Terms & Conditions
These Terms & Conditions are an integral part of the talkBasic™ Agreement (“Agreement”).
2. Setup Information: Client shall be responsible for updating/providing Company with all information necessary to render services, including but not limited to, information pertaining to Client’s Provider/User profile(s), provider number(s), participating insurance companies, 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).
3. EDI Services: Client understands and agrees that Client shall solely be responsible for all billing related activities/functions, including but not limited to, claim entry, payment posting, follow-up and related EDI services for claim submission and receipt of ERAs. However, Client may during the term of this Agreement, generate claim files for submission to healthcare insurances for processing through any third party vendor.
4. Client’s Obligations: Client warrants and represents that all information entered/updated in talkEHR™ by Client or its Users to Company will be accurate, validated, verifiable and properly documented and that Client has obtained any necessary patient consents, authorizations and assignments. Client agrees to assist Company by providing necessary information regarding any problems with talkEHR™. 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.
5. Suspension of Services: 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.
6. Payment Procedure: Client agrees to pay all fees exclusively by Automated Clearinghouse (“ACH”) payment method within ten (10) days from the date of issuance of invoice. If Company does not receive payment for any invoice after the tenth (10th) day, 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. Client shall provide Company all necessary information required to effect payment by ACH. Client hereby expressly authorizes Company to automatically debit from Client’s bank account, payment for all fees. Client further agrees 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 firstname.lastname@example.org. If for any reason, a payment cannot be processed, Company will 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. Unless otherwise prohibited by law, if Client chooses to pay through a method of payment other than ACH, Company shall charge a convenience fee in the amount of three and one half percent (3.5%) of the total billed amount.
7. 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™.
8. 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.
9. Unauthorized Use: The talkEHR™ license is limited to Client only. By using talkEHR™, Client agrees to comply with the Agreement along with these Terms & Conditions 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 talkEHR™ documentation. Client shall communicate terms hereof to all of Client’s Users, 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.
10. 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 security concerns. 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.
11. Exclusivity: Client agrees and acknowledges that during the term of the Agreement, Client shall ONLY utilize Company as its exclusive EHR Services provider. Further, Client shall not, during the term, enter into any agreement with any individual or entity for the provision of similar or substantially similar services as being provided by Company under the Agreement. In case Client enters into any such arrangement with a third person or entity, such act shall be deemed as material breach of the Agreement triggering its necessary consequences thereunder.
12. 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 a training, schedule a call back) through the talkEHR™ Support Center. Company’s hours of service are Monday to Friday, 9:00 AM through 5:00PM, Eastern Standard Time. Nothing shall obligate Company to perform any technical support services, except to the extent expressly set forth herein.
13. 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.
14. Patient Data: Company shall maintain a back-up of Client’s talkEHR™ data. During the term or following the termination/expiration of the 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.
15. 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.
16. DISCLAIMER OF WARRANTIES: COMPANY’s ONLY REPRESENTATIONS AND WARRANTIES ARE THOSE SET FORTH IN SECTION 12 (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 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™.
17. 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.
18. 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 and these Terms & Conditions, 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.
19. 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.
20. 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 Features) 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.
21. Miscellaneous Provisions: