(Effective as of October 5, 2015)
By clicking the “PROCEED, I AGREE” button displayed as a part of the online registration process, you are indicating that you expressly accept the following terms and conditions in this legal agreement between you and any organization you represent (collectively, “you” or the “Customer”) and Revenue Well Systems, LLC. (“RevenueWell”), governing your use of RevenueWell’s online service and any related software you may install on your computer (the “Service”). If you are entering into this Agreement, you represent that you are authorized to accept the terms of this Agreement on behalf of yourself or the organization you represent. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not click on the “PROCEED, I AGREE” button and must close the electronic contract, and you may not use the Service.
In accordance with the Services Agreement between Customer and RevenueWell the following terms and conditions of service (the “Terms and Conditions”) are expressly incorporated into and made a part of the Services Agreement. The Services Agreement and these Terms and Conditions are collectively referred to as the “Agreement”. Defined terms herein shall have the meaning set forth in the Agreement or as set forth in the Terms and Conditions below.
The most current version of these Terms and Conditions will be available to Customer by visiting http://www.revenuewell.com/standard-terms/.
For purposes of these Terms and Conditions, the terms below shall have the following meanings:
“Customer Client”, “Customer Clients” means the clients or patients serviced by the Customer.
“Customer Data” means any and all patient or customer data, including consumer review data, captured by the RevenueWell system.
“Customer User”, “Customer Users”, or “User” means the person or persons authorized by Customer to access and use the Services.
“Customer Website” means Customer’s independent business website owned and controlled by Customer.
“Internet” means the electronic communications network that connects computer networks and organizational computer facilities throughout the world.
“Patient” means an individual who receives dental services from Customer.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and all applicable amendments.
“RevenueWell Content” means all RevenueWell technology, intellectual property, data and information of any nature used to provide the Services, including but not limited to all User Documentation, all Software and all third party content or information licensed by RevenueWell to provide the Services.
“RevenueWell Website” means www.revenuewell.com.
“Services” means those activities performed by RevenueWell for Customer obtained through Customer’s licensed access to RevenueWell’s online, internet based dental practice marketing and patient communication Software and related services.
“Software” means the RevenueWell proprietary software, and any third party software licensed by RevenueWell, used to provide Services to Customer, including but not limited to all algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter.
“User Documentation” means all documentation provided to Customer (whether in written or electronic form) relating to Customer’s use of the Services and RevenueWell Content.
RevenueWell grants to Customer, and Customer accepts, a nontransferable, nonexclusive license and right to access the Services via the Internet and to use the Services as authorized in the Agreement. Use of the Services is restricted to Customer’s internal business purposes and operations during the applicable Term, and Customer may not sublicense or assign this license without RevenueWell’s express, written consent. Upon termination of the Agreement, the license granted to Customer to use the Services will immediately terminate, and Customer’s right to access the Services shall cease.
The Agreement does not constitute a contract for the sale of Software and, except for the limited license granted to Customer in accordance with this Section 3, does not convey to Customer any rights of ownership in or related to the RevenueWell Content or Services.
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or RevenueWell Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
Customer acknowledges and agrees that, subject to the license grants contained in this Agreement, RevenueWell, or its licensors, retains all right, title and interest, including all related intellectual property rights, in and to the RevenueWell technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, Feedback) or other information provided by Customer or any other party relating to the Service. Customer retains all right, title and interest to any and all patient or customer data, including consumer review data, captured by the RevenueWell system (defined as “Customer Data” above) or provided to RevenueWell, subject to RevenueWell’s right to use such Customer Data to provide the Service to you. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the RevenueWell Service, RevenueWell technology, RevenueWell Content, or RevenueWell intellectual property except for the limited licenses granted to you under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by RevenueWell or its licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of RevenueWell or its licensors. RevenueWell collects anonymized, aggregate data in order to improve the Services and to provide additional products and services. Customer agrees to permit RevenueWell to use such anonymized, aggregate data.
The trademarks, trade names, service names or logos associated with the Service (collectively, the “Marks”) are trademarks of RevenueWell or its licensors, and no right or license is granted to use them. You hereby acknowledge RevenueWell or its licensors’ perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. You agree not to use or attempt to register any Mark that is confusingly or deceptively similar to the Marks.
Customer is solely responsible for any and all activity of Customer Users and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer Users will choose a password and a user name. Customer is entirely responsible for maintaining the confidentiality of Customer passwords and account. Customer agrees to notify RevenueWell immediately of any unauthorized use of the Customer account or any breach of security. RevenueWell will not be liable for any loss that you may incur as a result of someone else using the Customer password or account, either with or without Customer knowledge. Customer warrants and represents that: (i) the content to be transmitted by or on Customer behalf does not constitute SPAM; (ii) the content to be transmitted by or on Customer’s behalf is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) Customer have complied and will comply with all applicable laws and regulations respecting your execution and performance of this Agreement.
The RevenueWell Service receives data from third-party software systems, which Customer will designate in the process of setting up the RevenueWell Service. If Customer elects to change, upgrade or materially alter the third party software system from which RevenueWell receives data, RevenueWell does not guarantee that all Customer Data or Service functionality will be preserved. Customer is responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact RevenueWell’s ability to receive and process Customer Data. In addition, you are responsible for providing RevenueWell with accurate instructions and information regarding the third party systems and databases with which the Service will interface, and you bear all responsibility for incomplete, inaccurate or otherwise faulty information regarding third party systems and databases belonging to you as conveyed to RevenueWell in connection with set up or maintenance of the Service.
RevenueWell does not own any Customer Data, information or material that you submit to the Service in the course of using the Service. Except in accordance with this Agreement or as required by law, Customer Data in identifiable form will not be disclosed, sold, assigned, licensed or otherwise disposed of by RevenueWell to any third party. You, not RevenueWell, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in this Agreement or as required by law, RevenueWell shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. RevenueWell reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and, RevenueWell shall have no obligation to maintain or forward any Customer Data.
RevenueWell utilizes a number of third party providers to provide the Services. Such third party providers include, but are not limited to, email service providers, SMS service providers, hosting providers and content providers. Customer agrees to the use of third party providers regarding the Services.
RevenueWell has worked to achieve email compliance. Customer agrees to comply with all elements of CAN-SPAM and safe sender email practices. This includes but is not limited to including unsubscribe links, Customer’s full contact information in all correspondence, and not releasing private and/or confidential information. Customer may only use email services for those customers with whom Customer has an existing business relationship and which have indicated that they accept correspondence from Customer. Customer may not attempt to spoof sender domains, send spam or other offending email practices including those covered in the Section titled “Customer responsibility and passwords; third-party software” of this Agreement. Because of carrier technologies, RevenueWell makes no expressed or implied warranty of individual message receipt. RevenueWell is not liable for any issues that arise associated with the content that Customer provides or unforeseen liabilities of it being delivered.
RevenueWell automates text message communications, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that Customer may be sending text messages related to Customer goods and services using automated technology and that your customer affirmatively agrees to receive such messages. The prior express consent must include your customers’ written or electronic acceptance. Specifically, by entering a cell phone number into the Customer management system or the RevenueWell system and not opting such cell phone out of the RevenueWell text message feature, Customer is directing RevenueWell to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. Customer is responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, Customer may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords; third-party software” of this Agreement. RevenueWell makes no expressed or implied warranty of individual message receipt. RevenueWell shall not be liable for any issues that arise associated with the content that Customer provides or unforeseen liabilities of it being delivered. Customer shall be solely liable to comply with applicable laws and regulations within Customer’s jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to its customers.
As part of the Services, Customer authorizes RevenueWell to contact Customer’s Clients on your behalf to solicit Customer Client reviews regarding their experience with you. Customer represents and warrants that the Customer Client names and contact information provided to RevenueWell consists only of those Customer Clients that have authorized such contact in accordance with your privacy policies and your HIPAA obligations. Customer authorizes RevenueWell to solicit such reviews directly (first party reviews) and also authorizes RevenueWell to provide Customer Clients with information regarding their ability to post a review directly to a third party website (third party reviews). Customer agrees that RevenueWell has no control over third party reviews, and RevenueWell has no control over such third party websites or resources that are provided by companies or persons other than RevenueWell. Such third parties may publish a Patient Review or Customer business information alongside information provided by other sources, or may make changes, enhancements, additions or deletions to Customer business information, with or without notice to Customer. These third party services, if any, are provided solely by the third party websites, and are subject to the terms and conditions of those third party websites. RevenueWell makes no warranty as to the effect that Customer’s participation in the Patient Review program will have upon search engine results, index placement, search ranking, or any other outcome with respect to third party sites and services. RevenueWell does not endorse, approve, or sponsor any third party sites, or any content, advertising, information, materials, products, services, or other items on or available on or from them, and RevenueWell disclaims all liability in connection therewith.
