Med USA Standard Terms and Conditions
These Med USA Standard Terms and Conditions (“Terms and Conditions”) are made in connection with a Master Services Agreement (“MSA”) entered into between the licensed and authorized provider of medical services identified in the MSA (“Provider”), and Med Am International, LLC, a Utah limited liability company (“Med USA”).
1. MSA. Provider agrees and acknowledges that all of these Terms and Conditions are incorporated into and made a part of the MSA, and Provider agrees to and accepts all of these Terms and Conditions. For purposes of these Terms and Conditions, this “Agreement” shall mean the MSA together with these Terms and Conditions. Accordingly, all references to this Agreement shall mean the MSA and these Terms and Conditions. All capitalized terms used in these Terms and Conditions which are not defined in these Terms and Conditions, shall have the meanings given them in the MSA.
2. Credentialing. Provider agrees and acknowledges that as a condition to Med USA providing Premium Services, all Individual Providers must have been Credentialed. The terms “Credentialed” or “Credentialing” means the act of applying to preferred provider panels, health maintenance organization panels of insurance companies, and applicable governmental agencies for participating status and acceptance of the payer’s contractual rates. Med USA offers Credentialing Services as a Premium Service and will provide such Credentialing Services if requested by Provider, or if Med USA determines that it should provide such Credentialing Services. If Provider does not engage Med USA, or if Med USA otherwise does not provide Credentialing Services, Provider agrees to take all action necessary to complete Credentialing prior to the time Med USA determines such Credentialing needs to be completed so that Med USA may provide Premium Services. Regardless of whether Med USA or a third party completes Credentialing for Provider, as part of the Credentialing process, Provider agrees to deliver to Med USA all Credentialing Information required for Credentialing. Provider acknowledges that Provider needs to complete Credentialing in order for Med USA to be able to provide Premium Services, and accordingly, Med USA may determine in its sole discretion when such Credentialing must be completed, and when Credentialing Information needs to be delivered. Provider acknowledges that Med USA intends to and agrees that it may rely upon the Credentialing Information provided to it in connection with the performance of Premium Services, and that the amount and timing of collections for Medical Services are dependent upon the completeness, timeliness of delivery and accuracy of the Credentialing Information, as well as other variables, some of which are beyond the control of Med USA. If Provider fails to timely complete Credentialing, Med USA may, in its sole discretion, continue to provide, or provide Premium Services to Provider, or Med USA may defer or terminate such Premium Services. In addition, the failure of Provider to timely complete Credentialing shall constitute a Material Breach. The term “Medical Services” means clinical procedures and medical and ancillary services provided by or on behalf of Provider and Individual Providers to patients of Provider. The term “Credentialing Information” means all information necessary for Providers and Individual Providers to be Credentialed, whether by Med USA or a third party, and for Med USA to provide Premium Services. Credentialing Information includes, without limitation, Billing Information, and other related information. The term “Credentialing Services” means preparation and submission of applications and documents to a payer based on Credentialing information provided by Provider for Credentialing. The term “Individual Provider” means an individual provider of Medical Services on Provider’s staff.
3. Credentialing Release. In connection with Credentialing Services, Provider authorizes Med USA to release all information provided Med USA to applicable insurance companies, state and local agencies, private payers and their agents, and any other applicable entity for purposes of credentialing (“Payers”). Provider agrees to review all documents prepared by Med USA and delivered to Provider for accuracy before signing such documents or returning the documents to Med USA for delivery to Payers. Provider also agrees to hold harmless Med USA from any actual or threatened action as a result of releasing such information. Provider further acknowledges that the Credentialing Services are intended to facilitate Provider’s application to the Payers of Provider’s choice. The Credentialing Services are not a guarantee of payment from specified Payers, or of acceptance to specified panels of Payers. Med USA assumes no responsibility for the payment or non-payment of claims before or after Credentialing Services are provided. In addition, Med USA assumes no responsibility for the payment or non-payment of Provider’s claims, either before or after Provider is accepted by a Payer.
4. End User Compliance. Provider shall cause all End Users to use the Program strictly in accordance with the terms and conditions of this Agreement and the EULA, and shall cause all End Users to otherwise comply with all obligations of Provider under this Agreement. Provider shall use commercially reasonable efforts to maintain the security of access to the Program, and will not bypass or disable any security mechanisms in the Program, and to cause all End Users to do the same. Provider will further cause all input into the Database by End Users to be accurate. Without limiting the generality of the foregoing, Provider shall, and shall cause all End Users, at all times to comply with the security procedures described in the Documentation, if any. Provider agrees that it will not alter or remove any trademarks or copyright notices or other notices and disclaimers located or used on, or in connection with, the Program, or any reports generated by or in connection with the Program, and will cause all End Users to do the same. The term “Database” means the database hosted and maintained by Med USA for Provider. The term “Documentation” means any written or electronic materials, including, without limitation, installation, operating or service manuals, provided by Med USA in connection with any Licensed Program.
5. Hosting; Access. Med USA agrees to host, or cause a third party acceptable to Med USA, to host and make available to Provider the Licensed Program and Database pursuant to the terms of this Agreement. Med USA shall use reasonable efforts to back up the Database and maintain the Database in a secure manner. Provider shall be responsible for providing all equipment and services required for Provider to access and use the Licensed Program and Database, the Internet to access and use the Licensed Program and Database, including computer and telecommunications equipment, the equipment storage, connection lines, and related software. The term “Licensed Program” means the Med Prime™ computer software program, together with any and all corrections, modifications, additions and revisions to such programs made available to Provider by Med USA. Provider shall have access to the Licensed Program and Database solely through the Internet at a website determined by Med USA, or by another means designated by Med USA. Med USA may change the means of access from time to time.
6. Identification of End Users. Provider shall provide Med USA with written notice of each End User who will access the Licensed Program and Database and shall specify the level of access and level of security which should be granted to each such employee. Provider shall promptly notify Med USA upon any termination of any End User which has password access to the Licensed Program or Database, and Med USA shall cancel or disable the user identification and password of the terminated End User. Provider and each End User shall have access to the Licensed Program and Database only with a user identification and password. User identifications and passwords will be user-specific and may not be disclosed, transferred or assigned to any other individual.
7. Audit Rights. Med USA and its authorized representatives shall have the right, upon reasonable advance notice, to enter Provider’s facilities and offices, and all other locations where relevant records are located, and inspect, copy, and audit Provider’s books and records regarding the use of the Licensed Program and Database, together with all other records in connection with this Agreement. Any such audit, copying and inspection shall be at Med USA’s cost. However, and notwithstanding the foregoing sentence, if at any time an audit discloses that Provider has failed to comply with the material terms of this Agreement, or a discrepancy or error which results in an underpayment of Fees to Med USA of three percent (3%) or more during any applicable accounting period, Provider shall pay all costs of such audit, including Med USA’s internal costs and the costs of independent auditors, and other out-of-pocket expenses incurred by Med USA. Any underpayment disclosed by an audit shall be immediately due and paid by Provider to Med USA within ten (10) days of notice to Provider of the audit result and shall bear interest from the date such amount was due until paid.
8. Intellectual Property.
a. Provider will take all steps necessary to protect Med USA and its suppliers’ and licensors’ intellectual property and proprietary rights in the Database, Licensed Program, and Documentation.
b. Provider expressly agrees and acknowledges that the Licensed Program, Database, and Documentation consist of proprietary, unpublished works of Med USA, or its licensors, protected under United States copyright, patent, trademark, and trade secret laws of general applicability. Provider further acknowledges and agrees that all right, title, and interest in and to the Licensed Program, Database, and Documentation, together with all modifications, enhancements, copies, and derivative works, including all copyright rights, and all other intellectual property rights, are and shall remain with Med USA, or its licensors. Provider further agrees that, by this Agreement, Provider is only authorized to use and access the Database, Licensed Program, and Documentation in the manner provided in this Agreement and, except for such limited authorization to use the Database, Licensed Program, and Documentation, no right, title or interest in or to the Licensed Program, Documentation, or Database, or any copyright, patent trademark, or other intellectual property proprietary right relating thereto, is in any manner assigned, transferred or conveyed to Provider. This Agreement does not convey to Provider an interest in or to the Licensed Program, Database, or Documentation, but only a limited right of access and use revocable in accordance with the terms of this Agreement.
c. The Licensed Program includes the Current Procedural Terminology (CPT®) Data File, which means Content from the print publication Current Procedural Terminology, Fourth Edition and CPT® Standard data file published by the AMA (“CPT® Content”), which is copyrighted by the American Medical Association (“AMA”), and CPT® is a registered trademark of the AMA.
i. Med USA, as a party to a license agreement with the AMA, is authorized to grant Provider and any End User a limited, non-exclusive, non-transferable, non-sublicensable license for Provider and any End User to use CPT® Content in the Licensed Program, for the sole purpose of internal use by Provider in the manner provided in this Agreement. A license to the Licensed Program shall include the right to use CPT® Content subject to and in accordance with the Agreement. The license granted to use the CPT® Content shall automatically terminate upon termination of the Agreement between Med USA and AMA, unless prior written consent of AMA is obtained by Med USA or a direct license between Provider and AMA is entered.
ii. The provision of updated CPT® Content in the Licensed Program is dependent on a continuing contractual relationship between Med USA and the AMA.
iii. Provider and all End Users are prohibited from making CPT® Content publicly available; creating derivative works (including translating); or transferring, selling leasing, licensing, or otherwise making available to any unauthorized party the CPT® Content, or any copy or portion thereof.
iv. Provider expressly acknowledges and agrees to the extent permitted by applicable law, use of CPT® content is at Provider’s and any End User’s sole risk and the CPT® Content is provided “as is” without warranty of any kind. The AMA does not directly or indirectly practice medicine or dispense medical services. Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT®, and the AMA is not recommending their use. The CPT® Content does not replace the AMA’s Current Procedural Terminology book or other appropriate coding authority. The coding information contained in the CPT® Content should be used only as a guide.
v. Med USA is required to keep records and submit reports including information necessary for the calculation of royalties payable to the AMA by Med USA. Provider expressly consents to the release of its name to the AMA as part of Med USA’s obligations under the terms of Med USA’s license agreement with the AMA. All records and reports required under this Section shall be subject to audit by the AMA.
vi. CPT® is commercial technical data, which was developed exclusively at private expense by the AMA, 330 North Wabash Avenue, Chicago, Illinois, 60611. This Agreement does not grant the Federal Government or any Federal Government End User a direct license to use CPT® Content and any such licensed granted shall be subject to DFARS 252.227-7015 (Technical Data – Commercial Items) and FAR 52.227-14 (Data Rights – General).
9. Provider Content; Trademarks. All Provider Content shall be owned by Provider. However, Provider hereby grants to Med USA access to and a license to use Provider Content solely for purposes of providing Premium Services and Additional Services, and otherwise performing its obligations under this Agreement. Provider shall deliver to Med USA copies of all Provider Content requested by Med USA in connection with the performance of its obligations under this Agreement. Provider further grants to Med USA a license to use Provider’s trademarks in connection with the performance of its obligations under this Agreement. The term “Provider Content” means any information supplied to Med USA, or input in the Database by Provider or on behalf of Provider, in connection with any services provided by Med USA under this Agreement, including, but not limited to, Billing Information, Credentialing Information, patient demographics, procedure codes, diagnosis codes, national provider identifier of provider and license information, national provider identifier of facility and license information, Provider and group legacy numbers, business licenses information, medical records, fee schedules, and proprietary Provider documents.
10. Maintenance; Support; EDI. Med USA shall use reasonable efforts to develop new versions of and updates for the Licensed Software, and to make such new versions and updates available to Provider when they are generally released to customers of Med USA. Med USA is not in the business to provide hardware support to Provider. In rare instances, where a vendor or other third party is not able to timely provide service to Provider, and Med USA agrees to do so in its sole discretion, Med USA may provide hardware support services. In that event, Provider agrees to pay Med USA for such services at Med USA’s then-current standard hourly rate for labor, plus mileage and parts. Otherwise, Provider is responsible for all hardware support and maintenance costs for equipment located at Provider sites. Subject to the foregoing, Med USA will perform the following support services:
a. Licensed Program Training. Licensed Program training for Provider and End Users is available by appointment. All such training shall be billed at Med USA’s then-current standard published hourly rate as Fees. In addition, if on-site training is provided, Provider shall pay for travel time at Med USA’s then-current standard published hourly rate, and if such travel is by air or otherwise requires an overnight stay, Provider shall reimburse Med USA as Fees for all air, hotel, meals, and other such travel expenses.
b. Telephone Assistance. . Provider’s designated support contact may contact a Med USA support representative on Med USA’s designated support telephone number (toll-free in the continental U.S.) or through a designated email address for assistance using the Database and Licensed Program and identifying and providing a work-around for Database and Licensed Program problems to the extent possible by telephone or email communication. Telephone assistance, including for calls regarding critical support issues, will be available during Med USA’s normal telephone support hours, excluding holidays. Within a reasonable time after receipt of a phone call, Med USA will respond to calls for telephone assistance regarding support issues, and shall make commercially reasonable efforts to resolve such issues. Emergency telephone assistance outside of the normal business hours listed above is available by support staff on cell phone.
c. Backups. Med USA will provide reasonable backup services at a remote location for Provider Content.
d. Non-Supported Matters. Med USA will provide support only with respect to use of the Licensed Program and Database as provided in this Agreement.
