THIS TALKULTIMATE™ AGREEMENT (“AGREEMENT”) IS A LEGALLY BINDING CONTRACT AND IT IS VERY IMPORTANT THAT YOU CAREFULLY READ, UNDERSTAND AND AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN BEFORE IN ANY MANNER ACCESSING OR USING TALKEHR™.

1.       Definitions:

1. Client: means the individual Provider and/or entity accepting the terms of this Agreement and executing the same electronically.
2. Provider: Provider means an individual, associated with Client and receiving products/services hereunder, who is licensed by a jurisdiction within the United States, to practice medicine or surgery or provide medical or healthcare services, furnish bills, and get paid for health care services in the normal course of business.
3. User: Any individual including Provider, who has been authorized, by allotting him/her a user name & password, to (a) access www.talkehr.com; and/or (b) operate talkEHR™ on Client’s behalf.
4. talkEHR™: Means Company’s proprietary cloud-based, speech-recognition enabled electronic health record application available online at www.talkehr.com and which is accessed and used by Company’s clients under a license.
5. ID: ID means unique user name and password provided by Company to Client’s User(s) for accessing/operating talkEHR™ available at www.talkehr.com.

PART - I: Revenue Cycle Management (RCM) Services

2.       Services. Company shall begin providing RCM Services to Client from the Commencement Date. Company shall, subject to Company’s standard policies and procedures, process all of Client’s medical insurance claims, entered by Client through talkEHR™, and send reminders to Client’s patients for scheduled appointments and patient balances due in the form of either, or a combination of (i) automatically generated reminder calls; (ii) automatically generated email reminders; or (iii) reminders on patients’ PHR portal. Company shall perform such follow-up on Client’s insurance claims, as Company, in its reasonable discretion, deems necessary and appropriate. Company shall post payments and make Client’s billing information available to Client, together with the standard reports and practice management features provided by Company, on Company’s secure website.

3.       Additional Services. Company, in its sole discretion, may choose to offer Client a suite of additional practice management services (“Additional Services”). Such Additional Services may include any, all or a combination of: (A) online eligibility confirmation for participating payers; (B) Rx Manager (electronic prescribing) subject to a one-time set-up charge of $75 per Provider and electronic prescribing for controlled substances (“EPCS”) subject to a charge of $60 per Provider per year; (C) Prescription Drug Monitoring Program’s (PDMP) management services subject to a one-time set-up charge of $800 per Client’s location and $50* annually (*variable in accordance with State recommendations); (D) electronic laboratory and radiology connectivity; (E) a customized website, developed, registered, hosted and owned by the Company, with assigned domain name and standard content including web-based patient scheduling; (F) talkPHR™ - advanced cloud-based patient portal designed to facilitate Client’s patients in accessing their health record and delivery to them of Telehealth Services (“PHR Portal”); (G) secure patient messaging (H) direct-messaging feature subject to a one-time set-up charge of $200 for Client’s practice and $100 for each provider in Client’s practice annually; (I) online practice and clinical documents storage; (J) cloud-based fax service for inbound/outbound faxes subject to a charge of 5¢ per page (received or sent). Client shall also pay a one-time set-up fee of $10 for each new or ported fax number; (K) Upon client’s request, generate automated patient reminder calls (Flu shots & wellness visits); (L) mHealth apps which include: (i) talkCheckin (practice/ Provider) application subject to a charge of $100 per year; (ii) talkDictate application; (iii) talkRx ; and (iv) ICD9-ICD10 Converter app and (M) at Company’s discretion and upon Client’s express request, generate paper statements to Client’s patients for outstanding balances subject to a charge of ninety-five cents (95¢) per statement. Company may substitute any of the above features/services with another feature/service of equal or greater value.



3-A: Telehealth Services – TERMS AND CONDITIONS:

A.      Telehealth Medical Services - Company’s Responsibilities: Company will provide a fully integrated telehealth solution as part of talkEHR/talkPHR to facilitate the delivery of medical care by Client’s Provider(s) to patients physically located at a different place through the use of advanced telecommunications technology that enables Providers to remotely see and hear patients in real time. Company does not guarantee reimbursement of any healthcare claims denied by the payers on the basis that such claim(s) are not eligible for telehealth benefits. Claims include, but are not limited to: (i) claims arising directly out of Provider’s performance of Telehealth Medical Services during the term of the Agreement; or (ii) claims emanating from Client’s utilization of talkEHR/talkPHR telehealth Platform hereunder. Client acknowledges that Company may, in its sole discretion, outsource or subcontract Telehealth Services to a third-party, whose provision of services will nonetheless be governed by this Agreement. The key features of this service include:

• Telehealth Platform. Access to the web-based talkPHR platform to:

1. Client and/or its Providers enabling them to connect with patients physically present at other locations via video conference; and
2. Client’s authorized Users to perform administrative and other non-telehealth service related tasks.

• Training and Support. Company will impart training and provide support to Client, its Providers and authorized Users for the optimum utilization of Telehealth Platform.

B.      Telehealth Platform Monthly Fees.  Client will pay Company, a fee in the amount of Forty-Nine Dollars ($49.00) per month for each Provider in Client’s practice accessing/utilizing Telehealth Platform hereunder during the term of this Agreement in accordance with the procedure laid down in Section 23 (Payment Procedure).

C.      Client’s Responsibilities. Client and its Providers/Users are, and will always remain, solely responsible for: (a) the provision of Telehealth Medical Services and all other professional medical services and aspects relating to a Provider's practice of medicine (for the avoidance of doubt, Telehealth Medical Services shall be performed by Provider for appropriate visits as determined in a Provider's, sole professional judgment); (b) documenting the Telehealth Medical Services in Provider's clinical records; (c) billing and collecting for Telehealth Medical Services; (d) providing notice to and/or obtaining consent from any third-parties relating to the provision of Telehealth Medical Services through talkPHR; (e) ensuring that talkPHR is used in accordance with applicable instructions, training materials that may be made available by Company from time to time; (f) obtaining and maintaining both the functionality and security of all information technology software solutions and related services necessary to connect to, access or otherwise use talkPHR; and (g) complying with applicable laws, rules, regulations and standards laid down/imposed by the government health care programs and other payors, licensing agencies and applicable accreditation bodies, including, without limitation, with respect to the provision of Telehealth Medical Services.

3-B: Credentialing Services. Company may, upon Client’s express request, assist Client in credentialing its healthcare providers with governmental/commercial payers/Managed Care Plans and obtaining CAQH quarterly re-attestations (“Credentialing Services”) for additional charge. Company will charge fee for Credentialing Services as shown in the schedule below in accordance with the procedure laid down in Section 23 (Payment Procedure):

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*$5 (Per Provider) shall be charged by Company every month for the period during which re-attestation is required by Client.

All fees payable under this section shall be charged upon the submission of specific applications to relevant payors. Client shall be solely responsible for providing all necessary documentation in order for Company to effectively provide Credentialing Services and obtain necessary certification/attestation, as the case may be. Client shall further be responsible for keeping and maintaining all record/documents/information, including original documents/record, relative to credentialing/re-attestation and provide such record etc. to Company whenever it deems necessary for rendering Credentialing Services hereunder. Client shall also review all documentation as provided by Company and make appropriate corrections, if so required by the Company. Client acknowledges and agrees that Client shall solely be responsible for any losses incurred by Client for provision of healthcare services prior to the completion of credentialing with payor(s).

