EMR has the right to use User’s name as a In Touch EMR customer in In Touch EMR’s promotional, advertising and marketing materials and campaigns.
- Severability. Each provision of this Agreement is intended to be severable from each other provision, and the validity or illegality of any portion hereof shall not affect the validity or legality of the remainder hereof.
- Survival. The provisions of Sections 5 (Fees), 6 (Confidentiality), 7 (Ownership), 11 (Limitation of Liability) and 13 (Miscellaneous), and any payment obligations of either party shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement. Except for actions for nonpayment, or User’s breach of Sections 6 (Confidentiality) or 7 (Ownership), no action, regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of action has accrued.
- Entire Agreement. The Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement. In Touch EMR may assign this Agreement or any rights or obligations under this Agreement to a third party. In Touch EMR may modify the terms of this Agreement at any time by posting new terms to its web site. User may notify In Touch EMR in writing within thirty (30) days of such change that User does not wish to accept the new terms. In the absence of such written non-acceptance notification with the thirty (30) day period, User confirms acceptance of the new terms by continuing to use the Hosted Programs and/or In Touch EMR Services. If User does not accept the new terms by notifying In Touch EMR within the thirty (30) day period, then User may continue to use the Hosted Programs and In Touch EMR Services under User’s existing terms until the end of User’s then current term, at which time User’s Agreement will not automatically renew, but will instead terminate.
XIV. EXHIBIT A END USER LICENSE AGREEMENT
This End-User License Agreement (“EULA”) has been agreed to by all end users prior to use of the Services (as defined below) and is embedded in the opening screen with a “click, I ACCEPT” feature or functional equivalent. This EULA is between In Touch EMR, User (You) and the applicable end user. This EULA is a binding legal contract between you as the end user and In Touch EMR. By signing the order form provided by In Touch EMR, by signing this Agreement, or clicking on “I ACCEPT” or equivalent language, you are bound by the terms of this EULA and agree to comply with this EULA. If you do not agree to the terms of this EULA, In Touch EMR will not license any right to use or access any Service to you. In such event, you may not download, install, access, use or copy any Service, and you should promptly contact your provider for instructions with respect to a refund of fees paid by you, if any. As used in this EULA, the term “Service” means any In Touch EMR software or services rightfully provided, or rightfully made available, to you by In Touch EMR or an authorized user (“User”) under the terms of a valid User Agreement between In Touch EMR and User (“User Agreement”), including any or all associated web sites, media, printed materials and any “on-line” or electronic documentation.
XV. IN TOUCH EMR USER SUPPORT POLICIES
HOW TO CONTACT IN TOUCH EMR
If you have any issues that require support from In Touch EMR you may contact us using any of the methods below:
- Email. Users may submit support questions to firstname.lastname@example.org 24 hours a day.
- Phone: During the standard hours of operation, a designated User may call (800) 421-8442 to reach an In Touch EMR Representative.
BUSINESS ASSOCIATE AGREEMENT
Whereas, User referred herein as “Covered Entity” and In Touch EMR LLC together with their designees, employees, associates, affiliates, successors, and assigns “Business Associate”, intend to protect the privacy and provide for the security of certain Protected Health Information (PHI) to which Business Associate may have access in order to provide goods or services to or on behalf of Covered Entity under the “Underlying Agreement”.
WHEREAS, both parties are subject to Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA), the HIPAA Privacy rule (Privacy rule), 45 CFR Parts 160 and 164, and the HIPAA Security Rule (Security Rule), 45 CFR Parts 160, 162 and 164 issued by the U.S. Department of Health and Human Services, as either have been amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), as Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111–5).
WHEREAS, both parties desire to comply with HIPAA and HITECH Act requirements relating to the obligations of each in connection with the privacy and security of individually identifiable health information that is subject to protection under HIPAA; and desire to comply with HIPAA standards for the privacy of PHI of patients of Covered Entity.