11. Recoding. In connection with providing Premium Services, and as part of Premium Services, Med USA may from time to time determine that the medical coding of medical procedures in connection with records reviewed is inaccurate (“Recoding”). Accordingly, and in Med USA’s sole discretion, Provider agrees and acknowledges that Med USA may provide such Recoding services. In the event Med USA provides any Recoding, the following terms will apply:
a. Med USA and Provider agree that their shared objective in performing Recoding is to document as thoroughly and accurately as possible the actual medical services provided to patients, the diagnoses of the patient’s illness or injury, drugs, supplies or equipment provided to any patient, and the procedures performed by Provider’s physicians, nurses and medical staff members. No diagnosis code or medical code or modifier will be assigned, modified, omitted or amended for the sole purpose of increasing or affecting payment for any service or procedure; to assure coverage of a procedure or service by any payer; or in response to any request for an audit or investigation by any payer or governmental authority.
b. Provider agrees and acknowledges that any Recoding will be based on the expertise and experience of Med USA in connection with medical coding. Consistent with the objectives described in this Agreement, and after Med USA has provided an explanation for a decision regarding Recoding, if Med USA and Provider cannot agree on the resolution of any Recoding disputes or matters, the final decision regarding Recoding shall be made in the exclusive discretion of Provider. However, and notwithstanding anything to the contrary in this Agreement, or any other agreement, in the event Med USA disagrees with the decision of Provider, Med USA reserves the right to decline to Recode any medical service, procedure, drug, item or supply if, in its judgment, to do so would jeopardize the integrity of Med USA’s Recoding program. In addition, Med USA may terminate providing Premium Services and this Agreement. Both parties acknowledge that appropriate medical coding and diagnosis coding changes constantly and involves a high degree of judgment, especially involving medical procedures which are considered experimental and for which no new and specific American Medical Association Current Procedural Terminology (“CPT”), Centers for Medicare and Medicaid Services (“CMS”) Healthcare Common Procedure Coding System (“HCPCS”), or drug codes have yet been developed or adopted. Med USA shall consult on an ongoing basis with Provider’s staff to provide and exchange information regarding the proper Recoding of medical services and procedures in order to monitor, improve and maximize the accuracy of Recoding.
c. Both parties expressly acknowledge that because Provider is the entity enrolled and credentialed by payers and Provider is the entity submitting claims for payment and receiving payment, and that although Med USA can suggest, advise, and consult with Provider, Med USA remains an independent contractor of Provider. Therefore, Provider is solely and ultimately responsible for all coding, Recoding, and payment issues, including allegations of wrongdoing, or fraud and abuse issues
12. Med USA Confidential Information. Provider agrees and acknowledges that it will have access to confidential information of Med USA. The Licensed Program, including source code, although the parties acknowledge that the license granted under the EULA is only for the object code therein, the Licensed Program, Database, Documentation, any non-public information delivered by or under the direction of Med USA, or used by Provider in connection with the use of and access to the Licensed Program, Database, procedures, business methods, and concepts proprietary to Med USA, trade secrets, and any other non-public intellectual or proprietary rights (collectively “Confidential Information”) shall be maintained by Provider as confidential and available exclusively for use by Provider, as provided in this Agreement, and for no other purposes. Provider, and End Users, shall not use or disclose any Confidential Information or any passwords to anyone, except as ordered by a court of competent jurisdiction or as otherwise required by law. Provider shall not disclose any Confidential Information pursuant to a court order or as required by law until Provider has given Med USA ten (10) days prior written notice and an opportunity to oppose such disclosure. Provider agrees to promptly inform Med USA in the event that it becomes aware that any Confidential Information has been disclosed to a person or entity, or that a person or entity has been given access thereto, in a manner not authorized by this Agreement. Provider shall not, except for authorized business use associated with this Agreement, download from the Database, copy or distribute any Confidential Information, or remove any Confidential Information from the facilities of Provider without prior permission of Med USA, nor use any Confidential Information, either during the term of this Agreement or thereafter. Provider agrees to take all reasonable steps necessary to protect Confidential Information from unauthorized access, distribution, copying or use. Provider shall require all End Users and each of its employees, directors, officers, or other individuals who may have access to (a) any Confidential Information, or (b) any confidential information of Provider, including any information as to payment, collection, reimbursement, or overpayment with respect to any patient or other third party payer, to first enter into a written confidentiality agreement expressly prohibiting such access, or any distribution, copying, or use, in each case except as necessary in performance of its duties for Provider and otherwise in accordance with the terms of this Agreement. Such written confidentiality agreement shall be executed prior to the granting of any access to or the disclosure of any Confidential Information. Provider acknowledges that Med USA is and shall remain the sole and exclusive owner of all Confidential Information, as well as all memoranda, notes, papers, and documents containing any Confidential Information, and all copies thereof and objects associated therewith. Provider agrees to immediately deliver all Confidential Information, including all software copies and objects in whatever form, that may be in Provider’s possession or control to Med USA on termination of this Agreement, or, if applicable, termination of the Wind Down Period, or at any other time on Med USA’s request, together with written certification of compliance.
13. Business Associate Agreement. Med USA acknowledges that in connection with this Agreement, Med USA will have access to protected health information of Provider. Accordingly, Med USA agrees to enter into a business associate agreement in the form provided by Med USA.
14. Limitation of Liability. TO THE FULLEST EXTENT AVAILABLE UNDER APPLICABLE LAW, MED USA’S ENTIRE AND CUMULATIVE LIABILITY TO PROVIDER, OR ANY THIRD PARTY, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE USE OF THE DATABASE, DOCUMENTATION, OR LICENSED PROGRAM, OR PERFORMANCE OF PREMIUM SERVICES OR ADDITIONAL SERVICES, OR ANY OTHER SERVICES, INCLUDING ANY TORT, SUCH AS NEGLIGENCE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID TO MED USA UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. WITHOUT WAIVER OF THE LIMITATIONS SET FORTH IN THIS SECTION OF THIS AGREEMENT, IN NO EVENT SHALL MED USA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF MED USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE TO TIMELY REPORT (OTHER THAN TO PROVIDER AS MAY BE INCLUDED IN PREMIUM SERVICES) OR TIMELY REIMBURSE OR RETURN REFUNDABLE EXPENSES ON PROVIDER’S BEHALF REGARDLESS OF ANY DISCOVERY OF SUCH REFUNDABLE AMOUNTS BY MED USA THROUGH ITS PROVISION OF PREMIUM SERVICES, OR ANY FAILURE OF PERFORMANCE OF ANY KIND OR FROM ANY CAUSE. PROVIDER EXPRESSLY AGREES THAT MED USA SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY PROBLEMS, ERRORS OR BREACHES THAT MAY RESULT FROM FALSE, INACCURATE OR INCOMPLETE INFORMATION PROVIDED BY PROVIDER, UNAUTHORIZED USE OF A USER IDENTIFICATION OR PASSWORD, PROVIDER’S FAILURE TO TIMELY NOTIFY MED USA OF EMPLOYMENT CHANGES, OR PROBLEMS ASSOCIATED WITH PROVIDER’S CONNECTIVITY. FURTHER, MED USA SHALL NOT BE LIABLE FOR, AND ANY WARRANTY UNDER THIS AGREEMENT SHALL BE VOID IF THE LICENSED PROGRAM OR DATABASE HAS BEEN ACCESSED OR USED BY ANYONE OTHER THAN PROVIDER, OR IF THE LICENSED PROGRAM OR DATABASE HAS BEEN ABUSED OR MISAPPLIED. MED USA AND PROVIDER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REPRESENT BARGAINED FOR ALLOCATIONS OF RISK, AND THAT THE FEES, CHARGES, AND COSTS OWING UNDER THIS AGREEMENT, REPRESENT THE ALLOCATIONS OF SUCH RISK.
15. Indemnification. Provider hereby agrees to indemnify and hold harmless Med USA, and its officers, directors, employees, agents and subcontractors, from and against any and all claims, actions, demands, and related liabilities, expenses, including staffing and administrative costs, penalties, and losses, including the payment of all legal expenses, including reasonable attorneys’ fees and costs, arising out of or connected with (a) any Material Breach, (b) any claims brought by any patient, customer, vendor, other payer of Provider, or any third party, except for claims based on the negligence or willful misconduct of Med USA, (c) any investigations or prosecutions brought against Provider or Med USA, including any investigations or prosecutions brought as a result of the work or investigation of any recovery audit contractor, for actual or alleged violation of any Medical Services-Related Laws, or (d) any errors, including coding errors, claims, liability, or actions of any nature arising as a result of or in connection with any Provider Content that is inaccurate, incomplete, or misleading, except, in each case, to the extent such claims are a direct result of a material breach by Med USA of any terms of this Agreement or the negligence or willful misconduct of Med USA. Med USA and Provider shall reasonably cooperate with each other, at Provider’s expense, in connection with any investigations and prosecutions under the Medical Services-Related Laws and any other indemnifiable claims under this Agreement. Med USA shall have the right to control its own defense and engage legal counsel acceptable to Med USA.
16. Infringement. Provider shall cooperate with Med USA, at Med USA’s request, to protect the Licensed Program and Database, including in connection with any lawsuits or disputes involving the Licensed Program or Database. Additionally, Provider shall promptly notify Med USA and provide to it relevant background and other facts upon becoming aware of any actual or potential infringement, misappropriation, imitation, illegal use or misuse, or reasonable likelihood thereof, of the Licensed Program and Database (“Infringement”). In the event of any Infringement, Med USA shall have the sole right to determine the course of action with respect to such Infringement and to bring any legal action or other proceeding for the Infringement (“Infringement Proceeding”), and to settle, and collect any settlement amount or judgment for any Infringement Proceeding, and shall be solely entitled to any proceeds of any Infringement Proceeding, including, without limitation, any settlement proceeds, insurance proceeds, arbitration award, judgment, or other consideration in any form. Upon Med USA’s request, and at Med USA’s expense, Provider shall take all appropriate or necessary actions to assist Med USA in connection with the Infringement Proceeding, including without limitation, consenting to being named as a party in such Infringement Proceeding. Without limiting the generality of the foregoing preceding sentences, Provider hereby irrevocably releases Med USA from any claim based on any settlement or compromise or Med USA’s participation in any Infringement Proceeding.
17. Additional Services. Med USA may agree, in its sole discretion, to provide additional services (“Additional Services”), which may include custom software programming for the Licensed Program and electronic data interfaces with Provider’s desktop computers or other devices, all upon specific written request of Provider from time to time during the term of this Agreement (“Custom Programming”). Med USA is not obligated to perform any Additional Services until the terms of a proposal for Additional Services have been agreed upon in writing by both Med USA and Provider. Any proposal shall include a description of the Additional Services, a schedule for completion, if applicable, cost, and other applicable terms. If fees for Additional Services are specifically identified in the MSA, then the fees for Additional Services are included in the Fees. Alternatively, Provider will be charged for such Additional Services in accordance with the terms of the applicable proposal which is accepted by Med USA. Unless otherwise provided, the rate for Custom Programming shall be Med USA’s standard rate per hour for Custom Programming. For purposes of this Agreement, all Custom Programming code, work product, and deliverables shall become part of the Licensed Program, and the defined term Licensed Program includes Custom Programming.
18. Fees; Expenses. Regardless of whether funds are available in the Bank Account of Payment Account, Provider agrees to pay Med USA all Fees, and reimburse Med USA for all costs and expenses incurred, including travel expenses and those described in this Agreement, in the amounts and in accordance with the payment terms set forth in this Agreement. All Fees shall be due and owing no later than the fifteenth day of each month for services provided and expenses incurred during the prior month. The reimbursement of expenses includes, without limitation, postage charges, phone charges, AMA licensing royalties, e-prescribing fees and, if applicable, reimbursement for Med USA’s payment of Refundable Amounts. If for any reason, notwithstanding the other terms of this Agreement, Provider fails to pay when due any Fees, including payment or reimbursement of expenses, Provider agrees to pay all costs of collection, including reasonable attorney’s fees, costs, and expenses, incurred by Med USA in connection with such collection of Fees. The term “Refundable Amounts” means overpayments or other refundable amounts determined by Provider or Med USA (through the Premium Services or otherwise) to be amounts greater than the legitimate payment amount(s) rightfully due to Provider, and which therefore do not belong to Provider and which therefore are amounts which must be repaid either to a patient or to a payer from which Provider received payment in connection with Medical Services, including insurers, government programs or other third-party payers.
19. Payment from Bank Account and Payment Account. If such funds are available in the applicable account, Med USA will automatically withdraw all sums due to Med USA from the Bank Account or, if applicable, the Payment Account (“Payment Withdrawal”). Provider hereby agrees to execute all necessary documents for this authorization, including an Authorization Agreement for Electronic Funds Transfer Direct Payment Plan in the form provided by Med USA, and authorizes Med USA to automatically withdraw such sums. All sums due to Med USA, including but not limited to the Fees, will be withdrawn as a Payment Withdrawal from the Bank Account or, as applicable, the Payment Account, on the fifteenth (15th) day of each calendar month. In the event that sufficient funds are not available in the Bank Account or the Payment Account, as the case may be, for a Payment Withdrawal on the fifteenth (15th) day of each month for payments to Med USA, or if Provider otherwise fails to make any payment when due, Med USA will charge Provider a late payment charge equal to the lesser of one and one-half percent (1.5%) of the amount owing per month until paid, or the maximum monthly rate allowed by applicable law, and such event shall constitute a Material Breach.
20. Payment Authorization in the Event of Default. If Provider defaults on any of its payment obligations under this Agreement and subsequently fails to cure such default in any cure period provided under this Agreement, then, in addition to any remedy available, Med USA will be authorized to deposit into a bank account controlled by Med USA (the “Med USA Account”) any checks it receives under this Agreement from patients, payers, or otherwise, that are comprised entirely of funds that are not from Medicare, Medicaid, or any other federally-funded programs. Med USA shall have the right to withdraw from the Med USA Account an amount sufficient to pay off the current month’s Fees and expenses and any amounts past due under this Agreement. Once the current month’s Fees and expenses and any past due amounts are paid in full, Med USA shall make a payment to Provider in an amount equal to the balance remaining in the Med USA Account.
21. Security Interest; Remedies. Provider hereby grants to Med USA a security interest in the Accounts Receivable, exclusive of any Refundable Amounts, and all proceeds thereof to secure the payment and performance of all of Provider’s obligations under this Agreement. If a Material Breach has occurred, Med USA may exercise all rights and remedies of a secured party under the applicable version of the Uniform Commercial Code with respect to the security interest granted in this Agreement. Provider represents and warrants that the Accounts Receivable are not subject to any lien or encumbrance other than the security interest created hereby and will not be subject to any such lien or encumbrance as long as Provider has any obligations under this Agreement. The term “Accounts Receivable” means the amounts outstanding and owing to Provider from patients, clients, insurers, or other third parties, for services rendered by Provider between the Effective Date and the date of termination of this Agreement.