3-C: Coding services. Client is entitled, in its discretion, to use Company’s medical coding services (“Coding Services”) for additional charge. If Client elects to utilize Coding Services, Company may, in accordance with its standard policies and procedures, provide Coding Services to Client. Company shall provide Coding Services to Client by applying appropriate CPT-Current Procedural Terminology codes and ICD-10 - Diagnosis codes in addition to any applicable modifiers. In order for Company to furnish Coding Services, Client shall provide Company its patients’ health related information, including but not limited to, patient demographics, referring physician(s), visit reason/chief complaint(s), history (present and past visit(s), social history, hospitalization, surgical and family history), vital signs, allergies, physical examination details, office tests (if any), assessments and procedures, medications, plan of care etc. Client agrees that Company will encode one day’s work in no more than three business days after receipt thereof. If more than one day’s work is sent at any one time, Company will complete encoding work in commercially reasonable time. In addition to the Fee payable under Section 5 (“Monthly Fee”), Client shall pay Company a Coding Services fee in accordance with a Coding Fee Schedule and Client’s specialty, subject to change from time to time.

4.       Setup Fee. Upon the execution of this Agreement, Client shall pay to Company a one-time, non-refundable, setup fee in the amount of Nine Hundred and Ninety-Five Dollars ($995.00).

5.       Monthly Fee. Client shall pay Company a monthly fee equal to five percent (5%) of the total amount received by Client for patient care from insurance companies, Medicare, Medicaid and other governmental or commercial payers, patients and all other sources, including capitation, co-pays and self-pays, each month during the term of this Agreement (“Fee”). Notwithstanding the foregoing, Client agrees that minimum monthly fee payable for Client’s practice shall be Nine Hundred and Ninety-Five Dollars ($995.00) per month, in addition to such other fees as are set forth in this Agreement or agreed upon hereafter by the parties in writing. The manner of calculating the Fee is further described in Section 9 (Calculation of Monthly Fee). Company may, upon notice to Client, implement additional fees for any or all Additional Services set forth in Section 3 above.

6.       Term; Termination. The initial term of this Agreement shall be three (3) years, beginning on the Commencement Date. Upon expiration of the initial term (and each renewal term), this Agreement shall automatically renew for an additional period of one (1) year unless either party delivers to the other written notice of termination at least ninety (90) days prior to the expiration of the then-current term. Notwithstanding anything contained herein to the contrary, either party shall have the right to terminate this Agreement prior to the expiration of the then-current term in the event of a material default by the other party hereunder, which the breaching party fails to cure within thirty (30) days following its receipt of written notice, served by certified mail, describing the default in sufficient detail to enable the breaching party to cure the default.

7.       Setup Information. Client shall be responsible for providing Company with all information necessary to commence billing activities, including information pertaining to Client’s physician profile(s), provider number(s), participating insurance companies, referring physicians, hospitals and other medical facilities at which Client provides medical services, together with diagnosis codes, procedure codes and modifiers for the services provided by Client, special fee arrangements, demographics and all other necessary information, data or documents.

8.       Client’s Obligations. Client shall (a) check and confirm patient insurance information, eligibility and co-pays prior to providing treatment or rendering service, (b) provide to Company, by means of (i) practice management system; (ii) electronic health record (EHR) software or another method acceptable to Company, Client’s encounter information for all services provided by Client during the term of this Agreement, correct demographic, insurance, eligibility and complete claim information (e.g. CPT, ICD-10, modifiers) for each completed patient encounter, within three (3) business days following the date of service, (c) provide Company with patients’ accurate and validated email addresses for the generation of automated balance reminder emails, and (d) provide Company with copies of all EOBs and other records of payment received by Client from any source, including capitation, co-pays and self-pays, within three (3) business days of Client’s receipt, together with any other information necessary to enable the Company to process and submit Client’s claims in a timely manner, follow-up on Client’s accounts receivable and calculate the monthly Fee payable by Client hereunder. Client warrants and represents that all claim information provided by it or its agents to Company will be accurate, validated, verifiable and properly documented and that Client has obtained any necessary patient consents, authorizations and assignments. Client shall also comply with any additional, reasonable requirements imposed by Company from time to time.