WHEREAS, Business Associate may receive PHI from Covered Entity, or may create or obtain PHI from other parties for use on behalf of Covered Entity, that is in electronic form, which PHI must be handled in accordance with this Agreement and the standards established by HIPAA and Security Rule upon the effective date of the Underlying Agreement.
WHEREAS, Business Associate may receive PHI from Covered Entity, or may create or obtain PHI from other parties for use on behalf of Covered Entity, which PHI can be used or disclosed only in accordance with this Agreement and the standards established by HIPAA and the Privacy rule.
NOW, THEREFORE, Covered Entity and Business Associate agree as follows:
- “Underlying Agreement” shall include Channel Partner Agreement or Value Added Reseller Agreement and/or End-User Agreement and/or Non-Disclosure Agreement entered between Business Associate and Covered Entity and/or clients of Covered Entity.
- “Business Associate” shall have the meaning given to such term under the Privacy and Security Rules, including but not limited to, 45 CFR §160.103.
- “Covered Entity” shall have the meaning given to such term under the Privacy and Security Rules, including, but not limited to, 45 CFR §160.103.
- “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191.
- “Privacy rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Parts 160 and 164, Subparts A and E, as amended by the HITECH Act and as may otherwise be amended from time to time.
- “Individual” shall have the same meaning as the term “individual” in 45 CFR §164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
- “Protected Health Information” or “PHI” means any information, transmitted or recorded in any form or medium; (i) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future for the provision of health care to an individual, and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual, and shall have the meaning given to such term under HIPAA and the HIPAA Regulations at 45 CFR Parts 160, 162 and 164, including, but not limited to 45 CFR §164.501.
- “Security Rule” shall mean the Security Standards at 45 CFR Parts 160, 162 and 164.
- Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in 45 CFR Parts 160, 162 and 164.
- “Required By Law” shall have the same meaning as the term “required by law” in 45 CFR §164.501.
- “Unsecured Protected Health Information” or “Unsecured PHI” shall mean PHI that is not secured through the use of a technology or methodology that renders protected health information unusable, unreadable, or indecipherable to unauthorized individuals, as specified in guidance issued by the Secretary.
- “Breach” shall have the same meaning as the term “breach” in §13400 of the HITECH Act and shall include the unauthorized acquisition, access, use, or disclosure of PHI that compromises the security or privacy of such information.
II. Stated Purposes For Which Business Associate May Use or Disclose PHI
The Parties hereby agree that Business Associate shall be permitted to use and/or disclose PHI provided by or obtained on behalf of Covered Entity for the purpose of installation, setup, implementation, support, electronic claims management, follow-up with Insurance companies and patients and day-to-day operational purpose for data maintenance and support.Stated Purposes For Which Business Associate May Use Or Disclose PHI. Except as otherwise limited in this Agreement, Business Associate shall be permitted to use or disclose PHI provided by or obtained on behalf of Covered Entity to perform those functions, activities, or services for, or on behalf of, Covered Entity that are specified in the underlying Agreement, provided that such use or disclosure would not violate the Privacy rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.
III. Additional Purposes For Which Business Associate May Use Or Disclose Information.
In addition to the Stated Purposes, Business Associate may use or disclose PHI provided by, created or obtained on behalf of Covered Entity for the following additional purposes(s) (optional section):
- Use of Information For Management, Administration And Legal Responsibilities. Business Associate is permitted to use PHI if necessary for the proper management and administration of Business Associate or to carry out legal responsibilities of the Business Associate, except as otherwise limited in this Agreement.
- Disclosure of Information For Management, Administration And Legal Responsibilities. Business Associate is permitted to disclose PHI provided by, or created or obtained on behalf of Covered Entity for the proper management and administration of Business Associate or to carry out legal responsibilities of Business Associate, except as otherwise limited in this Agreement, provided:
- The disclosure is required by law: or
- The Business Associate obtains reasonable assurances in writing from any third party to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for the purposes for which it was disclosed to the third party, the third party will use appropriate safeguards to prevent other use or disclosure of the information, and the third party agrees to immediately notify the Business Associate of any instance of which it is aware in which the confidentiality of the information has been breached.
