ELECTRONIC MEDICAL RECORDS PROVIDER AGREEMENT
THIS IS A LEGALLY BINDING AGREEMENT between you (hereinafter “You” or “Provider of Record”) and EHRZip., a California corporation (hereinafter “We” or “Us”). You and we are collectively referred to as the “Parties.”
BY CLICKING “I AGREE,” OR BY OTHERWISE REGISTERING FOR AN ACCOUNT, OR BY ACCESSING OR USING THE SERVICES (DEFINED BELOW), YOU ARE ENTERING INTO THIS ELECTRONIC MEDICAL RECORDS PROVIDER AGREEMENT (THIS “AGREEMENT”) AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Please read this Agreement carefully. Do not sign up for an account or use the Services if you are unwilling or unable to be bound by this Agreement.
For purposes of this Agreement, the terms set forth below have the meanings assigned to them below. Terms not defined below or in the body of this Agreement (whether or not capitalized) have the definitions given to them in Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and the Security Rule, as amended (hereinafter “HIPPA”).
“Administrative Rights” means the rights to control and direct the use of Provider’s account, including the rights to authorize and limit the access rights to the Services and to Records by other Authorized Users.
“Authorized Patient” means any patient for whom you, or an Authorized Worker have identified as authorized to access the Services.
“Authorized Referral Provider” means any health care provider that you have identified in your account as authorized to access the Services, to whom You or an Authorized Worker refer a Consenting Patient.
“Authorized User” means any You, any of your Authorized Workers, any Authorized Patient, and any Authorized Referral Provider who you have authorized to use the Services in conjunction with your account.
“Authorized Worker” means those members of your Authorized Users that who you have identified in your account as authorized to access the Services.
“Consent” means the consent to, or authorization by, an Authorized User of the Services allowing us to take actions described under this Agreement. The Consent of an Authorized User may be given by electronic communication to us and/or by use of the Authorized User’s registering for an account or using the Services.
“Consenting Patient” means any patient who has given their Consent to having their Protected Health Information, disclosed to an Authorized User.
“Credentials” means any unique identifier, password, token, credential, any combination thereof, or other means we may utilize from time to time for authorizing access to all or any portion of the Services.
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E, as amended.
“Protected Health Information” has the meaning given it in the Privacy Rule.
“Provider” has the same meaning as “health care provider” given in 45 CFR §160.103.
“Provider of Record” the Provider in whose name your account is established, who is the owner of all of Your Records Authorized and Authorized User accounts. The Provider of Record may be changed in accordance with Section XIII.
“Security Rule” means the Security Standards for the Protection of electronic Protected Health Information at 45 CFR Part 160 and Part 164, Subparts A and C, as amended.
“Services” means our electronic health record services being provided hereunder.
“Term” means the initial term and all renewal terms of this Agreement.
“Worker” means the Provider of Record’s employees, volunteers, trainees, authorized agents, and other persons whose conduct, in the performance of work for Provider, is under the direct control of such Provider, whether or not they are paid by the Provider.
“Your Health Records” means and Protected Health Information that an Authorized User inputs, uploads, or provides with relation to the Services.
We grant to You, as the Provider of Record, and You accept, a non-exclusive, personal, non-transferable (except as expressly permitted elsewhere herein), revocable, limited license to use any computer software furnished by us for access to or use of the Services during the Term, and a limited right to access and use the Services, subject to your full compliance with the terms and conditions set forth in this Agreement. The purpose of the Services is to store Your Health Records and (i) make them available to you and your Authorized Users for any legal purpose, including treatment, payment and health care operations; (ii) to facilitate the sharing of individuals’ health information among Authorized Users and other authorized parties, and (iii) to make health information available to your Authorized Patients through the Patient Portal. You may make Your Health Records accessible to other Authorized Users of the Services. You authorize us, as your business associate, to use and disclose Your Health Records to Authorized Users and You are responsible for ensuring that the disclosure and your use of Your Health Records is consistent with the relevant legal restrictions and regulations. You acknowledge that once access rights are granted to another Authorized User, we have no control over the uses and disclosures that such Authorized User makes of Your Health Records. You further acknowledge that the Services only provide storage of, and access to, Your Health Records and that You are solely responsible for ensuring the accuracy and completeness of Your Health Records.