9.       Calculation of Monthly Fee. Company’s monthly Fee shall be based upon (a) all amounts collected or received for patient care by Client each month during the term of this Agreement from any source, whether as a result of billings by Company, Client or any other party, and (b) all amounts collected or received by Client within the Thirty (30) day period following the termination or expiration of this Agreement with respect to patient care services rendered by Client during the term of this Agreement. Company will invoice Client on a monthly basis, on or about the first day of each month, and Client will pay the monthly invoice in accordance with the Payment Procedure set forth in Section 23 (Payment Procedure) below. If Company does not receive payment for any invoice on or before tenth (10th) day of the current month, Client will pay Company, in addition to the principal amount billed, a late fee of one and one half percent (1.5%) of the due and owing balance for each full or partial month that payment remains unpaid. Furthermore, should any balance become delinquent, Company may suspend claims processing, follow-up activities and Client’s access to talkEHR™ until payment or a mutually agreeable payment arrangement has been made. Client will also be responsible for all costs and expenses incurred by Company in connection with the collection of any delinquent balances, including reasonable attorneys’ fees, costs and expenses.

10.    Liquidated Damages; Costs. If Client improperly terminates this Agreement prior to the end of the then-current term, Company shall (in addition to any outstanding balance) be entitled to liquidated damages in an amount equal to seventy percent of the average monthly Fee earned by Company during the three (3) full months immediately preceding Client’s termination of the Agreement, multiplied by the number of full and partial months remaining in the then-current term (together with the next renewal term, if the 90 days period for serving notice of non-renewal has passed). Notwithstanding the foregoing, if the Commencement Date was less than 120 days prior to the termination date, than the foregoing liquidated damages provision shall not apply, and Company shall be entitled to all appropriate damages under contract, law or equity. In addition to the aforementioned liquidated or non-liquidated damages, Client shall reimburse Company for all reasonable attorneys’ fees, litigation costs and/or collections costs incurred by Company relative to litigation arising as a result of Client’s breach of this Agreement or Company’s enforcement of any of its rights under this Agreement.



PART - II: Electronic Health Record (EHR) Services – talkEHR™

As a condition of using Company’s RCM services, Client agrees to submit all patient encounters and other relevant information to Company through talkEHR™, unless otherwise expressly consented to in writing by the Company. The following provisions shall apply to Client’s use of the talkEHR™.

11.    Software License. Company will provide Client a non-exclusive, non-transferable, non-assignable, limited license to access & use talkEHR™ (MACRA/MIPS compliant - MU3 certified) available on www.talkehr.com subject to the limitations hereinafter set forth. Client may access and use talkEHR™ after supplying the assigned IDs’. talkEHR™ practice management features available hereunder to Client include, in a speech recognition enabled environment, creation/generation of healthcare claims and charts, systematic claims scrubbing, automated (systematic rule-based) denial/rejection management, generating HCFA forms and patient statements, and practice management scheduler. Client shall not grant or permit any other party access to its talkEHR™ account and will notify Company immediately of any unauthorized access/use. Client further agrees that each of its authorized Users will use his/her own ID for accessing talkEHR™. Client shall ensure compliance by its employees, Users and agents with the terms of this Agreement.

12.    Term; Termination This software license runs concurrent with the RCM services but will terminate immediately and without notice upon the earlier of the following: (a) Client’s breach of any of the provisions contained in Part I; (b) Client’s breach of any of the provisions contained in the Part II or (c) termination or expiration of this Agreement.

13.    Fees. Company will not charge any separate fee for the use of the talkEHR™. Notwithstanding the foregoing, if Client earns Meaningful Use incentive by virtue of using talkEHR™, Client understands and agrees that Company shall charge same percentage of the total Meaningful Use incentive earned by Client, for each provider, as is applicable under this Agreement for billing services. However, if Client ceases to be RCM Services client and wishes to continue using talkEHR™, Client shall obtain a license (by paying the then prevailing fee) to continue its use of talkEHR™.

14.    Suspension of Services. If Client has an overdue balance under this Agreement or any other agreement(s) between Company and Client, Company may, upon prior notice to Client, suspend the provision of products and/or services to Client under this Agreement until the balance is paid in full. Company may send such notice to Client by any class U.S. mail or in any other manner permitted by this Agreement. This suspension will not affect the duration of or payment under this Agreement.