22. Invoice. On or about the tenth (10th) business day of each calendar month, Med USA shall provide an invoice to Provider summarizing the services rendered during the previous calendar month. Provider shall notify Med USA in writing, with specificity, of any concerns, questions or objections it may have in respect to any portions of the invoice within thirty (30) days of Provider’s receipt of such invoice. If Provider fails to do so, such objections shall be forever waived. If Med USA determines that the invoice contained errors or charges in violation of this Agreement, then the amount to be withdrawn (if it has not already been withdrawn) shall be accordingly adjusted, or such amount (if the amount has already been withdrawn) shall be repaid to Provider or credited to Provider’s account, in Med USA’s sole discretion, within thirty (30) days of such determination. In addition to all Fees and other amounts owing to Med USA, Provider agrees to pay to Med USA an amount equal to all payment card and electronic transaction processing fees, including automated clearinghouse transaction fees, incurred by Med USA for any such payments
23. Increases in Fees.
a. Med USA agrees that the amount of the Fees will not increase during the Initial Term, unless a Material Change occurs. However, Provider acknowledges that Med USA may provide the amount of initial Fees based on incomplete information, or information not available as of the time such pricing information is provided. Accordingly, and notwithstanding anything to the contrary, Med USA may one time during the first six months of the Initial Term increase the amount of Fees based on information provided to Med USA.
b. Upon the occurrence of a Material Change, Med USA may either terminate this Agreement, or terminate only the Premium Services or such Additional Services to which the Material Change applies, or increase the amount of Fees, in its sole discretion. If Med USA elects to increase the amount of Fees based on a Material Change, the increase in the amount of Fees may apply retroactively to compensate Med USA for the cost and expense of providing Premium Services or Additional Services subsequent to the Material Change, but prior to the increase in Fees.
c. After the Initial Term, Med USA may increase the Fees from time to time in its sole discretion. In the event Med USA increases the Fees after the Initial Term, or during the first six months of the Initial Term, Med USA will provide Provider with thirty (30) days prior written notice of the change. If the cumulative increases in a given 12-month period after the Initial Term, or if the increase during the first six months of the Initial Term, is/are at least 100% of the original amount, Provider may terminate this Agreement or, at its option, only the Premium Services or such Additional Services with respect to which the Fees increase by such amount, upon thirty (30) days prior written notice to Med USA.
24. Sales Tax. Provider agrees to pay and be responsible for all sales and other taxes imposed by or otherwise owing to any governmental authority applicable to this Agreement, except income taxes of Med USA, including all applicable excise, property, value-added, sales or use, or similar taxes, any withholding taxes, national pension or other welfare taxes, customs, import, export, or other duties, levies, tariffs, taxes, or other similar charges. Regardless of whether Med USA collects sales taxes for transactions, Provider acknowledges that Provider is fully responsible for the payment of any sales taxes owing.
25. Collection of Accounts Receivable. In the event that Med USA is unable to collect Accounts Receivable because an insurer or other third-party payer files for and obtains relief under bankruptcy or similar laws, and the Accounts Receivable which have been submitted on behalf of Provider to such payer are affected by such relief, Provider agrees to pay to Med USA the Fees Provider would have paid pursuant to this Agreement if the applicable Accounts Receivable had been collected.
26. Representations, Warranties, and Covenants of Provider. As an inducement to Med USA to enter into this Agreement and to grant the licenses and perform the Premium Services, as applicable, pursuant to this Agreement, Provider represents, warrants, and covenants to Med USA the following, which representations and warranties shall be true at the time this Agreement is entered into, and shall remain true and correct throughout the life of this Agreement, renewed daily:
a. All Provider Content is accurate and complete, and maintained in compliance with HIPAA and all Medical Services-Related Laws and any other applicable federal, state, and local laws and regulations.
b. Provider by itself or through Med USA, shall continually and systematically review and investigate its books and accounts to determine whether it has received any overpayments and whether any credit balances constitute overpayments, and if Provider or Med USA determines that the Provider has received overpayments, Provider warrants that it will not retain for its own use or benefit any Refundable Amounts and that it will make timely refunds of all such amounts to patients or payers as appropriate. Provider, each Individual Provider, and each owner, officer, director, other employee of Provider, and any individual or other affiliation of Provider (as Affiliation is defined in 42 CFR §424.502) does not have any existing debt owed to Medicare, Medicaid, CHIP, or any other federal health care program that is in risk of being referred or has been referred to the United States Department of Treasury.
c. If Provider is an entity, Provider is duly organized, validly existing and in good standing under the laws of the state of its incorporation/organization, and is qualified and has all licenses and certifications necessary to carry on its professional business for the provision of Medical Services, as such business is being conducted in each state where such services are provided.
d. This Agreement constitutes a legal, valid, binding and enforceable obligation of Provider. All requisite action has been taken by or on behalf of Provider to make this Agreement valid and binding upon the Provider, and enforceable in accordance with its terms.
e. Neither the execution, or acceptance of the terms of this Agreement, and delivery of this Agreement, nor the transactions contemplated under this Agreement, nor fulfillment of or compliance with the terms and conditions of this Agreement, will conflict with or result in a breach of any of the terms, conditions or provisions of Provider’s organizational documents, or any legal restriction or regulatory directive, or any agreement or instrument to which Provider is a party or by which Provider is bound; and, further, no consent, approval, authority or order of any court or governmental agency or body is required for the execution and performance by Provider of, or compliance by Provider with, this Agreement or the performance under this Agreement.
f. All forms utilized by Provider for communications comply with all Medical Services-Related Laws, including all other applicable federal, state, and local laws and regulations, and Med USA shall have no duty to police or monitor such forms for compliance, but rather, may rely upon the foregoing.
g. Provider, each Individual Provider, and each owner, officer, director, other employee of Provider, and any individual or other affiliation of Provider (as Affiliation is defined in 42 CFR §424.502), is qualified for and has therefore not been excluded, for any reason or at any time, from participation in Medicare, Medicaid or any other federally-funded programs for the payment for Medical Services.
h. Provider, each Individual Provider, each owner, officer, director, any other employee of Provider, and any individual or other affiliation of Provider (as Affiliation is defined in 42 CFR §424.502), has not or is not subject to a payment suspension under a federal health care program, has not had or does not currently have its billing privileges denied or revoked, and has not had or does not currently have any other Disclosable Event (as defined in 42 CFR §424.502 and applied in 42 CFR §519).
i. Provider, each Individual Provider, each owner, officer, director, any other employee of Provider, and any individual or other affiliation of Provider (as Affiliation is defined in 42 CFR §424.502), does not have, or has not had within the previous 5 years, any affiliations with a currently or formerly enrolled Medicare, Medicaid, or CHIP provider or supplier that has had a Disclosable Event (as defined in 42 CFR §424.502 and applied in 42 CFR §519).
j. Provider has made full and complete disclosure to Med USA, in response to its inquiries, regarding its medical practice and records, and no information has been withheld which, if disclosed, may have given notice to Med USA of factors which may materially increase the cost to Med USA of providing Premium Services or otherwise constitute a Material Change as provided under this Agreement.
k. Provider, and if applicable, each Individual Provider, of the Medical Services which are the subject of this Agreement, is/are fully licensed under applicable law, including all Medical Services-Related Laws, and qualified to provide Medical Services of the type and nature provided by Provider and/or such Individual Provider, and that such services are provided in compliance with all applicable laws and regulations, including all Medical Services-Related Laws.
l. Provider is, and shall at all times remain, knowledgeable of and in compliance with all federal, state and local laws and regulations applicable to it, including all Medical Services-Related Laws, and the provision of Medical Services as contemplated or provided by it, and, further, with all provisions, duties and restrictions pursuant to any and all private health plans to which it is subject.
m. All Medical Services and other actions by or on behalf of Provider resulting in Billing Information provided to Med USA have been duly authorized by and on behalf of Provider, and Provider has the full power and authority to perform in accordance with each of the terms of this Agreement. The term “Billing Information” means demographic, procedure and charge information regarding all Medical Services.
n. All information provided to Med USA pursuant to this Agreement, including all coding of charges for Medical Services provided to its patients, but without limitation intended, is and shall be true and correct, and may be relied upon by Med USA for the provision of Premium Services.
o. Except as Provider has notified Med USA in writing, neither Provider nor any Individual Provider has been given notice, nor otherwise been accused, in a legal action or otherwise, of any claim, allegation or complaint in relation to the practice of medicine, or participation in the practice of medicine, which could result in the disqualification of such person from the performance of Medical Services.
