Last Updated: January 31, 2019
INBOX HEALTH MASTER TERMS
These Inbox Health Master Terms (these “Master Terms”) by and between Inbox Health, Inc. (“Inbox Health”), a Delaware corporation located at 770 Chapel Street, New Haven, CT 06510, and the entity who executed the applicable agreement (“Agreement”) referencing these Master Terms (“Client”). These Master Terms are effective as of the effective date of the Agreement (“Effective Date”).
In consideration of the representations, covenants and agreements contained in these Master Terms, Client and Inbox Health agrees as follows:
- Services. The applicable services to be performed by Inbox Health shall be as described in the Agreement (“Services”).
- Term. These Master Terms will commence from the Effective Date. These Master Terms and the Agreement can be terminated with thirty (30) days’ written notice at any time by either party.
- Fees. The fees shall be stated in the applicable Agreement; provided, however, if Client uses a credit card for payment, Inbox Health will be entitled to increase the fees to account for credit card processing fees.
- Confidential Information.
- Inbox Health agrees not to disclose to anyone other than Client any information about Client’s fee structure, internal compensation, medical billing strategies, or similar business information that would commonly be understood to be confidential or any confidential medical information regarding Client’s medical billing clients’ patients received in the course of performing the Services (collectively, Client’s “Confidential Information”), except as required to bill patients, as required by law or legal or regulatory process or as otherwise provided herein.
- Client agrees that it will not disclose to third parties the business methods, operating processes or documentation of the software employed by Inbox Health to provide the Services or any information about Inbox Health’s fees, operations, business methods or strategies or any other information specifically designated as confidential by Inbox Health except as required by law or legal or regulatory process (Inbox Health’s “Confidential Information”). Each party’s Confidential Information shall remain the property of that party, during and after the termination or expiration of these Master Terms.
- Each party will at all times take reasonable steps to establish and enforce the foregoing by its employees, independent contractors, consultants and vendors. The requirements of this Section 4 shall expressly survive the expiration or termination of these Master Terms. Each party specifically agrees to comply with and assist their counterpart with compliance with applicable state or federal confidentiality requirements as to individual patient information. Notwithstanding the preceding sentences, Client agrees that Inbox Health may use Client information for research and statistical compilation purposes, so long as Client and patient identifying information is kept confidential in accordance with applicable law and that any product of the foregoing uses shall be the property of Inbox Health.
- Neither party shall be required to treat as confidential any information that the recipient party can demonstrate by competent written proof: (i) was in such party’s possession or known to it prior to receipt from the other party; (ii) was publicly available at the time of receipt or later becomes publicly available through no act or omission of such party; (iii) was or later becomes lawfully available to such party from a source other than the other party and such source was not under any obligation of confidentiality or nondisclosure; or (iv) was or is developed by such party independent of the confidential information of the other party. In the event the receiving party is required by law or regulation, court order, subpoena, or other judicial or government request to disclose the other party’s confidential information, the receiving party shall, if practicable and permitted by law, promptly notify the other party to enable that party to assert whatever exclusions or exemptions that may be available to it under the law. In the event disclosure is required, the receiving party will disclose only that portion of the confidential information required by such law or regulation, court order, subpoena or other judicial or government request to be disclosed and notwithstanding such disclosure, will continue to treat such information as confidential for all other purposes under these Master Terms.
- Force Majeure. Performance of duties hereunder may be impeded by occurrences beyond the control of one or both parties. Events such as flood, earthquake, hurricane, tornado, blizzard and other natural disasters; fire, riot, war or civil disturbance; strikes by common carriers; extended loss (more than 48 hours) of utilities (except for non-payment); and similar events shall excuse the affected party from performance of services impeded by such event(s). Nevertheless, each party has a duty to use reasonable efforts to prevent or mitigate such impediments. In the event that any catastrophe shall prevent the timely billing of Client’s services by Inbox Health for more than fifteen (15) working days, Client shall have the right to secure, without penalty, substitute services until Inbox Health can restore services, at which time Inbox Health’s responsibilities and rights under these Master Terms shall be reinstated. For its protection, Client shall, at its own expense, purchase and maintain business interruption and/or accounts receivable insurance to cover any such catastrophic event, as stated above.
- Price and payment.
- Inbox Health will invoice client monthly. Any fees that are not paid within 30 days of the invoice date are subject to a late payment fee assessed at 1.5% per month or the highest amount allowed by law, whichever is less. Client shall be liable for all reasonable collection costs including attorney fees, court costs and other charges necessary for collection of past due amounts.
- If any amounts owed by Client under these Master Terms are more than thirty (30) days overdue, in addition to any of Inbox Health’s other rights and remedies under these Master Terms, Inbox Health shall have the right to suspend the Services provided to Client, without any liability to Client or any third party, until all past due amounts, interest, late payment fees and collection costs (if any) are paid in full. Inbox Health shall provide Client with fifteen (15) days advance written notice prior to any such suspension. In addition, in the case of suspension of Services, a service restoration fee shall be paid in an amount determined by Inbox Health to be sufficient to compensate it for additional effort required to suspend and then resume Services.
- Warranty Disclaimer
- Inbox Health represents and warrants that all Services will be performed in good and workmanlike manner by skilled and qualified staff and shall substantially conform to all specifications and descriptions set forth in the Agreement. In the event of a breach of the foregoing warranty, as Client’s sole remedy and Inbox Health’s sole obligation, Inbox Health shall re-perform, at no additional charge to Client, the non-conforming Services.
- EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 ABOVE, INBOX HEALTH DISCLAIMS ANY AND All EXPRESS OR IMPLIED WARRANTIES OF ANY KIND RESPECTING THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability.
- Except for (i) Client’s non-payment of fees owing to Inbox Health under these Master Terms or (ii) a breach of Section 9 herein (Use of Proprietary Software), in no event shall either party be liable under these Master Terms to the other party or any third party for any indirect, special, incidental, punitive, or consequential damages of any type or any damages for business interruption, lost profits, lost revenue, business losses, anticipated savings, loss of data, loss of use, costs of procurement of substitute goods or services, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not such party has been advised of the possibility of such damages, the foregoing limitation shall apply even if the non-breaching party’s remedies under these Master Terms fail of their essential purpose.
- In no event shall Inbox Health’s total aggregate liability arising out of or related to any and all claims under these Master Terms (whether arising out of or related to breach of contract, tort (including negligence) or otherwise) exceed the fees paid by Client to Inbox Health under these Master Terms in the one year prior to the act that gave rise to the liability. The foregoing limitation shall apply even if Client’s remedies under these Master Terms fail of their essential purpose.
- Use of Proprietary Software.
- Inbox Health will provide Client with access to certain Inbox Health’s proprietary, Internet-accessible software (“Inbox Health’s Proprietary Software”) configured for use with the Services identified in these Master Terms. Subject to the terms and conditions of these Master Terms, Inbox Health grants Client the right to access Inbox Health’s Proprietary Software and any modules to which Client is entitled through the Master Terms. Any such access shall be through the Internet. Client may only use Inbox Health’s Proprietary Software for Client’s own internal use, solely in connection with Client’s own internal business activities including supporting covered medical practices and their patients. Client may download any reports or data of Client during the term of these Master Terms.
- Inbox Health is and shall remain the sole and exclusive owner of all rights, title and interest to Inbox Health’s Proprietary Software, databases and data, and all improvements, enhancements, modifications, and derivative technology to Inbox Health’s Proprietary Software, whether made on behalf of Client or not, including all copyrights and other intellectual property therein. Inbox Health reserves all rights not expressly granted to Client in these Master Terms.
- Except as expressly authorized by Inbox Health, Client shall not, and shall not allow third parties, to: (i) download or copy Inbox Health’s Proprietary Software or otherwise reproduce Inbox Health’s Proprietary Software or any portion thereof, (ii) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of Inbox Health’s Proprietary Software, (iii) permit, rent, sell, lease, assign, resell, license, sublicense, distribute or otherwise transfer the use of or access to Inbox Health’s Proprietary Software for use by third parties, (iv) use Inbox Health’s Proprietary Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or create, write or develop any derivative technology or software program based on Inbox Health’s Proprietary Software or any Confidential Information belonging to Inbox Health.
- Client recognizes that Inbox Health’s Proprietary Software has substantial monetary value and is considered a trade secret containing Confidential Information belonging to Inbox Health. Client shall ensure that any identification labels or legal notices contained in any aspect of Inbox Health’s Proprietary Software are not modified, suppressed or in any other way made inconspicuous. Client acknowledges that Inbox Health’s Proprietary Software is at times dependent upon the operating system of the device and that not all features are available on all device operating systems.
- Client will access Inbox Health’s Proprietary Software using username and passwords. User names and passwords will only be issued to employees of Client or third parties that Inbox Health approves in writing. Inbox Health reserves the right to refuse issuing user names and passwords to such third parties that Inbox Health deems to be direct competitors of Inbox Health. In addition, Client may access Inbox Health’s Proprietary Software using specific static Internet protocol (IP) addresses. Client shall be solely responsible for issuing, controlling and monitoring use of user names, passwords and static IP addresses and shall take all reasonable steps to safeguard user names and passwords and access to any such static IP address. Client shall immediately notify Inbox Health of any unauthorized disclosure or use of the passwords or access to Inbox Health’s Proprietary Software or the need to deactivate passwords and provide to Inbox Health its reasonable cooperation to remedy such unauthorized disclosure or use. Passwords are subject to cancellation or suspension by Inbox Health upon the misuse of passwords by Client.
- Solely in connection with the provision of Services hereunder and subject to the terms and conditions of these Master Terms, Inbox Health grants Client a limited, revocable, non-exclusive, non-transferable right to access and use any reports provided by Inbox Health to Client solely for Client’s internal business purposes.
- The governing law for any claim arising under these Master Terms shall be the laws of the State of Connecticut. The venue for any claim arising under these Master Terms shall be the state and federal courts located In New Haven, Connecticut. Both parties agree to personal and subject matter jurisdiction in the County of New Haven, State of Connecticut and waive any rights to bring a motion based upon jurisdiction or venue. If either Inbox Health or Client employs attorneys to enforce any rights arising out of or relating to these Master Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
- Regardless of the circumstances of termination or expiration of the Master Terms, or portion thereof, the provisions of Sections 3 (Fees), 4 (Confidential Information), 8 (Limitation of Liability), 9.2, 9.3, 9.4 and 10 (General) shall survive the termination or expiration and continue according to their terms.
- No waiver of any term or condition is valid unless in writing and signed by authorized representatives of both parties. No amendment or modification to the Master Terms will be valid unless set forth in writing and signed by authorized representatives of both parties.
- Inbox Health may assign these Master Terms in connection with a merger, acquisition or sale of all or substantially all of its business related hereto. Except as expressly stated in this Section, neither party may assign its rights or obligations under these Master Terms without obtaining the other party’s prior written consent.
- Inbox Health will be excused from failures to perform the Services to the extent that Client or its agents fail to perform any relevant obligations in a timely manner or commit any other act or omission that causes Inbox Health’s failure to perform the Services. Inbox Health shall be entitled to be compensated for any additional material costs incurred as a result of any delay or failure to perform on the part of Client.
- Inbox Health retains the right, in its sole and absolute discretion, to change or add to the terms of these Master Terms at any time, and such amendments will take effect immediately as of the effective date of such change.
- Neither Inbox Health’s Proprietary Software, nor any other technical data received from Inbox Health, nor the direct product thereof, shall be exported or re-exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If Client is an agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier, then the U.S. Government shall agree that use of Inbox Health’s Proprietary Software is subject to the restrictions on use as permitted by FAR S2.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. l, 2000) or successor regulations, or similar acquisition regulations of other applicable U.S. Government organizations.
- Any notice required or permitted by the Master Terms must be in writing in English and delivered by personal delivery, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mall. Notices shall be sent to the address set forth in the introductory clause of these Master Terms or to such other addresses as may be designated by notice from one party to the other.
- Whenever possible, each provision of these Master Terms will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of these Master Terms is found to violate a law, it will be severed from the rest of the Master Terms and ignored and a new provision deemed added to the Master Terms to accomplish, to the extent possible, the intent of the parties as evidenced by the provision so severed. The headings used in the Master Terms have no legal effect.
- Except as may be otherwise provided in the Master Terms, the rights or remedies of the parties hereunder are not exclusive, and either party is entitled alternatively or cumulatively, subject to the other provisions of the Master Terms, to damages for breach, to an order requiring specific performance, or to any other remedy available at law or in equity. Neither party or its subsidiaries or affiliates will bring a claim under these Master Terms more than two years after the cause of action arose.
- These Master Terms and the Agreement constitute the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. The Agreement may only be modified by a writing signed by both parties. The Agreement may be signed in one or more counterparts and delivered via facsimile or other electronic means, each of which will be deemed to be an original and all of which when taken together will constitute the same agreement.