- Data Aggregation Services. Business Associate may also be permitted to use or disclose PHI to provide data aggregation services, as that term is defined by 45 CFR §164.501, if specific authorization is received from the Covered Entity.
IV. BUSINESS ASSOCIATE OBLIGATIONS
- Limits on Use and Further Disclosure Established By This Agreement Or Required By Law. Business Associate hereby agrees that the PHI provided by, or created or obtained on behalf of Covered Entity shall not be further used or disclosed other than as permitted or required by this Agreement or as required by law.
- Appropriate Safeguards. Beginning as soon as practicable but in no event later than the effective date of the Security Rule, Business Associate shall establish and maintain appropriate safeguards to prevent any use or disclosure of PHI other than as provided for by this Agreement. Appropriate safeguards shall include implementing administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic PHI that is created, received, maintained, or transmitted on behalf of the Covered Entity.
- Reports of Improper Use or Disclosure. Business Associate hereby agrees that it shall report to the Covered Entity within two (2) days of discovery any use or disclosure of PHI not provided for or allowed by this Agreement.
- Reports of Security Incidents. Beginning as soon as practicable but in no event later than the effective date of the Security Rule, Business Associate shall report to the Covered Entity within two (2) days of discovery any security incident of which it becomes aware.
- Subcontractors and Agents. Business Associate hereby agrees that any time PHI is provided or made available to any subcontractors or agents, Business Associate shall provide only the minimum necessary PHI for the purpose of the covered transaction and shall first enter into a subcontract or contract with the subcontractor or agent that contains the same terms, conditions and restrictions on the use and disclosure of PHI as contained in this Agreement.
- Right of Access to PHI. Business Associate hereby agrees to allow an individual who is the subject of PHI maintained in a designated record set, to have access to and copy that individual’s PHI within 10 business days of receiving a written request from the Covered Entity. Business Associate shall provide PHI in the format requested, unless it cannot readily be produced in such format, in which case it shall be provided in standard hard copy. If any individual requests from Business Associate or its agents or subcontractors access to PHI, Business Associate shall notify Covered Entity of same within 5 business days. Business Associate shall further conform with and meet all of the requirements of 45 CFR §164.524.
- Amendment and Incorporation of Amendments. Within 10 business days of receiving a request from Covered Entity for an amendment of PHI maintained in a designated record set, Business Associate shall make the PHI available and incorporate the amendment to enable Covered Entity to comply with 45 CFR §164.526. If any individual requests an amendment from Business Associate or its agents or subcontractors, Business Associate shall notify Covered Entity of same within 10 business days.
- Provide Accounting of Disclosures. Business Associate agrees to maintain a record of all disclosures of PHI in accordance with 45 CFR §164.528. Such records shall include, for each disclosure, the date of the disclosure, the name and address of the recipient of the PHI, a description of the PHI disclosed, the name of the individual who is the subject of the PHI disclosed, the purpose of the disclosure, and shall include disclosures made on or after the date which is 6 years prior to the request or April 14, 2003, whichever is later. Business Associate shall make such record available to the individual or the Covered Entity within 10 business days of a request for an accounting of disclosures.
- Access to Books and Records. Business Associate hereby agrees to make its internal practices, books, and records relating to the use or disclosure of PHI received from, or created or received by Business Associate on behalf of the Covered Entity, available to the Secretary of Health and Human Services or designee for purposes of determining compliance with the HIPAA Privacy Regulations.
- Return or Destruction of PHI. At termination of this Agreement, Business Associate hereby agrees to return or destroy all PHI provided by or obtained on behalf of Covered Entity. Business Associate agrees not to retain any copies of the PHI after termination of this Agreement. If return or destruction of the PHI is not feasible due to other Legal or other requirements or reasons, Business Associate agrees to extend the protections of this Agreement to limit any further use or disclosure until such time as the PHI may be returned or destroyed.
- Maintenance of PHI. Notwithstanding Section 4(j) of this Agreement, Business Associate and its subcontractors or agents shall retain all PHI throughout the term of the Agreement and shall continue to maintain the information required under §4(h) of this Agreement for a period of six (6) years after termination of the Agreement, unless Covered Entity and Business Associate agree otherwise.