27. Operation in Accordance with Law. Provider agrees that it will at all times comply with all applicable federal, state, and local laws, ordinances, and regulations relating to the subject matter of this Agreement, including without limitation, Medicare (42 U.S.C. § 1395 et seq.); Medicaid (42 U.S.C. § 1396 et seq.); the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the False Claims Act, the Anti-Kickback Statute (“AKS”), the Physician Self-Referral Law (“Stark law”), the Exclusion Authorities, Civil Monetary Penalties Law (“CMPL”), the Fraud Enforcement and Recovery Act of 2009, the Patient Protection and Affordable Care Act of 2010, the American Recovery and Reinvestment Act of 2009, including the Health Information Technology for Economic and Clinical Health Act, each as may be amended during the term of this Agreement from time to time (collectively, the “Medical Services-Related Laws”).
28. No Warranties. MED USA REPRESENTS AND WARRANTS THAT THE PREMIUM SERVICES AND ADDITIONAL SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER. EXCEPT FOR THE EXPRESS SERVICES WARRANTY SET FORTH IN THE FOREGOING SENTENCE, THE LICENSED PROGRAM, DOCUMENTATION, AND DATABASE ARE LICENSED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MED USA DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE DATABASE, LICENSED PROGRAM, PREMIUM SERVICES, ADDITIONAL SERVICES, ANY OTHER SERVICES PROVIDED BY MED USA UNDER THIS AGREEMENT, OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, MED USA DOES NOT WARRANT THE COLLECTABILITY OF ANY ACCOUNTS RECEIVABLE OR THE RECOVERY OF ANY AMOUNTS UNDER ANY OF THE ACCOUNTS RECEIVABLE OF PROVIDER.
29. Bank Account. Provider agrees to designate or establish and to maintain a bank account, or in the alternative, a lock box account, for all purposes associated with this Agreement, including Payment Withdrawals (the “Bank Account”); except that Provider may, at its option, designate or establish and maintain a separate bank account solely for the purposes of a Payment Withdrawal (the “Payment Account”). The Bank Account and, if applicable, the Payment Account, must be at a federally-insured bank which is reasonably acceptable to Med USA. All receipts for the Medical Services shall be deposited into the Bank Account. Med USA and Provider agree that Med USA shall not have signatory authority, nor any right of ownership in the Bank Account or Payment Account, or in the funds deposited therein, except to the extent that Med USA is authorized to withdraw funds as Payment Withdrawals as provided in this Agreement. Provider agrees that it shall be responsible for all charges associated with the Bank Account and Payment Account. Provider also agrees that it shall designate the Bank Account, or, if applicable, the Payment Account, for the purposes of a Payment Withdrawal, and to take all necessary actions to assure Med USA that the Bank Account or Payment Account, as the case may be, shall have an amount sufficient to cause the bank to honor Payment Withdrawals in payment of Med USA’s compensation, at the times and amounts provided for in this Agreement. Provider agrees to promptly notify Med USA of any changes in the Bank Account or Payment Account, including, but not necessarily limited to, the creation of new or replacement accounts (which such changed accounts shall then be deemed the Bank Account or Payment Account, as applicable, for purpose of this Agreement). In the event of a failure to notify Med USA of any such change, Provider shall indemnify and hold Med USA harmless from any loss, cost or expense which arises out of, or is in any way incurred from, the change. Provider’s failure to maintain sufficient funds in the Bank Account and, if applicable, the Payment Account, in accordance with the foregoing shall be a Material Breach of this Agreement.
30. Non-Employment During the term of this Agreement, and for a one (1) year period commencing upon the effective date of termination of this Agreement, each party agrees not to intentionally contract with, employ, directly or indirectly, including through any third-party rendering services on behalf of such party, any employees of the other or its parent, affiliates, or subsidiaries without written consent of the other party. Provider and Med USA agree and acknowledge that each has incurred significant expense in hiring, training, and further developing its employees, and that the damage that would be incurred by a breach of this section would be significant. However, it would likewise be difficult, if not impossible, to determine the amount of damages that would be incurred by the non-defaulting parties, including, but not limited to, lost profits, loss of customers, and loss of goodwill. Accordingly, and in an effort to establish a reasonable amount to compensate the non-defaulting party for a breach of this section, Provider and Med USA agree that if either party defaults under this section, the defaulting party shall pay to the non-defaulting party as liquidated damages and in lieu of any other award or damages, the amount of twenty-five thousand dollars ($25,000.00). The parties agree and acknowledge that despite the difficulty in accurately estimating the actual damages that might be incurred the liquidated damages provision in this Agreement is intended by the parties to be a reasonable forecast of just compensation in the event of a breach of the provisions of this section. The parties further agree and acknowledge that the liquidated damages are not intended to be penal or punitive in nature.
31. Operating Procedures Provider acknowledges and agrees that Med USA (a) is not responsible for, and has no involvement or participation in, the gathering, preparation, or development of Provider Content, and (b) is not responsible for validating, verifying or determining the accuracy of the Provider Content. Provider covenants and agrees that all Provider Content, including all medical records, provided or made available by Provider shall be accurate, complete, legible, and not misleading. Provider releases Med USA from liability for any coding or other errors resulting from inaccurate, incomplete or illegible Provider Content. Regardless of whether Med USA provides billing and collection services to Provider, Provider acknowledges and agrees that it will be responsible for all matters related to Provider's practice, including but not limited to Provider's billings, collections, scheduling, medical records, including electronic medical records, refunds of Refundable Amounts, accounts payable, payroll, checkbook and accounts receivable. Specifically, but without limiting the foregoing, all unpaid claims or outstanding balances, whether billed on paper or electronically through Med USA, are the sole responsibility of Provider. With respect to Refundable Amounts, notwithstanding anything to the contrary in this Agreement, Provider acknowledges and agrees that it has the responsibility to refund all Refundable Amounts to the appropriate payees in accordance with the Medical Services-Related Laws, and Provider covenants that it shall prepare, sign and send its own check, or, if Med USA prepares Provider checks for such purpose as part of Premium Services, a Provider check prepared by Med USA, within the time and as provided by the Medical Services-Related Laws. Any cost associated with the subject matter of this section will be the sole responsibility of Provider and is not included in the Fees. Provider agrees to indemnify and hold Med USA harmless from and against any liability, cost or expense (including reasonable attorneys’ fees) related to or arising out of matters related to Provider’s practice, including, without limitation, failure to properly report and pay any Refundable Amounts within the applicable deadlines and in accordance with the other terms set forth in the Medical Services-Related Laws. From time to time during the term of this Agreement, Med USA shall have the right to request written certification from an officer of Provider (“Certification Request”) that all refunds and/or overpayments, including Refundable Amounts, have been timely reported and appropriately repaid, or Provider will take all action necessary to timely report and repay all such refunds and overpayments, and in either event, that Provider is in compliance with all applicable reporting and reimbursement requirements (“Provider Certification”). Provider Certification shall be delivered to Med USA within thirty (30) days of Med USA’s request. If Provider Certification is not timely delivered, then, notwithstanding any other terms of this Agreement to the contrary, Med USA may, at its option, and not as an exclusive remedy, immediately notify Provider that it will terminate this Agreement as soon as reasonably possible but in no event later than thirty (30) days, and accordingly, Provider will be required to take over its own billing and collection services or transition to a new billing and collection company.