15.    Unauthorized Use. TALKEHR™ license granted hereunder is limited to Client only. By using talkEHR™, Client agrees to comply with the terms of this Agreement and agrees that any other use is unauthorized and prohibited. Client agrees that it will not (and will not allow any other person to): (a) sub-license, in whole or in part, use of talkEHR™; (b) assign or otherwise transfer its licensed rights in talkEHR™; (c) modify, reverse engineer, translate or disassemble talkEHR™, or prepare or develop any derivative works of talkEHR™; (d) remove any product identification, copyright, trademark or other notices or circumvent or disable any security features in talkEHR™; (e) provide, lease, lend or use talkEHR™ for timeshare, rental use or hosting purposes or, except as expressly permitted, use talkEHR™ for the benefit of any other person; and (f) use talkEHR™ for any purpose(s) or in any manner not expressly contemplated by this Agreement and talkEHR™ documentation. Client shall communicate terms hereof to all of Client’s Users, Providers, agents and employees who may come in contact with talkEHR™ and Client shall cause them to comply with these Terms & Conditions. No license is granted to talkEHR™ source code. Client is prohibited from altering source code in any way and may not solicit, allow or assist another person to do so.

16.    Protection of IDs. Company requires each individual User to have a user name and password to access and use talkEHR™ and may currently and from time to time require additional password and security measures. Client agrees to comply with any password and other security requirements. Client is solely responsible for: (1) maintaining strict confidentiality of the IDs assigned to Client and its Users or which are otherwise used to access and use talkEHR™ or (2) for any IDs Company has provided for a particular User, instructing the Client`s User or employees to not allow another individual to use those IDs for any purpose, (3) any charges, damages or losses that may be incurred or suffered as a result of any failure to maintain strict confidentiality of IDs and (4) promptly informing Company in writing of any need to deactivate an ID due to such ID having been compromised. Company shall not be liable for any harm related to the theft of IDs or any use or disclosure of IDs that is not authorized or permitted.

17.    Patient Data. Company shall maintain a back-up of Client’s talkEHR™ data. During the term, Client may generate CCDA (Consolidated-Clinical Document Architecture), format files containing patient demographic and claim information, but Company does not represent that any other data are in a format that is readily importable into any third-party software.

18.    Technical Support Services. Company provides a central point of contact on its website for all technical support of talkEHR™, including software questions and application consultation. When Client is in need of technical support, Client shall first consult the online guides, videos and resources provided on Company’s website. Thereafter, if Client still requires assistance, Client may request live assistance (e.g., live support via chat, schedule an online training, schedule a call back) through the talkEHR™ Support Center. Company’s hours of service are twenty-four (24) hours a day, seven (7) days a week. Nothing shall obligate Company to perform any technical support services, except to the extent expressly set forth herein.

19.    Governmental Incentives. By using talkEHR™, Client may be eligible for financial incentives through the Centers for Medicare and Medicaid Services (CMS), provided Client satisfies the measures and objectives of the meaningful use criteria as defined by Department of Health and Human Services (DHHS) and endorsed by the Office of the National Coordinator. Obtaining payment and ensuring eligibility for monetary consideration shall be the sole responsibility of Client. Company shall not be liable in the event Client fails to obtain any such financial incentive(s). Client acknowledges and agrees that any and all funding for such incentive(s) shall be provided by the Federal Government and Company is not a funding source. Additionally, the PQRS related features (MACRA/MIPS) provided in talkEHR™ may be subject to further assessment by CMS. Company expressly disclaims responsibility for any liability associated with Client’s use of such features. Company will not be liable for any claims attributable to errors, omissions, or other inaccuracies in the information or materials contained in talkEHR™.

20.    Client’s Obligations; Network Bandwidth. Client understands that the use of talkEHR™ will require Client to procure and implement, at Client’s sole risk and expense, a telecommunications Network infrastructure with adequate bandwidth (“Adequate Bandwidth”) to accommodate Client’s use of talkEHR™ as well as any other products and/or services which Client uses in connection with the Network. Client agrees to assist Company by providing necessary information regarding any problems with the talkEHR™.

21.    Unanticipated Adverse Consequences. Neither Company nor any Third-Party Source will be responsible for the action or inaction of any healthcare practitioner/User acting for or on behalf of Client hereunder that may result in any liability or damages to anyone due to malpractice, failure to warn, negligence or any other basis in the diagnosis, treatment or care of any patient.



PART - III: General Provisions

22.    HIPAA Compliance. Company warrants and represents that it will use its reasonable commercial efforts to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. 1320d, together with any current and future regulations promulgated thereunder (collectively “HIPAA”). All patient information and data provided by Client to Company shall be kept confidential and not disclosed to anyone except to the extent necessary for Company to perform its obligations hereunder. Company shall make available to Client a Business Associate Agreement (“BAA”) which complies with the requirements of HIPAA.

23.    Payment Procedure. Client agrees to pay all fees associated with this Agreement exclusively by Automated Clearinghouse (“ACH”) payment method. Upon execution of this Agreement, Client agrees to provide to Company all necessary information required to effect payment by ACH. To effect this provision, Client hereby expressly authorizes Company to; (i) immediately, upon execution of this Agreement, debit from Client’s bank account the amount of Nine Hundred and Ninety-Five Dollars ($995.00) as payment of the Setup Fee; (ii) automatically debit from Client’s bank account, on or after the 5th day of each calendar month, payment for all monthly fees and subsequent invoices of any type relating to any services provided by Company to Client. Client hereby agrees and acknowledges that each charge to Client’s account shall be treated as if Client authorized and signed a check to pay Company’s invoice. Client may stop a debit by notifying Company at least three (3) business days prior to the processing date; to be effective, such notice must be provided by client in writing and served via email to payment@carecloud.com. If for any reason, a payment cannot be processed, Company shall notify Client. If, despite such notice, Company is unable to obtain payment, Company may invoice Client, and Client agrees to pay a fifty Dollars ($50.00) special handling fee, in addition to the invoiced amount. Client further agrees that this special handling fee may also be debited from its bank account. In case of any changes to the specified bank account, Client shall promptly, but no later than three (3) business days, inform Company of such changes and provide Company with updated information and a renewed authorization, if necessary.

Further, Client hereby authorizes Company to debit the monthly fee from the same bank account which Client has used to pay the Setup Fee, unless at the time of the execution of this Agreement, Client expressly advises and provides to Company the necessary and required information to utilize another bank account. Unless otherwise prohibited by law, if Client chooses to pay through a method of payment other than ACH, Company shall be entitled to charge a convenience fee in the amount of three and one half percent (3.5%) of the total charged amount.

24.    talkEHR.com Terms of Use. Company hereby grants Client a non-exclusive, non-transferable license to access and use www.talkehr.com, during the term of this Agreement, for internal business purposes, without the right to sublicense such rights. Client shall not grant or permit any other party access to www.talkehr.com and will notify Company immediately of any unauthorized access. Client’s use shall be governed by this Agreement and by the Terms of Use posted on www.talkEHR.com.  

25.    Notices. All notices that are required or permitted to be sent to Company hereunder, including notices of termination, non-renewal or default, shall be in writing and must be sent by certified mail, return receipt requested, to CareCloud, 7 Clyde Road, Somerset, New Jersey 08873, or such other address as is provided by Company on its website for the purposes of service.

26.    Exclusivity. Client agrees and acknowledges that during the term of this Agreement, Client shall ONLY utilize Company as its exclusive EHR, Medical Billing and/or RCM Services provider. Further, Client shall not, during the term hereof, enter into any agreement with any individual or entity for the provision of similar or substantially similar services as being provided by Company under this Agreement. In case Client enters into any such arrangement with a third person or entity, such act shall be deemed as material breach of this Agreement triggering its necessary consequences under the Agreement.