Fees and Charges
Service Fees. You will pay to us our standard service fee (the “Service Fee”) at our then current rates, for the Services to which you and your Authorized Workers have access during the Term of this Agreement. You also agree to pay, at our then current rates, for all goods, services, or features that you utilize, or otherwise request from us and that are not included in our standard services (“Miscellaneous Charges”). We will notify you of the Service Fee when you are granted access to the Services, and we will notify you of the applicable Miscellaneous Charges before performing services or enabling features to which a Miscellaneous Charge will apply. We reserve the right to change the Service Fee and Miscellaneous Charges, or to add new fees or charges, in which event, we will give you notice in advance of any such changes, and an opportunity to cancel. Current fees and charges may be obtained by calling 916-672-6622. Payment. Following any introductory or trial period, the Service Fees and any Miscellaneous Charges must be paid monthly in advance or access to the Services may be terminated for non-payment. Late Charges. Fees not paid within ten (10) business days of the due date are subject to a late charge of five percent (5%) of the amount owing and interest thereafter at the rate of one and one-half percent (1½%) per month on the outstanding balance, or the highest amount permitted by law, whichever is lower. Failure to pay fees within ten (10) days of the due date may result in termination of access to the Services without notice. A reconnection fee equal to one (1) month’s Service Fee shall be assessed to re-establish connection after termination due to non-payment. Taxes. All charges and fees shall be exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes now in force or enacted in the future, and you agree to pay any tax (excluding taxes on our net income) that we may be required to collect or pay now or at any time in the future and that are imposed upon the sale or delivery of items and services purchased under this Agreement. The amount we charge you for a Service may include certain taxes or charges applicable thereto your purchase. If any tax or charge applicable is not charged by us, you acknowledge that you are solely responsible for paying such tax or other charge. Other Charges. You are responsible for any charges you incur to use the Services, such as telephone, internet, and equipment charges. Payment Information; Method of Payment. By providing payment information to us, you hereby represent and warrant that you are authorized to use the payment method you provide, that such information is accurate, and that we are authorized to charge you for the applicable Services using the established payment method and the information you provided. You are solely responsible for notifying us of any changes to your payment information and failure to do so may result in a disruption of services.
Authorized User Access to the Services.
a. Provider of Record Access
The account must be established in the name of the Provider of Record. You agree that your use of the Services is subject to verification by us of your identity and credentials as a health care provider, and to your ongoing qualification as such. You agree that we may use and disclose your personal information for such purposes, including making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. You agree that we may terminate your access to, or use of, the Services at any time if we are unable at any time to determine or verify your qualifications or credentials. Although You may delegate Administrative Rights to one or more Authorized Users, You remain responsible for all use of the Services by your Authorized Users. Although one of your Authorized User’s may have registered for an account to which you have granted Administrative Rights, only You as the Provider of Record is entitled to any of the rights, remedies or benefits under this Agreement and control over access to the Administrative Rights. With your Consent, we will make Your Health Records available to any Authorized User you designate. You may revoke your Consent with respect to any other Authorized User at any time. While your Consent is in effect, an approved Authorized User may view, edit or otherwise alter any health record you have designated for his or her use/access, based upon the access and permissions you authorize for that User. If you revoke your Consent, the approved Authorized User may continue to have the ability to view the health record in the form in which it existed at the time you revoked your Consent, but will not be able to view changes made to the record thereafter, and will not be able to edit the record. You and your Authorized Users are fully responsible for the information in any chart that you share. You or your Authorized Users should not share patient information that violates any state or federal laws, such as information relating to HIV testing. In any event, but especially in cases of potential fraud, misuse or abuse of the Services, we reserve the right, in our sole judgment, to revoke, remove, cancel or deny continued access to any health record or the Services.