The term “Confidential Information” means all proprietary information, documents, and electronic data that either Party obtains in any manner from the other Party. Confidential Information does not include any information, documents, or electronic data that: (a) have become public information without any breach of the Agreement or violation of law; (b) were already legally in a Party’s possession prior to the time that the other Party disclosed such information to such Party; (c) a Party obtained from a third party (other than one acting on behalf of the other Party in disclosing such information) and had no reason to believe that such third party was unlawfully in possession of the information or that such third party was in violation of any contractual, legal, or fiduciary obligation to the other Party by disclosing such information; (d) is or was independently developed by a Party without the benefit or use of any Confidential Information received hereunder; or (e) is required to be disclosed by any law, order of a governmental authority or court of applicable jurisdiction; provided that if a Party is required to disclose such information it shall, as soon as reasonably possible after discovering the information is required to be disclosed, notify the other Party and cooperate in any efforts the other Party may thereafter choose to pursue to obtain an appropriate protective order or otherwise obtain confidential treatment of such Confidential Information.
Each Party shall hold all of the other Party’s Confidential Information in strict confidence and use at least the same degree of care as it uses with respect to its own confidential information to prevent the disclosure of such Confidential Information. Neither Party shall disclose the other Party’s Confidential Information to any person or entity except to persons who have a need to know such Confidential Information in furtherance of such Party’s performance of its obligations pursuant to the Agreement, including the recipient Party’s directors, officers, employees, affiliates, representatives, financial advisors, attorneys, accountants, agents or contractors (collectively, “Representatives”). Further, neither Party shall provide Confidential Information to any of its Representatives until such Representative agrees to abide by the terms of this Paragraph 13. Each Party shall, at its own expense, take all reasonably available steps necessary to prevent the unauthorized use or disclosure of any of the other Party’s Confidential Information by any of its Representatives or by any other person or entity who gains access to such Confidential Information from the recipient Party in violation of the terms of the Agreement, and each party shall be responsible for the conduct of its Representatives under this Paragraph. At the written request of a Party, the other Party shall promptly return all or any portions of the requesting Party’s Confidential Information to the requesting Party and destroy all copies of such Confidential Information in the other Party’s possession or control.
The parties acknowledge that HIPAA is applicable to certain elements of the Services and Customer Content as more fully described in Paragraph 23 below. The confidentiality obligations of the parties set forth in this Paragraph 11 shall be consistent with the parties’ obligations pursuant to HIPAA, and where any inconsistencies may arise, the HIPAA obligations shall control.
Customer agrees to pay the Subscription Fee as described in the Agreement. The Subscription Fee is fixed for the Initial Term. RevenueWell charges and collects in advance for Customer’s use of the Services. RevenueWell will automatically charge Customer’s credit card or effectuate the EFT every month for the monthly installment payment and incidental or other charges in accordance with the Agreement and Exhibit A to the same.
Notwithstanding the foregoing, in some instances the Customer may be billed for the Services by a third party distribution partner authorized by RevenueWell. Customer agrees to pay for the Services in accordance with the Agreement and Exhibit A to the same on terms defined by the third party distribution partner.
Unless otherwise stated, the RevenueWell fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, plus interest, penalty and additions thereon (collectively, “Taxes”). Customer is responsible for paying all Taxes applicable to Customer’s purchase or use of RevenueWell products or services. If RevenueWell has the legal obligation to pay or collect Taxes (or an amount in respect of Taxes) for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless you provide RevenueWell with a valid tax exemption certificate authorized by the appropriate taxing authority. RevenueWell is responsible solely for taxes based on its income.