27.    Force Majeure. Should either party be unable to perform its obligations hereunder by reason of Acts of God or any other cause which is beyond the reasonable control of said party, it shall give prompt notice to the other party and its obligations hereunder shall be suspended to the extent made necessary thereby and said party shall not be liable for any resulting failure or delay in performance.

28.    Choice of Law; Forum. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of New Jersey, excluding its conflict of laws principles. The parties irrevocably agree that any action to enforce the provisions of this Agreement or arising under or by reason of this Agreement shall be brought solely in the Superior Court of New Jersey, Somerset County venue.

29.    DISCLAIMER OF WARRANTIES. COMPANY’s ONLY REPRESENTATIONS AND WARRANTIES ARE THOSE SET FORTH IN SECTION 22 (HIPAA COMPLIANCE) HEREOF AND, TO THE FULLEST EXTENT PERMITTED UNDER CONTROLLING LAW, COMPANY EXPLICITLY DISCLAIMS ALL OTHER IMPLIED, EXPRESS OR STATUTORY WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TIMELINESS OR THAT ANY SERVICES/FEATURES WILL BE UNINTERRUPTED. COMPANY DOES NOT GUARANTEE THE PAYMENT, TIMING OF PAYMENT OR PAYMENT AMOUNT OF ANY CLAIM PROCESSED BY COMPANY AND REIMBURSEMENT OR PAYMENT REMAINS THE RESPONSIBILITY OF THE APPROPRIATE PAYER OF HEALTHCARE SERVICES, PATIENT OR THIRD PARTY. THE TALKEHR™ LICENSE GRANTED IS PROVIDED ON ‘AS IS’ BASIS, WITH NO WARRANTIES WHATSOEVER. NO WARRANTY IS GIVEN THAT THE SERVICES/FEATURES WILL BE FREE OF ERRORS OR ANY RELATED USES ON YOUR COMPUTER WILL NOT ADVERSELY AFFECT YOUR HARDWARE, SOFTWARE, DATA, SETTINGS, PROGRAMS OR ANY OTHER COMPONENT OF YOUR COMPUTER OR NETWORK. THE COMPANY DOES NOT WARRANT THAT TALKEHR™ WILL MEET YOUR REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED. THE COMPANY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF TALKEHR™.

30.    LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR ANY CAUSE(S), INCLUDING BUT NOT LIMITED TO BREACH OF THE AGREEMENT, DATA LOSS OR CORRUPTION, BUSINESS INTERRUPTION, FAILURE, DELAY OR SERVICE INTERRUPTION, WHETHER UNDER CONTRACT, TORT OR ANY OTHER THEORY OF LAW OR EQUITY, EXCEED, UNDER ANY CIRCUMSTANCES, THE LESSER OF (A) THE ACTUAL LOSS INCURRED BY CLIENT OR (B) THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT TO COMPANY DURING THE PERIOD OF TIME THAT THE BREACH OCCURS. COMPANY SHALL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER TO ANY PATIENT OF CLIENT OR OTHER THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

31.    Protection of Data Company agrees to maintain an appropriate backup system and insurance to guard against the risk of the loss of Client’s data during the term of this Agreement and to maintain and protect all confidential data in compliance with HIPAA. Upon non-renewal or termination of this Agreement, Company will provide Client with demographic details and standard outstanding claim information in an electronic format upon Client’s satisfaction of all its contractual obligations, including full payment of Company’s final invoice.

32.    Third Party Services. Certain Additional Services may be provided by third parties. While Company shall be solely responsible for the payment of any associated third-party fees, Additional Services, in addition to the terms and conditions set forth in this Agreement, may be subject to the relevant third party’s terms and conditions of service. Company retains the right to substitute any Additional Services with other services of equal or greater value.