b, Authorized Worker Access
The Provider of Record may authorize access to the Services to Authorized Workers who sign up for an account authorized by the Provider of Record. Generally Authorized Workers fall into three categories, administrators, authorized providers and staff. Administrators are the overseers of the Provider of Records account, and are responsible for managing the Authorized User accounts and granting or limiting access. Administrative Rights should be carefully controlled by the Provider of Record. Administrators will be given Administrative Rights only when authorized by the Provider of Record. Authorized providers are health care providers who will generally have access to view all of a patient’s records and enter, modify, and sign SOAP notes. Authorized staff will generally have more limited access a patient’s records and will not be able to sign off on SOAP notes. It is the responsibility of the Provider of Record to promptly terminate authorization and access when an Authorized Worker is no longer supposed to have access to the Services.
c. Authorized Referral Provider Access
The Provider of Record may authorize temporary access to the Services to Authorized Referral Providers through a web-based referral portal (a “Referral Portal”). Authorized Referral Providers must be expressly authorized by the Provider of Record and must have their own access account. Such access may not include Administrative Rights and Referral Providers may not be permitted to or modify the Provider of Record’s patient records. You are solely responsible for the information that you make available through a Referral Portal.
d. Authorized Patient Access
You may make available to patients portions of their medical records through a web-based personal health record portal that we operate on your behalf (a “Patient Portal”). You are responsible for granting Patient Portal access privileges to your patients, either on an individual basis or for your entire patient population (with each patient being granted access only to their own records). You are solely responsible for the information that you make available through a Patient Portal.
Conditions for Use of Services
By signing up for access to the Services, you agree that:
Cooperation.You will cooperate with us in the administration of the Services.
Indemnification.You hereby agree to indemnify, defend, and hold harmless us and other Authorized Users, and our and their respective affiliates, officers, directors, employees and agents, from and against any claim, cost or liability, including reasonable attorneys’ fees, arising out of or relating to: (a) the use of the Services by you or your Authorized Users; (b) any breach by you or your Authorized Users of any representations, warranties or agreements contained in this Agreement; (c) the actions of any person gaining access to the Services under Credentials assigned to you or your Authorized Users; (d) the actions of anyone using Credentials assigned to you or any member of your Authorized Users that adversely affects the Services or any information accessed through the Services; and (e) your negligent or willful misconduct, or that of your Authorized Users. Your indemnifications obligations in this Agreement are cumulative, and are not intended to, nor do they, limit your indemnification obligations elsewhere in this Agreement or at law, even if such obligations arise or are occasioned or triggered by a single assertion, claim, circumstance, action, event or transaction.
Prohibited Uses.You agree that you and your Authorized Users will not, nor attempt to, (i) gain unauthorized access to the Services, (ii) alter or destroy information contained in the Services, except in accordance with accepted practices; (iii) use the Services in a manner that interferes with other Authorized Users’ use of the Services; (iv) circumvent any technical measures we have put in place to safeguard the Services or the confidentiality, integrity or accessibility of any information housed thereon, or any technical measures we have put in place to restrict access to the Services.
Safeguards.You agree to implement and maintain appropriate administrative, physical and technical safeguards to prevent unauthorized access to the Services and the information contained therein. Such safeguards shall comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule. You will immediately notify us of any breach or suspected breach of the security of the Services of which you become aware, or any unauthorized use or disclosure of information within or obtained from the Services, and you will take such action to mitigate the breach, suspected breach, or unauthorized use or disclosure of information within or obtained from the Services as we may direct, and will cooperate with us in investigating and mitigating the same. Except as required by law, You will not permit any third party other than Authorized Users to use or access the Services without our prior written agreement.
Responsibility for Misuse by Other Authorized Users.You acknowledge that in granting access to the Services, we will rely on the assurances of the recipients of the information as to (i) their identity and credentials, (ii) the purposes for which they are accessing the system, and (iii) the nature and extent of the information to which they will have access. You acknowledge that, while the Services will contain certain technical safeguards against misuse of the Services, it will rely to a substantial extent on the representations and undertakings of Authorized Users of the Services. You agree that we will not be responsible for any unlawful access to or use of Your Health Records by any Authorized User resulting from the Authorized User’s misrepresentation to us, or breach of the Authorized User’s Authorized User agreement or our Policies and Procedures.