By opting in to use RevenueWell’s postcard and letter product, Customer will be subject to the service fees charged per printed piece. Customer assumes full responsibility that any content Customer submits for print and mailing is correct, and in the event that Customer submits incorrect information, misspellings, grammatical errors, etc., Customer agrees to pay any and all associated correction fees.
RevenueWell may offer a complimentary listing service (the “Listing Service”) under which Customer business information and customer reviews (collectively, the “Business Information”) are submitted to the RevenueWell service referred to as “PatientConnect365.” You agree to participate in the Listing Service, and allow RevenueWell to make this data available and provide registration services to Intuit Local and third party sites. It is up to third party sites to accept the submissions, and RevenueWell makes no warranty as to such sites’ willingness to do so. For so long as Customer continues to subscribe to the Service, RevenueWell will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Listing Service. RevenueWell has no control of third party web sites or resources that are provided by companies or persons other than RevenueWell. Additional tools may be available from the third parties to provide additional updates to Customer information, but if Customer uses such services, RevenueWell is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. If Customer no longer has an active subscription, RevenueWell may remove Customer from the listing. Upon termination of this Agreement by either party, the Business Information and any consumer reviews may remain in any data feeds provided to third parties under the Listing Service but is subject to removal at any time as determined by RevenueWell. Customer may request explicit removal of the Business Information from such data feeds in writing. Upon request, at any time during your active subscription to the Service and up to the date of any termination of this Agreement, RevenueWell will provide Customer with an electronic copy of your Business Information, including consumer reviews.
RevenueWell Publisher is a free add-on service to Services which allows the Customer to connect various social media profiles to Services and interact with them through the Services. RevenueWell Publisher services require a valid RevenueWell subscription to be in place. By electing to subscribe to RevenueWell Publisher for Facebook, you agree to pay all monthly subscription fees through the remainder of the Term of your Agreement, billed in accordance with our normal monthly billing procedures. Customer subscription to RevenueWell Publisher for Facebook will automatically renew, along with any renewal of your RevenueWell subscription, unless Customer provides RevenueWell with written notice of cancellation not less than thirty (30) days prior to the end of the then-current Term. RevenueWell bears no responsibility for, and makes no warranty as to, the content published on Customer Facebook pages, or any other matter related to Customer’s use, or that of others, of Facebook, its applications, features and functions.
Agreement may be terminated by Customer at any time upon thirty (30) days written notice to RevenueWell or, if applicable, RevenueWell’s third party distribution partner. Customer agrees to pay RevenueWell any partial fees for Services or incidental charges due at the time of termination.
Any breach of Customer’s obligations or unauthorized use of the RevenueWell Content or Services, allows RevenueWell, in its sole discretion, to terminate the Services. In addition to any other rights granted to RevenueWell herein, RevenueWell reserves the right to suspend or terminate the Services if Customer’s account becomes delinquent for more than five (5) days following RevenueWell’s failed attempt to charge Customer’s credit card, effectuate the EFT, or Customer’s failure to pay RevenueWell’s third party distribution partner in accordance with “Billing and Fees” Section of this Agreement.
RevenueWell will indemnify, defend, and hold harmless Customer and its affiliates, directors, officers, members, managers and employees with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent arising out of or related to any third party claim that the Services or RevenueWell Content infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party (an “Infringement Claim”). RevenueWell shall have no obligation of indemnity if any Infringement Claim is based on or related to (a) any use of the Services in violation of the Agreement, (b) any use of the Services in conjunction or combination with any content, data, equipment, software, documents, materials or intellectual property not provided by RevenueWell, or (c) any Customer Content.
Customer shall indemnify, defend, and hold harmless RevenueWell and its affiliates, directors, officers members, managers and employees with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent arising out of or related (a) to any third party claim regarding Customer’s breach of any of Customer’s representations, warranties, obligations, covenants or agreements in the Agreement, or (b) any Infringement Claim caused by Customer’s or its affiliates or any of their respective directors, officers, members, managers employees, agents, or Customer representatives.