- Mitigation Procedures. Business Associate agrees to establish and to provide to Covered Entity upon request, procedures for mitigating, to the maximum extent practicable, any harmful effect from the use or disclosure of PHI in a manner contrary to this Agreement or the Privacy Rule. 45 CFR §164.530(f). Business Associate further agrees to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of this Agreement or the Privacy rule.
- Sanction Procedures. Business Associate agrees that it shall develop and implement a system of sanctions for any employee, subcontractor or agent who violates this Agreement or the Privacy rule.
- Termination by Covered Entity. Business Associate authorizes termination of this Agreement by the Covered Entity if the Covered Entity determines, in its sole discretion that the Business Associate has violated a material term of this Agreement.
- Failure to Perform Obligations. In the event Business Associate fails to perform its obligations under this Agreement, Covered Entity may immediately discontinue providing PHI to Business Associate. Covered Entity may also, at its option, require Business Associate to submit to a plan of compliance, including monitoring by Covered Entity and reporting by Business Associate, as Covered Entity in its sole discretion determines to be necessary to maintain compliance with this Agreement and applicable law.
- Permitted Disclosure. Except as otherwise limited in this Agreement, Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 42 CFR §164.502(j)(1).
V. OBLIGATIONS OF COVERED ENTITY
- Provision of Notice of Privacy Practices. Covered Entity shall provide Business Associate with the notice of privacy practices that the Covered Entity produces in accordance with 45 CFR §164.520, as well as changes to such notice.
- Permissions. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by individual to use or disclose PHI of which Covered Entity is aware, if such changes affect Business Associate’s permitted or required uses and disclosures.
- Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that the Covered Entity has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
- Safeguards for Protection of PHI. Covered Entity shall: (a) implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, privacy and security of PHI that it creates, receives, maintains, or transmits to Business Associate; (b) protect and safeguard from any oral or written disclosure all PHI, in accordance with applicable statutes and regulations, including, but not limited to, HIPAA and the HITECH Act; (c) implement and maintain appropriate policies and procedures to protect and safeguard PHI; (d) use appropriate safeguards to prevent use or disclosure of PHI other than as permitted or Required by Law; and (e) otherwise comply with the standards and requirements of HIPAA and the HITECH Act. Covered Entity shall notify Business Associate of any material change to any aspect of its security safeguards.
VI. TERM AND TERMINATION
- Term and Termination. This Agreement shall become effective on the Effective Date and remain in effect for the entire term of the Underlying Agreement, or until otherwise terminated as set forth herein.
- Termination for Cause. Upon the occurrence of a material breach of this Agreement by one of the parties (the “Breaching Party”), the other party shall: (a) provide an opportunity for the Breaching Party to cure the breach or end the violation and, if the Breaching Party does not cure the breach or end the violation within the time specified, terminate this Agreement; (b) immediately terminate this Agreement if the Breaching Party has breached a material term of this Agreement and cure is not possible; or (c) if neither termination nor cure is feasible, report the violation to the Secretary.
- No Feasible Return/Destruction of PHI. Due to the nature of the services provided by Business Associate to or on behalf of COVERED ENTITY and/or COVERED ENTITY’s Client pursuant to the Underlying Agreement, Business Associate may be required to retain copies of information used by Business Associate on behalf of COVERED ENTITY and/or COVERED ENTITY’s Clients. Consequently, if the return or destruction of PHI held or received by Business Associate is not feasible; Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI. Business Associate shall remain bound by the provisions of this Agreement, even after termination of this Agreement and/or the Underlying Agreement, until such time as all PHI has been returned or otherwise destroyed as provided in this section.
- Effect of Termination. All rights, duties and obligations established in this Agreement shall survive termination of this Agreement.