Specially Protected Information.We apply the standards of the Privacy Rule in permitting access to the Services. You agree that you are solely responsible for ensuring that Your Health Records may properly be disclosed to Authorized Users and you: (i) will not make available to other Authorized Users through the Services any information in violation of any restriction on use or disclosure (whether arising from your agreement with such Authorized Users or under law); (ii) obtain all necessary consents, authorizations or releases from individuals required for making their health information available through the Services for the purposes set forth herein; (iii) include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Services; and (iv.) not place in the Services any information that you know or have reason to believe is false or materially inaccurate.
You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Records, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Records.
Business Associate Provisions
In maintaining, using and affording access to Your Health Records in accordance with this Agreement, we will:
- Not use or disclose such information except as permitted or required by this Agreement or as required by law;
- Use appropriate safeguards and comply, where applicable, with the Security Rule with respect to electronic Protected Health Information, and to prevent the use or disclosure of such information other than as provided for by this Agreement;
- Report to you any use or disclosure of such information not provided for by this Agreement of which we become aware, including breaches of unsecured protected health information as required by §164.410 of HIPAA, and any security incident involving the information of which we become aware;
- In accordance with §§164.502(e)(1)(ii) and 164.308(b)(2) of HIPAA, as applicable, ensure that any subcontractors that create, receive, maintain or transmit Protected Health Information on our behalf agree to the same restrictions, conditions, and requirements that apply to us with respect to such information; and we obtain satisfactory assurances that such subcontractors will appropriately safeguard such information (it being understood, for the avoidance of doubt, that other Authorized Users of the Services are not our subcontractors);
- Make available Protected Health Information to you as necessary to satisfy your obligations under §164.524 of the Privacy Rule;
- Make available Protected Health Information for amendment and incorporate any amendments to Protected Health Information in accordance with §164.526 of the Privacy Rule;
- Maintain and make available such information required to provide an accounting of disclosures in accordance with §164.528 of the Privacy Rule;
- To the extent that we are to carry out your obligations under the Privacy Rule, comply with the requirements of the Privacy Rule that apply to you in the performance of such obligations;
- Make our internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by us on your behalf, available to the Secretary of the United States Department of Health and Human Services for purposes of determining your compliance with the Privacy Rule; and
- Allow you to terminate this Agreement if You determine that We have violated a material term of these business associate provisions.
- At termination (other than a “Mandatory Termination”) of this Agreement, upon receipt of a written request made by the Provider of Record, We will allow the Provider of Record 30 days access to Your Health Records through the Service (the “Transition Period”). Such access will be on a “read only” basis so that the Provider or Record may copy, but not modify the records. Upon expiration of the Transition Period We will, cancel such access and if feasible, destroy all Protected Health Information received from, or created or received by us on your behalf that we still maintain in any form, and retain no copies of such information; or, if such return or destruction is not feasible, extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. You acknowledge that if you have approved, in accordance with the terms of this Agreement, other Authorized Users of our services (such as your patients, other providers, clinical laboratories or pharmacies) or their respective business associates, we may continue to make such information and data available to such Authorized Users pursuant to the terms of the agreements we have with them.
Disclaimer, Exclusion of Warranties, and Limitation of Liability
- Carrier Lines. YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICES WILL BE PROVIDED OVER VARIOUS COMMUNICATIONS LINES, AND THAT INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR, OR RELATING TO, THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.
- No Warranties. ACCESS TO THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION IN THE SERVICES, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF WE HAVE BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. WE DISCLAIM ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SERVICES.
- Conditions for Breach. We will not be deemed to be in violation of this Agreement unless you have first given us written notice specifying the nature of the default, and we have failed within thirty (30) days of receipt of the notice either to cure the default or, if cure within such period is not practicable, to be diligently proceeding to cure the default.
- Other Authorized Users. YOU ACKNOWLEDGE THAT OTHER AUTHORIZED USERS HAVE ACCESS TO AND ARE USING OUR SERVICES AND THE ACTIONS OF SUCH OTHER AUTHORIZED USERS ARE BEYOND OUR CONTROL. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON THE SERVICES RESULTING FROM ANY AUTHORIZED USER’S ACTIONS OR FAILURES TO ACT.