If any third party claim is commenced against a Party entitled to indemnification hereunder (the “Indemnified Party”), notice thereof shall be given by the Indemnified Party to the other Party (the “Indemnifying Party”) as promptly as practicable. Any delay by the Indemnified Party in providing such notice shall not limit the Indemnifying Party’s obligations pursuant to this Agreement except to the extent of any liability caused by such delay. If, after such notice, the Indemnifying Party acknowledges that this Agreement applies with respect to such claim, then the Indemnifying Party shall be entitled, if it so elects, to immediately take control of the defense and investigation of such claim and to employ and engage attorneys acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s cost. The Indemnified Party shall cooperate, at the cost of the Indemnifying Party, with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim; provided, however, that the Indemnified Party may, participate in any investigation, trial and defense at its own cost. No settlement of a claim that involves a remedy other than the payment of money solely by the Indemnifying Party shall be entered into without the consent of the Indemnified Party. After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal fees and expenses incurred thereafter by such Indemnified Party.
RevenueWell warrants that the Services will perform in accordance with the Agreement and will be performed in a timely and professional manner in accordance with commercial practices standard in the industry for similar services. This warranty is limited to Customer, is not transferable, and does not extend to incidents resulting from a breach of the Agreement by Customer.
NO OTHER REPRESENTATIONS AND WARRANTIES:
CUSTOMER UNDERSTANDS AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF CONDUCT, OR COURSE OF PERFORMANCE. CUSTOMER UNDERSTANDS AND AGREES THAT, EXCEPT AS PROVIDED HEREIN, ALL PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT REVENUEWELL DOES NOT MAKE ANY WARRANTIES THAT REVENUEWELL’S PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
IN NO EVENT SHALL REVENUEWELL, OR ITS APPLICABLE SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER CUSTOMER CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS REGARDING THE SERVICES; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY CUSTOMER REGARDING THE SERVICES. THE TOTAL CUMULATIVE LIABILITY OF REVENUEWELL TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO FEES CUSTOMER PAID TO REVENUEWELL IN THE 6 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. THESE LIMITATIONS ON LIABILITY APPLY REGARDLESS OF (A) THE FORM OF THE ACTION OR CLAIM OR THE THEORY OF RECOVERY, (B) WHETHER REVENUEWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) WHETHER SUCH DAMAGES MAY BE FORESEEABLE.
This Agreement shall be governed in accordance with the laws of the State of Illinois, without reference to its choice of law principles. Any claim arising under or by reason of this Agreement will be brought in the state or federal courts located in Chicago, Illinois, and Customer irrevocably consents to such jurisdiction and venue.
a. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective.
b. This Agreement will bind and inure to the transferee of a party’s business, and will be enforceable in the event of a change in ownership or control.
c. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein.
d. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.
e. RevenueWell reserves the right to modify the terms of this Agreement from time to time, at its sole discretion; and your continued use of the RevenueWell Service or products constitutes your acceptance of such modified terms.
f. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
g. This Agreement is not intended to confer any right or benefit on any third party, and no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement.
h. Severability. In the event that any term or provision of the Services Agreement is held to be invalid, void, illegal or unenforceable in any respect, the Services Agreement will not fail, but will be deemed amended, to the least extent necessary, to delete the void or unenforceable term or provision, and the remainder of the Services Agreement will be enforced in accordance with its terms and will not in any way be affected or impaired thereby. In the event that any term or provision of the Services Agreement is held to be overbroad or otherwise unreasonable, the same will not fail, but will be deemed amended only to the extent necessary to render it reasonable, and the parties agree to be bound by the same as thus amended.
i. Notices. Unless expressly stated otherwise in the Services Agreement, any notice, demand, request or delivery required or permitted to be given by either party pursuant to the terms of the Services Agreement shall be in writing and shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), or (d) upon confirmation of receipt by facsimile transmission, addressed to the party at such party’s address as set forth in the Services Agreement or as subsequently modified by written notice.
j. Waiver. The failure of either Revenue Well or Client to insist upon or enforce performance by the other party of any provision of the Services Agreement or to exercise any right under the Services Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
Customer is a “Covered Entity” as defined in 45 CFR §160.103; RevenueWell is, with respect to Customer, a “Business Associate” as defined in 45 CFR §160.103; and RevenueWell may receive PHI (as defined below) from Customer. The parties acknowledge that in Services to Customer, RevenueWell and its subcontractors, employees, affiliates, agents, or representatives may have reason to access, use, create, maintain or transmit PHI for or on behalf of Customer. Certain PHI may be transmitted by or maintained in electronic media as Electronic PHI. The parties agree to comply with any applicable federal or state law governing the privacy and security of the PHI and Electronic PHI including, without limitation, HIPAA and the HITECH Act as defined below, in accordance with this Business Associate Agreement.