32. Provider and Med USA Covenants.
a. Exclusivity. Provider acknowledges and agrees that its relationship with Med USA is an exclusive relationship. Accordingly, Provider shall not directly, or through any other person or entity, whomsoever, during the term of this Agreement, render, perform, or have rendered or performed by any other person or entity, any services that are the same or similar to any of the Premium Services or any other Med USA services, or develop or have developed, license, or otherwise use or acquire any software that is the same and similar to the Licensed Program, nor have a proprietary interest in, or serve as a consultant to or in any other capacity, for any firm, other than Med USA, which provides products or services that are the same or similar to the Licensed Program or Premium Services, in each case within the state of Utah, or in any other state in which Med USA is at that time engaged in business.
b. Use of Provider Information. Med USA agrees that it shall not at any time use for the benefit of any party, other than Provider, or disclose to any person except appropriate representatives of Provider, any of the confidential information or knowledge which is acquired during the term of this Agreement relative to Provider’s fee structure, internal compensation, managed care, payment, collection, overpayment or reimbursement practices, or facility contracting strategies, or similar information that would commonly be understood to be confidential, or any confidential medical information regarding Provider’s patients received in the course of performing the Premium Services, if applicable, except as required to perform its services under this Agreement.
c. Liaison. Provider agrees to appoint a representative to serve as a liaison of Provider for each facility from which Medical Services are performed. The liaison shall be the primary point of contact for Med USA personnel in respect to all communications with Provider at that facility, and Provider agrees that all communications regarding the services to be performed under this Agreement may be conducted through that provider liaison. Provider further agrees that Med USA may rely on all communications from the liaison and take action based upon communications with the liaison.
d. Billing Information Form. Provider agrees to use its best efforts to provide the Billing Information required by Med USA, in the form and manner reasonably requested from time to time by Med USA, and further to conform to such operating policies and procedures as may be provided by Med USA. Provider shall be responsible, at its own expense, for the processing of any Billing Information or other data, including coding.
e. Notice of Errors. Provider agrees to promptly review, after receipt, all reports, notices and records provided by Med USA, and to identify and promptly notify Med USA of any and all inaccuracies, discrepancies, and/or problems of any kind relative to such reports, notices, and records.
f. Information Requests. Provider agrees to deliver to Med USA within five (5) of Provider’s working days of receipt of each inquiry or request by Med USA for clarification of any Billing Information, all information which is reasonably necessary to respond to such inquiry or request.
g. Health Plan Contracts. If applicable, Provider agrees to notify Med USA of and provide copies of all health plan contracts and agreements applicable to the Medical Services which are the subject of this Agreement. Provider agrees to maintain copies of such contracts in Provider’s facilities. Provider acknowledges and agrees that Med USA shall, unless and until it is notified by Provider to the contrary, accept and conform its services to notifications from third party payers of write-off or discount information; and that it shall be the responsibility of Provider to identify inaccuracies and to notify Med USA thereof.
h. Provider Received Payments. Provider agrees to report to Med USA all payments for the Medical Services which are the subject of this Agreement which are received by Provider in any way other than through Med USA. All such receipts shall be deposited into the Bank Account.
33. Default and Remedies. Each of the following events shall constitute a material breach of this Agreement by Provider (a “Material Breach”):
a. If the Provider shall file a petition in bankruptcy or insolvency or for reorganization under any bankruptcy act, or shall voluntarily take advantage of any such act by answer or otherwise, or shall make an assignment for the benefit of creditors.
b. If voluntary proceedings under any bankruptcy law or insolvency act shall be instituted against Provider or if a receiver or trustee shall be appointed of all or substantially all of the property of Provider, and such proceedings shall not be dismissed or the receivership or trusteeship vacated within thirty (30) days after the institution or appointment.
c. If Provider shall fail to pay Med USA any amounts owing under this Agreement, including, without limitation, any Fees and expenses.
d. If any representation or warranty by Provider under this Agreement is determined not to be true and correct, at any time.
e. If Provider shall fail to perform or comply with any of the other terms of this Agreement not otherwise addressed in this section, and if the nonperformance shall continue for a period of thirty (30) days after notice thereof by Med USA to Provider, or, if the performance cannot be reasonably had within the thirty-day period, Provider shall not in good faith have commenced performance within the thirty-day period and/or shall not diligently proceed to completion of performance.
f. If Provider shall attempt to transfer to or in any way assign its rights or duties under this Agreement to any other person or party or legal entity.
g. If Provider violates any other material provision of this Agreement, or fails to perform any of its obligations under this Agreement.
a. Upon the occurrence of a Material Breach, or if Med USA fails to perform any of its material obligations under this Agreement (“Med USA Default”), and such Material Default or Med USA Default has not been cured within sixty days after written notice of such default, then at the non-defaulting party’s option, this Agreement, or the Premium Services and/or Additional Services to which the breach pertains, may be terminated by the non-defaulting party. If the Material Breach is a failure to pay any amounts due under this Agreement, then the time to cure shall be ten days and not sixty days as provided in this paragraph. Further, notwithstanding the forgoing, neither Med USA nor Provider shall be obligated to give notice of a default more than two times during any twelve consecutive month period. Either party may terminate this Agreement by giving notice to the other party at least ninety (90) days prior to the expiration of the Initial Term, or any subsequent renewal term, and such termination shall be effective on the last day of the Initial Term, or any subsequent renewal term, as applicable. This Agreement, and each of the Premium Services and Additional Services, may also be subject to early termination as otherwise provided in this Agreement. Upon termination of this Agreement, or any Premium Services or Additional Services, by Med USA, Med USA may take any action permitted by law to collect all amounts due to it pursuant to this Agreement. Termination of this Agreement shall automatically terminate the Premium Services and Additional Services, subject to the Wind Down Period, may be applicable to the Premium Services.
b. Upon termination of this Agreement and payment in full of all Fees and other amounts owing to Med USA, unless such termination is for a Material Breach or a Material Change, Med USA shall, within a reasonable time after termination, deliver to Provider an electronic copy of all Accounts Receivable to the extent such accounts are included in the Database as part of Premium Services, setting forth debit and credit balances, in an industry standard electronic format, including data layout and/or translation tables. If payment in full of all Fees and other amounts owing to Med USA has not occurred, or if termination is for a Material Breach, Med USA shall have no obligation to deliver to Provider an electronic copy of all Accounts Receivable as provided in the foregoing sentence. Upon delivery of such electronic copy, Provider acknowledges that Med USA shall have no further obligation of any nature to Provider with respect to Provider Content, Billing Information, Accounts Receivable, or any data included in the Database. Med USA reserves the right in its sole discretion to retain copies of Billing Information for up to seven years.
35. Material Change.
a. If any of the following events occur,
i. A breach of any representation or warranty, or protective covenant of Provider for the benefit of Med USA; or
ii. A change in legislation, applicable law, or market conditions, the effect of which, in the reasonable judgment of Med USA, is likely to materially increase the costs or Med USA’s risk of providing Premium Services, or prohibit provision of the Premium Services as then-currently provided by Med USA under this Agreement; or
iii. A material change by Provider of the fundamental aspects of its practice (such as, but not necessarily limited to, its practice location, the types of services provided, its mix of payers, quality or type of patient demographics, method of documenting services provided, etc.) or Provider’s business; or
iv. A material change (whether an increase or decrease) in the number of monthly charges for Medical Services for which Premium Services are provided; or
v. A change in other market conditions which Med USA determines, in its sole discretion, are material, including any change in the data set forth on the report entitled “Practice Information and Analysis” as provided to Med USA; or
vi. Any back-up documentation, Provider Content, or other information relating to any accounts receivable is inaccurate, incomplete, insufficient, or misleading; or
vii. Closure; or
viii. An Exclusivity Breach,
a material change (“Material Change”) shall be deemed to have occurred. Upon the occurrence of a Material Change, and in addition to any other rights and remedies available to Med USA, including those specifically provided for in this Agreement, Med USA may terminate this Agreement, or, at its option, only the Premium Services or Additional Services affected by the Material Change. Such termination shall be effective upon the date designated by Med USA in its notice of termination, but not less than ninety (90) days after the delivery of the notice of termination. The term “Closure” means the closure or sale of Provider’s medical practice. The term “Exclusivity Breach” means a failure by Provider to timely report to Med USA all Medical Services and/or permit Med USA to exclusively bill and render accounts receivable services for all Accounts Receivable in respect to all Medical Services during the term of this Agreement, including the Wind Down Period, if applicable.
36. Miscellaneous Provisions.
a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Utah, without giving effect to any conflicts or choice of laws provisions. Provider acknowledges that by entering into this Agreement, and accepting the services provided under this Agreement, Provider has transacted business in the State of Utah. By transacting business in the State of Utah by agreement, Provider voluntarily submits and consents to, and waives any defense to the jurisdiction of courts located in Salt Lake County, State of Utah, as to all matters relating to or arising from this Agreement.
b. Attorneys’ Fees. If any action is brought by either party to this Agreement against the other party regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees, costs, and expenses of litigation. Provider agrees to pay all costs of collection, including reasonable attorney’s fees and costs, of any amounts owing under this Agreement which are not paid when due.
c. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, unless it is reasonably assumed that the parties would not have entered into this Agreement without the invalid provisions.
d. No Assignment. Provider agrees that it will not assign, sublicense, transfer, pledge, lease, rent, or share the Licensed Program, Database, Documentation, this Agreement, or any of Provider rights under this Agreement without the prior written consent of Med USA, which may be withheld in Med USA’s sole discretion. Med USA may assign this Agreement at any time, including an assignment in connection with a merger, sale of assets, or otherwise.
e. Waiver. The waiver by either party of, or the failure of either party to take action with respect to, any breach of any term, covenant or condition contained in this Agreement shall not be deemed to be a waiver of such term, covenant or condition, or subsequent breach of the same, or any other term, covenant or condition contained in this Agreement.
f. Force Majeure. Except for the obligation to make payments, nonperformance by either party will be suspended or excused to the extent performance is rendered impossible due to causes beyond such party’s reasonable control and without negligent or willful misconduct, including, acts of God, natural disasters, terrorist acts, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment (“Force Majeure”). Neither party shall be relieved from performing any pending obligations under this Agreement when the existence of Force Majeure has been eliminated.
g. Headings; Use of Terms. The headings contained in this Agreement are for reference only and will not affect in any way the meaning of or interpretation of this Agreement. Any use of the term “including” shall be deemed to mean “including without limitation.”
h. Entire Agreement. This Agreement, including these Terms and Conditions, constitutes the entire agreement of the parties relative to the subject matter of this Agreement. This Agreement specifically supersedes any prior written or oral agreement between the parties relating to the subject matter of this Agreement. This Agreement is binding upon, and inures to the benefit of, and is enforceable by Med USA, Provider and their respective legal representatives, assigns and successors in interest. Provider may not assign this Agreement, or any of its rights, or delegate any of its duties, under this Agreement without the prior written consent of Med USA. Med USA may unilaterally make amendments or changes to this Agreement at any time as may be necessary to comply with (i) amendments to applicable law, including statutes, regulations or sub-regulatory guidance; (ii) any changes in ICD or CPT codes or licensing agreements; or (iii) as otherwise determined necessary by Med USA. Any such amendment or change shall not change or otherwise modify the Premium Services (except to the extent required by such applicable changes) or the Fees payable. Any such amendment or change will be implemented thirty (30) days after Med USA provides notice of such changes to Provider, unless within that 30-day period, Provider notifies Med USA of its objection to the amendment or change. If Provider objects to the amendment or change and Provider and Med USA are not able to come to an agreement on amended terms within thirty (30) days of Provider objection, Provider or Med USA shall have the right to terminate this Agreement by delivering to the other Party written notice that it is terminating the Agreement. Med USA and Provider acknowledge that they are duly authorized by appropriate corporate action to enter into this Agreement and that this Agreement is being signed by duly authorized agents. All schedules and exhibits referenced in this Agreement are incorporated into this Agreement by reference.
i. Further Assurance. Med USA and Provider agree, in good faith, to execute and deliver after the date hereof, without additional consideration, such further assurance, instruments and documents, and to take such further actions as the other may reasonably request in order to fulfill the intent of this Agreement and the relationship for services contemplated hereby.
j. Relationship of the Parties. Nothing in this Agreement shall be construed to create a partnership, or joint venture, or any other form of association, for tax purposes or otherwise, between Med USA and Provider. Med USA is an independent contractor.
k. No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of Med USA and Provider and is not intended to benefit any third party, including any patient of Provider or any Individual Provider, except that the American Medical Association (AMA) shall be a third-party beneficiary as provided in the AMA Distribution License Agreement. No third party other than the AMA may claim any right or benefit under or seek to enforce any provision of this Agreement.
l. Injunctive Relief. The parties acknowledge that a violation of Sections 12, 14, 15, 16, 25, 29, and 31.a of this Agreement shall cause irreparable injury to Med USA, and the parties agree that Med USA shall be entitled to seek temporary and preliminary injunctive relief in a court of competent jurisdiction, without the necessity of proving actual damages or posting a bond, to prevent such violation.
m. Survival. The provisions of Sections 1, 3, 4, 12, 14, 15, 16, 18, 19, 20, 23, 24, 25, 27, 28, 29, 33, and 35 of this Agreement shall survive termination of this Agreement. Any and all accrued liabilities shall survive any termination or expiration of this Agreement.