33.    Statute of Limitations. Both parties agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or in any manner related to the Agreement must be filed within six (6) months after such claim or cause of action arose. If such a claim or cause of action is not filed within said six (6) month time period, the claim or cause of action shall be forever barred. Each claim for reimbursement shall be considered separately and the parties hereby waive any right to assert a continuing wrong or continuing breach theory in an effort to extend the statute of limitations with regard to any particular claim.

34.    Indemnification. Company shall indemnify Client and hold it harmless from all cost, expense, or liability, including attorney’s fees and court costs, arising out of Company’s failure to pay any service fees associated with any services/features that Client is entitled to receive/use under the Agreement. Client shall indemnify Company and hold it harmless from all cost, expense, or liability, including attorney’s fees and court costs, arising out of Client’s or any User’s improper use of any services/features provided under the Agreement (including any Additional Services) or its failure to comply with controlling payer (commercial or governmental), professional or governmental rules, laws or requirements. The foregoing right to indemnification shall only exist if the party requesting indemnification: (a) promptly provides notice of the claim, demand or proceeding to the other party hereunder; (b) promptly provides all available information, assistance and reasonable authority to defend to the other party hereunder; and (c) has not compromised or settled such claim, demand or proceeding without the other party’s prior written consent, which shall not be unreasonably withheld.

35.    Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

36.    MISCELLANEOUS PROVISIONS.  

1. All rights not expressly granted to Client in this Agreement are reserved by Company.
2. Client hereby authorizes Company to contact (if and when appropriate in its discretion) insurance providers, patients, referring doctors, hospitals, nursing homes and any other necessary parties and to disclose or obtain information necessary to fulfill its obligations under this Agreement.
3. Unless otherwise agreed to in writing, Company shall not be obligated to perform any services with respect to patient encounters that occurred prior to the Commencement Date.
4. Client is expected to maintain a civil and professional composure at all times during the course of communication with all Company’s representatives or other employees.
5. Upon the termination or expiration of this Agreement, Client will continue to provide Company with copies of all EOBs, ERAs and other proofs of payment received by Client within the thirty (30) day period following the date of termination or expiration.
6. This Agreement shall not be legally binding upon Company until: (1) if a copy of the Agreement is executed by Client in writing, Company’s General Counsel’s countersignature; or (2) if the Agreement is executed by Client electronically online, Company’s email confirmation indicating acceptance of the same.
7. Company shall remind patients for unpaid co-payments and self-payments in accordance with its IOU policy and other standard policies and procedures.
8. Client acknowledges that Company is not a debt collector. Client further agrees and represents that it will not deem any balance to be in default until after Company has completed all patient balance due reminding activities.
9. Company may assign or transfer this Agreement, or any of its rights or obligations hereunder, in connection with a reorganization, restructuring, merger, transfer of ownership or sale of all or any part of Company’s assets.
10. If any of the services or products provided by Company to Client under this Agreement are subject to sales or use tax, Client shall be solely responsible for said tax, which shall be in addition to Company’s Fee.
11. Upon the termination or expiration of this Agreement, Company shall retain all rights associated with the content, coding, intellectual property and registered domain name of the customized website described in Section 3 (Additional Services).
12. The content provided on www.talkehr.com, any other subdomains and on talkEHR™ is the copyright of CareCloud, Inc. All intellectual property rights are reserved. The trademarks and images used on these websites are protected by intellectual property laws and may not be reproduced or appropriated, in whole or part, in any format, without the written permission of Company.
13. Client undertakes to advise Company of any and/or all of Client’s patients who choose not to receive automatically generated appointment/balance reminding calls or emails. Unless so notified by Client in writing, Company shall process such calls and/or emails as though patients of Client have consented to receive such calls and/or emails. Client shall indemnify and hold Company harmless from all cost, expense, liability or other penalty arising out of Client’s failure to notify Company as aforesaid.
14. Company’s failure to enforce any provision of this Agreement shall neither be deemed a waiver of such provision nor of the right to enforce such provision.  

37.    ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior written, and all prior or contemporaneous oral agreements, representations, warranties, statements, promises and understandings with respect to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by the parties or by Client’s online acceptance of a modification to this Agreement.