DEFINITIONS. Capitalized terms used, but not otherwise defined, in this Business Associate Agreement shall have the same meaning as those terms in the applicable regulation.
“Breach”, as it relates to information, has the same meaning as the term “breach” in Section 13400 of the HITECH Act and 45 CFR §164.402
“Designated Record Set” has the same meaning as the term “designated record set” in 45 CFR §164.501.
“Electronic PHI” has the same meaning as the term “electronic protected health information” in 45 CFR §160.103, limited to the information created or received by RevenueWell from or on behalf of Customer.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, as each may be amended from time to time.
“HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009.
“Individual” has the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
“PHI” has the same meaning as the term “protected health information” in 45 CFR §160.103, limited to the information created or received by RevenueWell from or on behalf of Customer.
“Required By Law” has the same meaning as the term “required by law” in 45 CFR §164.103.
“Secretary” means the Secretary of the Department of Health and Human Services or his designee.
“Security Rule” means the Security Standards at 45 CFR Part 160 and Part 164, Subparts A and C.
“Unsecured PHI” has the same meaning as the term “unsecured protected health information” in Section 13402(h) of the HITECH Act and 45 CFR §164.402.
(a) RevenueWell agrees to not use or disclose PHI other than as permitted or required by this Business Associate Agreement or as Required by Law. Except as otherwise limited in this Business Associate Agreement, RevenueWell may use or disclose PHI to perform functions, activities, or Services for, or on behalf of Customer as specified in this Business Associate Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Customer. Customer shall provide to RevenueWell and RevenueWell shall request from Customer, only the minimum PHI necessary to perform the Services or fulfill a specific function required under this Business Associate Agreement
(b) RevenueWell agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Business Associate Agreement, including the implementation of administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic PHI as required by the Security Rule.
(c) RevenueWell agrees to mitigate, to the extent practicable, any harmful effect that is known to RevenueWell of a use or disclosure of PHI by RevenueWell in violation of the requirements of the HIPAA requirements.
(d) RevenueWell agrees to report to Customer any use or disclosure of the PHI that it becomes aware of that is not provided for by this Business Associate Agreement. Further, RevenueWell agrees to notify Customer of any Breach of Unsecured PHI of which it becomes aware and otherwise comply with the notification requirements set forth in Section 13401 of the HITECH Act and 45 CFR §164.410.
(e) RevenueWell agrees to ensure that any agent, including a subcontractor, that creates, receives, maintains or transmits PHI on behalf of RevenueWell agrees to the same restrictions and conditions that apply to RevenueWell with respect to such information.
(f) RevenueWell agrees to make available PHI in a Designated Record Set to the Customer as necessary to satisfy Customer’s obligations under 45 CFR 164.524. RevenueWell may impose a reasonable, cost-based fee as permitted by 45 CFR 164.524.
(g) RevenueWell agrees to make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Customer pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Customer’s obligations under 45 CFR 164.526.
(h) RevenueWell agrees to make its internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received by RevenueWell on behalf of Customer available to the Secretary, at a reasonable time designated by the Secretary, for purposes of the Secretary determining Customer’s compliance with the Privacy Rule.
(i) RevenueWell agrees to document such disclosures of PHI and information related to such disclosures as would be required for Customer to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528, and to provide an accounting of disclosures as necessary for Customer to comply with 45 CFR §164.528. After the first accounting to an Individual, RevenueWell may impose a reasonable, cost-based fee for each subsequent request for an accounting by the same Individual, provided the Individual is notified in advance of the fee.
(j) RevenueWell agrees not to disclose or exchange any PHI of an Individual for remuneration except as permitted in Section 13405(d)(2) of the HITECH Act and 45 CFR 164.502(a)(5)(ii).
Except as otherwise limited in this Business Associate Agreement, RevenueWell may (i) use PHI for the proper management and administration of the RevenueWell Services or to carry out the legal responsibilities of RevenueWell, and (ii) disclose PHI for the proper management and administration of the Services, provided that disclosures are Required by Law, or RevenueWell obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies RevenueWell of any instances of which it is aware in which the confidentiality of the information has been breached.
(a) Customer shall use the encryption features in the Services to encrypt any and all PHI that is provided to RevenueWell. Customer shall defend and indemnify RevenueWell from and against any damages and costs arising from or relating to the failure of Customer to encrypt the PHI.
(b) Customer shall notify RevenueWell of any limitation(s) in its notice of privacy practices of Customer in accordance with 45 CFR §164.520, to the extent that such limitation may affect RevenueWell’s use or disclosure of PHI.
(c) Customer shall notify RevenueWell of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect RevenueWell’s use or disclosure of PHI in providing the Services.
(d) Customer shall notify RevenueWell of any restriction to the use or disclosure of PHI that Customer has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect RevenueWell’s use or disclosure of PHI in providing the Services.
(e) Customer shall not request RevenueWell to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Customer.
(a) Term. The term of this Business Associate Agreement shall be effective as of the Effective Date and shall terminate when all of the PHI provided by Customer to RevenueWell, or created or received by RevenueWell on behalf of Customer, is destroyed or returned to Customer, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section.
(b) Termination for Cause. If either party materially breaches any provision of this Business Associate Agreement, the other party may terminate the Services if the breaching party fails to cure such breach within thirty (30) days after receiving written notice of such breach, or immediately terminate the Services if cure is not possible.
(c) Effect of Termination.
(i) Except as provided in subparagraph (ii) below, upon termination of this Business Associate Agreement, for any reason, RevenueWell shall return or destroy all PHI received from Customer, or created or received by RevenueWell on behalf of Customer. This provision shall also apply to PHI that is in the possession of subcontractors or agents of RevenueWell. RevenueWell shall retain no copies of the PHI.
(ii) In the event that RevenueWell determines that returning or destroying the PHI is infeasible, RevenueWell shall provide to Customer notification of the conditions that make return or destruction infeasible. If the return or destruction of PHI is infeasible, RevenueWell shall extend the protections of this Business Associate Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as RevenueWell maintains such PHI.
(d) Termination Upon Change In Law. If the Secretary provides guidance, clarification or interpretation of HIPAA or the HITECH Act or there is a change in HIPAA or the HITECH Act such that the service relationship between RevenueWell and Customer is not considered a Business Associate relationship as defined in HIPAA, this Business Associate Agreement shall terminate and be null and void.
(a) Regulatory References. A reference in this Business Associate Agreement to a section in a regulation means the section as in effect or as amended.
(b) Amendment. The parties agree to take such action as is necessary to amend this Business Associate Agreement from time to time as is necessary for Customer to comply with the requirements of HIPAA.
(c) Survival. The respective rights and obligations of RevenueWell under this Business Associate Agreement shall survive the termination of this Business Associate Agreement.
(d) Interpretation. Any ambiguity in this Business Associate Agreement shall be resolved to permit Customer to comply with HIPAA.
(e) Indemnification. Customer agrees to indemnify RevenueWell and any employees, directors, officers of RevenueWell (collectively “RevenueWell Indemnitees”) against all actual and direct losses resulting from or in connection with any breach of this Business Associate Agreement by Customer, or any violation of HIPAA resulting from any improper use or disclosure of PHI and Electronic PHI pursuant to Customer’s direction. Actual and direct losses shall include, but shall not be limited to, judgments, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) which are imposed upon or incurred by RevenueWell Indemnitees by reason of any suit, claim, action, investigation, or demand by any Individual, government entity, or third party. This obligation to indemnify shall survive the termination of this Agreement.
The following fees will be billed on a per-usage basis:
1. Print marketing:
2. Automated Voice Communications:
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