THIS TALKPRO™ 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™.
2. Software License. Beginning from the Commencement Date, 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™ through the Company’s assigned IDs’. The practice management features available hereunder to Client include, in a speech recognition enabled environment, creation/generation of healthcare claims and charts, systematic claims scrubbing, Generating HCFA forms, practice management scheduler, automated appointment and balance reminder calls, and Company’s standard practice management reports. Client may, at any time, elect to upgrade its current plan by executing appropriate agreement and start receiving full suite of Company’s software, practice management and revenue cycle management services/products/features.
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 up to 5GB. Additional storage up to 10GB is available subject to a charge of $25 per month. (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) wellness visit reminder calls subject to a charge of $50 per Provider per month; (L) flu shot reminder calls subject to a charge of $200 per phone blast; and (M) mHealth apps which include: (i) talkCheckin (practice/ Provider) application subject to a charge of $100 per year; (ii) talkDictate application to utilize transcription service at a rate of 4¢/65-character line; (iii) talkRx ; and (iv) ICD9-ICD10 Converter app. 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:
B. Telehealth Platform Fee. Company will not charge a separate fee for Client’s/its Providers’ access/utilization of Telehealth Platform under this Agreement for provision of Telehealth Services.
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.
4. Setup Fee. Upon 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. As a condition of Client’s license to use Company’s products and/or services hereunder, Client shall pay Company, a monthly fee in the amount of Two Hundred and Forty-Nine Dollars ($249.00) per month for each Provider in Client’s practice during the term of this Agreement (“Fee”), in addition to such other fees as are set forth in this Agreement or agreed upon hereafter by the parties in writing. 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 14 (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 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. 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 one (1) year, 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 solely be responsible for updating all information necessary to utilize Company’s services/products/features, including but not limited to, information pertaining to Client’s Provider/User profile(s), Provider number(s), participating insurance companies, laboratories & pharmacies, referring physicians, hospitals and other facilities at which Client provides 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 and/or documents (as applicable). Client warrants and represents that all information entered/updated in talkEHR™ by Client or its Users will be accurate, validated, verifiable and properly documented and that Client has obtained any necessary patient consents, authorizations and assignments.
8. EDI Services: Client understands and agrees that Client shall solely be responsible for all billing related activities/functions, including but not limited to, provider’s enrolment, claim entry, payment posting, follow-up and related EDI services for electronic and/or paper claim submission and receipt of ERAs/EOBs. Client may during the term of this Agreement, generate claim files for submission to healthcare insurances for processing & patient statements through any third-party vendor.
9. Client’s Obligations. Client understands and agrees that utilization hereunder requires internet access for purposes of accessing, transmitting, posting, receiving and processing information. Client agrees to comply with scheduled downtime events and, if necessary, emergency downtime events. Company may, but shall not be required to, provide advance notice of scheduled downtime events. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems. Client agrees to assist Company by providing necessary information regarding any problems encountered while using talkEHR™.
10. Protection ofIDs. 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 imposed by company. 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™; (2) instructing Client`s User or employees, for any IDs Company has provided for a particular User, to not allow another individual to use those IDs for any purposes; (3) any charges, damages or losses that may be incurred or suffered as a result of any failure to maintain 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. Client shall not grant or permit any other party access to its talkEHR™ account and will notify Company immediately of any unauthorized access/use thereof. Client shall ensure compliance by its employees, Users and agents with the terms of this Agreement.
11. Support/Training. 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 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 a 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, Eastern Standard Time, excluding holidays. Nothing shall obligate Company to perform any technical support services, except to the extent expressly set forth herein. Client’s patient calls/patient helpdesk/billing support is not included under this plan.
12. Data: Company shall maintain a back-up of Client’s talkEHR™ data and insurance to guard against the risk of the loss. During the term of this Agreement, 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.
13. 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.
14. 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 Setup Fee; and (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 products/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 all fees payable hereunder by Client from the same bank account which Client used to pay Setup Fee, unless at the time of 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.
15. Suspension ofServices: Company may suspend Client’s access to talkEHR™ if Client fails to access/operate talkEHR™ for a period of six (6) months and/or utilize services under this Agreement for such period and may also treat it as material breach of this Agreement triggering its necessary consequences under the Agreement. Additionally, 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. 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.
16. 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. Client agrees that it will not use Company’s products/services for unlawful, unauthorized or inappropriate purposes. Further, Client shall solely be liable for its actions and omissions relative to the use of Company’s products/services hereunder and compliance with all controlling laws, regulations and contractual obligations relative to the utilization of these products/services.
17. Unanticipated Adverse Consequences: Neither Company nor any Third Party source will be responsible for the action or inaction of any Provider/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.
18. 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) of 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™.
19. DISCLAIMER OF WARRANTIES: COMPANY’s ONLY REPRESENTATIONS AND WARRANTIES ARE THOSE SET FORTH IN SECTION 13 (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 ENTERED IN TALKEHR™ OR 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 HEREIN 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™ AND/OR ANY FEATURES THEREOF.
20. 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, IF ANY, ACTUALLY PAID BY CLIENT TO COMPANY HEREUNDER 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.
21. Third Party Services. Client acknowledges and agrees that certain services/features under the Agreement may be provided by third parties. Such services/features, in addition to the terms and conditions set forth in the Agreement, may be subject to the relevant third party’s terms and conditions of service, which Client agrees to comply with and be bound by as well.
22. Statute OfLimitations: 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 this 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.
23. 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/products/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/its Providers’ or any User’s improper use of any services/products/features provided under the Agreement (including Telehealth Platform) 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.
24. 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 monthly Fee 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.
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, Inc., 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. 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.
27. 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.
28. 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.
29. MISCELLANEOUS PROVISIONS.
30. 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.