Phyzit TCM™ Master Services Agreement                                                Phyzit®, Inc.

 

PLEASE READ THESE TERMS OF SERVICE CAREFULLY.

BY SIGNING THE Phyzit TCM Services Agreement PROVIDED AT INSTALLATION, RECIPIENT AGREES TO THESE TERMS OF SERVICE.

 

These Terms of Service constitute an agreement (this “Agreement”) by and between Phyit, Inc,, an Arkansas corporation (“Provider”) and each customer of Provider’s Phyzit TCM service (“Recipient”).

 

1.    Definitions.

(a)  “Account” refers to the Service plans and features provided to Recipient at the time of configuration by Provider at the time of enrollment and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through the Service’s customer portal.

(b)  “T&C” refers to Provider’s Terms and Conditions of Use, posted at http://www.phyzit.com/terms-of-use as such policy may change from time to time.

(c)  “Authorized Representative” refers to agents of the Provider and Recipient that are authorized to act on behalf of each party to create legal relationships.

(d)  “Data Policy” refers to Provider’s standard data deletion policy, as such policy may change from time to time.

(e)  “Effective Date” refers to the date of commencement of the Service as listed in Recipient’s Account.

(f)   “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.

(g)  “Recipient Data” refers to data in electronic form input or collected through the Service by or from Recipient.

(h)  “Privacy Policy” refers to Provider’s privacy policy, posted at www.phyzit.com/privacy-policy, as such policy may change from time to time.

(i)    “Service” refers to Provider’s web and mobile applications and all related products, software and services. The Service includes such features as are set forth on Provider’s website (www.phyzit.com), as Provider may change such features from time to time, in its sole discretion.

 

2.    Service & Payment.

(a)  Service. Provider will provide the Service to Recipient pursuant to its standard policies and procedures then in effect.

(b)  Payment. Recipient will pay Vendor such Service fees as are required in Recipient’s Account, and these fees will be invoiced at the end of each month. Payment on each invoice shall be due no later than the 30th day following Provider’s issuance of such invoice

(c)  Fees.  The fees are payable by Recipient to Provider as defined in the Phyzit TCM Services Agreement or alternate agreement signed by both parties.

3.    Materials, Software, & IP.

(a)  Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.

(b)  IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.

4.    Online Policies.

(a)  T&C. Recipient will comply with the T&C. In the event of Recipient’s material breach of the T&C, including without limitation any copyright infringement, Provider may suspend or terminate Recipient’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement.

Neither this Agreement nor the T&C requires that Provider take any action against Recipient or any other customer for violating the T&C, but Provider is free to take any such action it sees fit.

(b)  Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Provider’s employees or linked to Provider’s website (www.phyzit.com).

5.    Each Party’s Warranties.

(a)  Recipient’s Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is either (x) a corporation or other business entity authorized to do business pursuant to applicable law or (y) an individual 18 years or older.

(b)  Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

(c)  Disclaimers. Except for the express warranties specified in this section 4, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error or immaterial interruption.

6.    Limitation of Liability. IN NO EVENT: (a) WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $1,000; AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF RECIPIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, Provider’s liability will be limited to the maximum extent permissible.

7.    Data Management.

(a)  Access, Use, & Legal Compulsion. Unless it receives Recipient’s prior written consent, Provider: (i) will not access or use Recipient Data other than as necessary to facilitate the Service (see (b) below); and (ii) will not give any third party access to Recipient Data. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.

(b)  Aggregate Data.  Provider may distribute aggregate data pertaining to use of the Service as part of operations under (a)(i) above.  

(c)  Recipient’s Rights. Recipient possesses and retains all right, title and interest in and to Recipient Data, and Provider’s use and possession thereof is solely as Recipient’s agent.

(d)  Retention & Deletion. Provider will retain all Recipient Data until erased pursuant to Provider’s Data Policy.

(e)  Injunction. Provider agrees that violation of the provisions of this Section 8 might cause Recipient irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Recipient will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

8.    Term & Termination.

(a)  Term. This Agreement will continue pursuant to the terms in the Phyzit TCM Services Agreement signed at installation.

(b)  Introductory Period. If Recipient began use of the Service under an Introductory Period, as defined by the Phyzit TCM Services Agreement signed at installation, the terms and termination defined in that document apply to any Introductory Period in effect at that time.

(c)  Termination. Either party may terminate this Agreement by written notice, effective in 30 days following the other party’s receipt of such notice,  notwithstanding section (b).

(d)  Provider termination. Provider may terminate immediately upon:

(i)    Recipient’s breach of PHI

(ii)  Recipient’s failure to make timely payment of fees due to Provider

 

Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

9.    Miscellaneous.

(a)  Disclaimer. The Service is a tool designed to improve Recipient’s ability to manage and bill during the TCM process.  Recipient acknowledges that Recipient is solely responsible for all coding and billing decisions.  The Service and the Provider are not responsible for, nor do they provide or determine what codes are applicable or how they should or should not be billed.  All coding, billing and processing decisions are the responsibility of the Recipient.

(b)  Data-entry. Recipient is responsible for all patient and practice data entered into the Service.  Recipient is responsible for maintaining the correctness of data entered into the Service.

(c)  Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 10 days after they are sent. Recipient may send notices pursuant to this Agreement via email to Provider’s Chief Privacy & Security officer (stewart@phyzit.com), and such notices will be deemed received 5 days after they are sent.

(d)  Amendment. Provider may amend this Agreement (including the Data Policy) from time to time by posting an amended version at its website and sending Recipient notice thereof.

Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment.

In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next Term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 9 above).  

Recipient’s continued use of the Service following the effective date of an amendment will confirm Recipient’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by Authorized Representatives of each party.

Notwithstanding the foregoing, Provider may amend the T&C or Privacy Policy at any time by posting a new version at its website and sending Recipient notice thereof, and such amended version will become effective 10 business days after such notice is sent.

(e)  Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.

(f)   No Waiver.  Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

(g)  Force Majeure. To the extent caused by force majeure (e.g., chance occurrence, unavoidable accident, act of God), no delay, failure, or default will constitute a breach of this Agreement. 

(h)  Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

(i)    Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Arkansas, without reference to such State’s principles of conflicts of law. The parties consent to venue in Pulaski County.

(j)    Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

(k)  Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA or Data Policy, the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will govern.

Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.

Version 2.0 Revised 01/24/2017