TERMS of SERVICES AGREEMENT
WHEREAS, The Practice wishes to acquire access to certain technology and services (collectively the “Services,” as further described herein) to allow the physicians of The Practice and their patients to more effectively monitor patients’ care, while allowing The Practice to be reimbursed for the time spent monitoring patients’ data by means of the Services.
WHEREAS, RPM Healthcare (RPM) has agreed to provide the Services to The Practice, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this
Agreement, the parties hereby agree as follows:
1. The Services.
1.1 Purpose; Term . This Agreement sets forth the terms and conditions under which RPM agrees to license certain hosted “software as a service” through a mobile app and dashboard as further set forth in Exhibit A (the “Services”).
1.1.1 Authorized Users. Unless otherwise limited on Exhibit A, The Practice and any of its agents including, but not limited to its employees and consultants or other agents that have a need to use the Services for the benefit of The Practice shall have the right to operate and use same pursuant to the Terms of Service provided with on-line access to the Services, incorporated herein by reference. To the extent of any inconsistency between the Terms of Service and the remainder of this Agreement, this Agreement shall prevail.
1.2 Control of Services . The method and means of providing the Services shall be under the exclusive control, management, and supervision of RPM. RPM will, however, make a good faith effort to promptly fulfill the requests of The Practice and address concerns raised by The Practice.
1.3 Time of RPM Performance of Services. RPM shall provide the Services during the applicable Service Windows as described in an Exhibit A .
1.4 Subcontractors. RPM may hire individual independent contractors to work under its supervision in providing the Services.
2. Term and Termination.
2.1 Term. The term will commence on the Start Date shown on Exhibit A and continue until terminated by either party with at least thirty (30) days prior written notice.
3. Fees and Expenses.
3.1 Payment. The Practice shall be responsible for and shall pay to RPM the fees as described in Exhibit A. The Practice agrees to pay RPM the invoiced monthly fees for that service. Fees are charged for Services provided for each month prior to the invoice date and are non-refundable. The Practice agrees to pay in full per RPM’s standard net 30 billing terms. RPM will not invoice for the first partial month or the second full month . If The Practice terminates this Agreement within ninety (90) days of the Start Date, no invoice will be issued and no payment will be due for any Services provided prior to termination.
3.2 Taxes. RPM represents and warrants that it is an independent contractor for purposes of federal, state, and local employment taxes. RPM agrees that The Practice is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for RPM.
4. RPM Resources.
RPM shall provide resources sufficient to ensure that the Services continue materially uninterrupted, considering the applicable Service Windows, that The Practice Data is secure to commercially reasonable standards, and provide for a reasonable response time for inquiries from The Practice’s users of the Services (collectively, “RPM Resources”).
5. Representations and Warranties.
5.1 Mutual Representations and Warranties. Each of The Practice and RPM represents and warrants that:
5.1.1 it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation;
5.1.2 it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
5.1.3 this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms;
5.1.4 the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors' rights generally and by general equitable principles;
5.1.5 it shall comply with all applicable federal, state local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and,
5.1.6 there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.
6. Non-Disclosure of Confidential Information.
The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.
6.1 Meaning of Confidential Information . For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (a) has been marked "confidential" or with words of similar meaning, at the time of disclosure by such entity; (b) if disclosed orally or not marked "confidential" or with words of similar meaning, was subsequently summarized in writing by the disclosing entity and marked “confidential” or with words of similar meaning; (c) with respect to information and documentation of The Practice, whether marked “Confidential” or not, consists of The Practice information and documentation within any of the following categories: (i) policyholder, payroll account, agent, The Practice, supplier, or contractor lists; (ii) policyholder, payroll account, agent, The Practice, supplier, or contractor information; (iii) information regarding business plans (strategic and tactical) and operations (including performance);
(iv) information regarding administrative, financial, or marketing activities; (v) pricing information; (vi) personnel information; (vii) products and/or and services offerings (including specifications and designs); or, (viii) The Practice past, present and future employee information (ix) processes (e.g., technical, logistical, and engineering); or, (d) any Confidential Information derived from information of
a party. The term "Confidential Information" does not include any information or documentation that was: (a) already in the possession of the receiving entity without an obligation of confidentiality; (b) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (c) obtained from a source other than the disclosing entity without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).
6.2 Obligation of Confidentiality . Then parties agree to hold Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep such information confidential, and explain that they may not use the information for their own personal financial benefit, whether directly or indirectly.
6.3 Cooperation to Prevent Disclosure of Confidential Information .
Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
6.4 Remedies for Breach of Obligation of Confidentiality . The parties acknowledge that breach of the obligation of confidentiality imposed hereunder may give rise to irreparable injury, which damage may be inadequately compensable in the form of monetary damages. Accordingly, either party may obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, including without limitation reasonable attorney fees.
6.5 The provisions of this Section 6 shall survive the termination of this Agreement.
7. Proprietary Rights.
7.1 Pre-existing Materials. The Practice acknowledges that, in the course of performing the Services, RPM may use software and related processes, instructions, methods, and techniques that have been previously developed by RPM (collectively, the “Pre-existing Materials”) and that same shall remain the sole and exclusive property of RPM.
7.2. Data of The Practice . The Practice’s information or any derivatives thereof, contained in any RPM repository (the “The Practice Data,” which shall also be known and treated by RPM as Confidential Information) shall be and remain the sole and exclusive property of The Practice. RPM is provided a license to The Practice Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display The Practice Data only to the extent necessary in the provisioning of the Services.
7.3 No License. Except as expressly set forth herein, no license is granted by either party to the other with respect the Confidential Information, Pre-existing Materials, or The Practice Data. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest in the other party’s Confidential Information, Pre- existing Materials, or The Practice Data, except as may be provided under a license specifically applicable to such Confidential Information, Pre-existing Materials, or The Practice Data.
7.4 The provisions of this Section shall survive the termination of this Agreement.
8. Information Security.
RPM acknowledges that The Practice has implemented an information security program to protect The Practice’s information assets, and The Practice data (collectively, the “Protected Data”). Where RPM has access to the Protected Data, RPM acknowledges and agrees to the following.
8.1 Undertakings by RPM. Without limiting RPM’s obligation of confidentiality as further described herein, RPM shall be responsible for establishing and maintaining a commercially reasonable information security program that is designed to: (i) ensure the security and confidentiality of the Protected Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Protected Data; (iii) protect against unauthorized access to or use of the Protected Data; and (iv) ensure that all subcontractors of RPM, if any, comply with all of the foregoing.
8.1.1 In no case shall the safeguards of RPM’s information security program be less stringent than the information security safeguards used by RPM to protect its own commercially sensitive data. All
personally identifiable information that RPM collects will be stored on a secure cloud-based server using industry-standard encryption technologies, and only authorized personnel have access to the information. RPM shall promptly return or delete The Practice data at any time upon request. In the event of an actual data breach, RPM will notify the The Practice immediately, and as appropriate, will coordinate with the The Practice to support its notification of affected individuals, students and families when there is a substantial risk of harm from the breach or a legal duty to provide notification. The Practice may audit RPM’s the Practices regarding The Practice’s student data upon reasonable written request, at The Practice’s sole expense.
8.1.2. Provided that RPM has implemented the foregoing security program, RPM shall not be responsible for (i) damage to software and hardware caused by computer viruses, (ii) any website disruption or any unauthorized release, publication or dissemination of Protected Data or other personally identifiable information caused by computer hackers, (iii) internet theft, (iv) any damages caused by The Practice’s users of the Services, or (iv) any faulty third party software.
9. General Indemnity.
9.1. Subject to the limitations provided herein, each party (as “Indemnitor”) agrees to indemnify, defend, and hold harmless the other party, its officers, directors, and agents (each, an “Indemnitee” and collectively, the “Indemnitees”) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (collectively “Claims”), including reasonable attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Indemnitee, by reason of any Claim arising out of
or relating to gross negligence or intentional misconduct of Indemnitor, its officers, directors, agents, employees, and subcontractors, during the performance of this Agreement, including, without l imitation, Claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) violation of any law or regulation; (c) viruses; or, (d) breaches of any representations made under this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim was directly caused by the gross misconduct or intentional acts of Indemnitee, its officers, directors or agents, as determined by a court of competent jurisdiction.
9.2. To the extent that any Claims may be suffered by, accrued against, charged to, or recoverable from any The Practice Indemnitee, arising out of a Claim that the Services infringe or misappropriate any United States or foreign issued patent, copyright, trade secret, trademark, or other proprietary right (an “IP Claim”), then RPM shall, at its expense, and as The Practice’s sole remedy for such Claim: (a) obtain for The Practice the right to continue using such Services; (b) replace or modify such Services so that it does not infringe upon or misappropriate such proprietary right and is free to be delivered to and used by The Practice; or, (c) in the event that RPM is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, RPM shall reimburse to The Practice the full cost associated with Termination Assistance Services and refund all amounts paid by The Practice for services during the Term and forego any outstanding fees that would have otherwise been due and owing.