- Indemnification. Each party shall indemnify, hold harmless and defend the other party to this Agreement from and against any and all claims, losses, liabilities, costs and other expenses incurred as a result of, or arising directly or indirectly out of or in connection with: (i) any misrepresentation, breach of warranty or non-fulfillment of any undertaking on the part of the breaching party under this Agreement; and (ii) any claims, demands, awards, judgments, actions and proceedings made by any person or organization arising out of or in any way connected with the breaching party’s performance or non-performance, as applicable, of its obligations under this Agreement. In the event of any unplanned outage or downtime, the clinic is responsible for their own downtime policies and procedures. Impacted clients can use alternative systems, including but not limited to, pen and paper documentation and scanning in documents into In Touch EMR when system connectivity is restored.
VIII. OTHER PROVISIONS
- Construction. This Agreement shall be construed as broadly as necessary to implement and comply with HIPAA and the HIPAA regulations. The parties agree that any ambiguity in this Agreement shall be resolved in favor of a meaning that complies and is consistent with HIPAA and the HIPAA regulations.
- Notice. All notices and other communications required or permitted pursuant to this Agreement shall be in writing, addressed to the party at the address set forth in the Underlying Agreement, or to such other address as either party may designate from time to time. All notices and other communications shall be mailed by registered or certified mail, return receipt requested, postage pre‑paid, or transmitted by hand delivery or telegram. All notices shall be effective as of the date of delivery of personal notice or on the date of receipt, whichever is applicable.
- Amendment. This Agreement may only be amended through a writing signed by the parties and, thus, no oral modification hereof shall be permitted. The parties agree to take such action as is necessary to amend this Agreement from time to time to ensure consistency with amendments to and changes in applicable federal and state laws and regulations, including, but not limited to, HIPAA. This Agreement constitutes the entire agreement between the parties. No oral statement or prior written material not specifically mentioned herein shall be of any force or effect and no change in or addition to this Agreement shall be recognized unless evidenced by a writing executed by In Touch EMR LLC and Business Associate, such amendment(s) to become effective on the date stipulated therein.
- Assignment. BUSINESS ASSOCIATE has entered into this Agreement in specific reliance on the expertise and qualifications of In Touch EMR LLC. Consequently, Business Associate’s interest under this Agreement is entitled to terminate this Agreement if the Business Associate is not satisfied with the transferred or assigned or assumed entity.
- Governing Law and Venue. This Agreement has been executed and delivered in, and shall be interpreted, construed, and enforced pursuant to and in accordance with the laws of the State of New Jersey, without giving effect to the application of conflicts of laws. To the fullest extent permitted by law, the parties hereto hereby (i) submit to the jurisdiction of the New Jersey and United States courts of the New Jersey judicial circuit and the federal district, respectively, wherein lies Denville, New Jersey for the purposes of any legal action or proceeding brought under or involving this Agreement; (ii) agree that exclusive venue for any such action or proceeding shall be in Denville, New Jersey or the County of In Touch EMR LLC primary business address; and (iii) waive any claim that the same is an inconvenient forum.If any part of this Agreement is found unenforceable by a court, the rest of this Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying this Agreement. In Touch EMR may enforce its respective rights under this Agreement even if In Touch EMR has waived the right or failed to enforce the same or other rights in the past.
- Headings. Headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
- Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns.
- Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original and all of which shall constitute but one Agreement.
- Gender and Number. The use of the masculine, feminine or neuter genders, and the use of the singular and plural, shall not be given an effect of any exclusion or limitation herein. The use of the word “person” or “party” shall mean and include any individual, trust, corporation, partnership or other entity.
- Priority of Agreement. If any portion of this Agreement is inconsistent with the terms of the Underlying Agreement, the terms of this Agreement shall prevail. Except as set forth above, the remaining provisions of the Underlying Agreement are to be ratified in their entirety.
- No Construction Against Drafter. This Agreement is not to be construed against the drafting party.
- Authority to Contract. Each party represents and warrants that said party is authorized to enter into this Agreement and to be bound by the terms of it.
- All users of In Touch EMR are required to read and accept this End-User Software Subscription & HIPAA Business Associate Agreement before using any features of In Touch EMR and In Touch Biller Pro software.