- Unauthorized Access; Lost or Corrupt Data. WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES OR EQUIPMENT BY PERSONS USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE SERVICES.
- Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AGGREGATE FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.
You will obtain and maintain such policies of general liability, errors and omissions, and professional liability insurance with reputable insurance companies as is usually carried by persons engaged in your business covering the term of this Agreement.
Term; Modification; Suspension; Termination
- Term. The initial term of this Agreement shall commence on the date You “sign up” for the Services and automatically continue monthly thereafter until terminated as provided in this Section.
- Termination upon Notice. We or You may terminate this Agreement at any time without cause upon thirty (30) days’ prior written notice to the other Party.
- Modification. We may update or change the Services or the terms set forth in this Agreement from time to time and recommend that you review the Agreement on a regular basis. You understand and agree that your continued use of the Services after the Agreement has been updated or changed constitutes your acceptance of the revised Agreement. Without limiting the foregoing, if we make a change to the Agreement that materially affects your use of the Services, we may post notice or notify you via email or our website(s) of any such change.
- Mandated Termination, Suspension or Amendment as a Result of Government Action. Notwithstanding anything to the contrary in this Agreement, we have the right, on notice to you, immediately to terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law; (d) if a finding or stipulation is made or entered into that You have violated any standard or requirement of federal or state law or regulation relating to the privacy or security of health information is made in any administrative or civil proceeding; (e) you cease to be qualified to provide services as a health care professional, or we are unable to verify your qualifications as such (any termination on the above stated grounds being a “Mandatory Termination”)
- Suspension of Access. We may suspend access to the Services by you or any member of your Authorized Users immediately pending your cure of any breach of this Agreement, or in the event we determine in our sole discretion that access to or use of the Services by you or the member of your Authorized Users may jeopardize the Services or the confidentiality, privacy, security, integrity or availability of information within the Services, or that you or the member of your Authorized Users has violated or may violate this Agreement or our Policies and Procedures, or has jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the Services with any Credentials assigned to you or a member of your Authorized Users. We may terminate the access of any member of your Authorized Worker upon termination or change in status of his or her employment with you. Our election to suspend the Services shall not waive or affect our rights to terminate this Agreement as permitted under this Agreement.
- Obligations after Termination. Upon termination of this Agreement, you will (i) cease all use of the Services, (ii) pay the outstanding balance of any fees due to us, and (iii) remove all software provided under this Agreement from your computer systems. All provisions of the Agreement which, by their nature, should survive termination shall survive termination.
The interpretation of this Agreement and the resolution of any disputes arising under this Agreement shall be governed by the laws of the State of California, without regards to its conflicts of laws provisions. If any action or other proceeding is brought on or in connection with this Agreement, the venue of such action shall be exclusively in the City and County of Sacramento, California.
- EXCEPT FOR CLAIMS FOR ANY FAILURE TO PAY FOR THE SERVICES, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE SUBJECT TO FINAL AND BINDING ARBITRATION GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. §§ 1 ET SEQ.). THE ARBITRATION SHALL BE CONDUCTED BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) THEN IN EFFECT, AS MODIFIED BY THIS AGREEMENT, AND WILL BE ADMINISTERED BY THE AAA. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF IN CONNECTION WITH AN ARBITRABLE CONTROVERSY, BUT ONLY UPON THE GROUND THAT THE AWARD TO WHICH THAT PARTY MAY BE ENTITLED MAY BE RENDERED INEFFECTUAL WITHOUT SUCH PROVISIONAL RELIEF.
- THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR PRIVATE ATTORNEY GENERAL IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIM WITH YOUR CLAIMS OR OUR CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY REPRESENTATIVE, CLASS, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
- Any part of this agreement to arbitrate that shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision of this agreement to arbitrate, and such other provisions shall remain in full force and effect.
Amending Provider Information; Assignability of this Agreement; Assurances
- Amending Provider Information. If you are a Provider of Record, you are required to submit to us all information necessary to confirm yourself as the Provider of Record, and maintain the accuracy of such information, in a timely fashion, during the term of this Agreement. We shall be entitled to rely on all information you submit to us. In the event that you contact us and assert that you have authority to act on behalf of a Provider or any of its account(s) or data, you hereby agree to submit to us such written certifications, assurances (which may include a written opinion of your counsel identifying us as beneficiaries entitled to rely on such opinion), instruments or judicial process as we, in our sole discretion, may request.
- Assignments. This Agreement may be transferred in its entirety by a Provider of Record in connection with the sale, transfer or reorganization of all or substantially all of the practice or business to which this Agreement relates; provided that each of the following conditions are satisfied in full: (a) an authorized representative of the transferor or transferee notifies us in writing of the transfer, the legal name of the transferee, and date of transfer; (b) the transferor or transferee submits to us such written certifications, assurances (which may include a written opinion of your counsel identifying us as beneficiaries entitled to rely on such opinion) or instruments as we, in our sole discretion, may request; and (c) we are satisfied, in our sole discretion, of the validity of the certifications, assurances or instruments submitted. Upon our recognition of a transfer by a Provider of Record, the Administrative Rights and all Authorized User accounts of such Provider of Record’s Authorized Worker shall automatically transfer to such Provider of Record’s recognized transferee. Except as expressly set forth in this Section you may not assign or transfer this Agreement, in whole or in part, without our prior written consent, which may be withheld at our sole discretion. We may freely assign this Agreement in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
- Assurances. By requesting or directing us to take any action described above in this section you represent and warrant that (i) you have the authority to act on such Provider’s behalf or to control such account(s) or data, and (ii) your request is not in furtherance of any purpose or action that would violate any provision of this Agreement, applicable law or the rights of any person or entity. YOU HEREBY WAIVE AND UNCONDITIONALLY RELEASE US, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, DEBTS, LIABILITIES, EXPENSES, ACTIONS AND CAUSES OF ACTIONS OF EVERY KIND AND NATURE, WHETHER NOW KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH ANY ACTION WE TAKE OR DO NOT TAKE IN RESPONSE TO ANY REQUEST. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE § 1542 (OR SIMILAR PROVISIONS OF THE LAWS OF OTHER STATES), WHICH STATES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
- You hereby agree to indemnify, defend, and hold harmless us and other Authorized Users, and our and their respective affiliates, officers, directors, employees and agents, from and against any claim, cost or liability, including reasonable attorneys’ fees arising from: (a) any action we take in reliance on any information, certification, assurance or instrument you provide to us, or (b) any action we take that complies with any request or direction you at any time make or made.
No Party to this Agreement shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations under this Agreement by reason of: (a) severe weather and storms; (b) earthquakes or other natural occurrences; (c) strikes or other labor unrest; (d) power failures; (e) nuclear or other civil or military emergencies; (f) acts of legislative, judicial, executive, or administrative authorities; or (g) any other circumstances that are not within its reasonable control.
Any provision of this Agreement that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of this Agreement, and such other provisions shall remain in full force and effect.
Any and all notices required or permitted under this Agreement shall be sent by United States mail or fax transmission to the address provided below or to such other and different addresses as the Parties may designate in writing. If you supply us with an electronic mail address, we may give notice by email message addressed to such address; provided that if we receive notice that the email message was not delivered, we will give the notice by United States mail or fax.
To us: EHRZip
Attention: Customer Support
6510 Lonetree Blvd., Ste 300
Rocklin, CA 95765
To you, at the current contact information on file with us at the time notice is given.
No term of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. Any consent by any Party to, or waiver of a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
Complete Understanding; Amendments
This Agreement contains the entire understanding of the Parties, and there are no other written or oral understandings or promises between the Parties with respect to the subject matter of this Agreement other than those contained or referenced in this Agreement.
No Third-Party Beneficiaries
Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever as the intended beneficiaries of this Agreement are only the Parties hereto.
The Services give you the ability to enter into agreements, authorizations, consents and applications; make referrals; order lab tests; prescribe medications; or engage in others transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS, AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. You represent and warrant that you have the authority to take such actions.