10. Indemnification Procedures.
Promptly after receipt by Indemnitor of a threat of any action, or a notice of the commencement, or filing of any action against Indemnitor or any Indemnitee, Indemnitee shall give notice thereof to Indemnitor, provided that failure to give or delay in giving such notice to Indemnitor shall not relieve Indemnitor of any liability it may have to the Indemnitor or any Indemnitee except to the extent that Indemnitor demonstrates that the defense of such action is prejudiced thereby. Indemnified party shall not independently defend or respond to any such claim; provided, however, that: (a) Indemnified Party may defend or respond to any such claim, at Indemnifying Party's expense, if Indemnified Party's counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against Indemnitor; and, (b) Indemnified Party shall have the right, at its own expense, to monitor Indemnifying Party 's defense of any such claim. Indemnifying Party shall have sole control of the defense and of all negotiations
for settlement of such action provided that any settlement shall not be adverse to Indemnified Party without its consent. At Indemnifying Party's request, Indemnified Party shall cooperate with Indemnifying Party in defending or settling any such action; provided, however, that Indemnifying Party shall reimburse Indemnified Party for all reasonable out-of-pocket costs incurred by Indemnified Party (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
11. Limitation of Liability.
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY FOR INDEMNIFICATION OBLIGATIONS, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILFULL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section and all indemnification obligations shall survive the termination of this Agreement.
12. HIPAA Compliance.
RPM and The Practice agree that, to the extent required by Legal Requirements, the services provided under this Agreement will be used in compliance with all material respects of all federal and state-mandated regulations, rules, or orders applicable to the services provided herein, including but not limited to regulations promulgated under Title II, Subtitle F of the Health Insurance Portability and Accountability Act (Public Law 104-91) (HIPAA).
13.1 Relationship between The Practice and RPM. RPM represents and warrants that it is an independent contractor with no authority to contract for The Practice or in any way to bind or to commit The Practice to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of The Practice. Under no circumstances shall RPM, or any of its staff, if any, hold itself out as or be considered an agent, employee, joint venture, or partner of The Practice. In recognition of RPM’s status as independent contractor, The Practice shall carry no Workers’ Compensation insurance or any health or accident insurance to cover RPM or RPM’s agents or staff, if any. The Practice shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither RPM nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of The Practice.
13.2 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States of America.
13.3 Dispute Resolution. In the event of any dispute or disagreement between the parties with respect to the interpretation of any provision of this Agreement, or with respect to the performance of either party hereunder, appropriate The Practice and RPM management personnel, or their designees, will meet for the purpose of resolving the dispute. If the parties are unable to resolve the dispute within five (5) working days, or as otherwise agreed, either party will have the right to submit the dispute to RPM’s vice president level and The Practice’s vice president level (the “Representatives”) who will meet as often as the parties reasonably deem necessary in order to gather and furnish to each other all essential, non-privileged information that the parties believe germane to resolution of the matter at issue. During the course of these non-judicial dispute resolution procedures, documents used to resolve the dispute shall be limited to essential, non-privileged information. All requests shall be made in good faith and be reasonable in light of the economics and time efficiencies intended by the dispute resolution procedures. The Representatives may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both parties, to render non-binding opinions. No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) calendar days following initiation of negotiations under this Section or for such shorter period as the parties may mutually agree to in writing. Either party
may then seek whatever remedy is available in law or in equity. The provisions of this Section will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality as further described herein.
14.4 Compliance With Laws. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.
14.5 Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. RPM will cooperate with any The Practice supplier performing services, and al parties supplying hardware, software, communication services, and other services and products to The Practice. RPM agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
14.6 Force Majeure. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. Configuration changes, other changes, viruses/malware, or other errors or omissions introduced, or permitted to be introduced, by RPM that result in an outage or inability for The Practice to use the Services shall not constitute a force majeure event.
14.8 No Waiver . The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
14.9 Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by electronic delivery followed by personal service or by United States mail, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party.
14.10 Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
14.11 Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between The Practice and RPM as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties.
14.12 Cumulative Remedies. Unless otherwise set forth above, all rights and remedies of The Practice herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against RPM for the enforcement of this Agreement, and temporary and permanent injunctive relief.
Executed on the dates set forth below by the undersigned authorized representative of The Practice and RPM to be effective as of the Effective Date.
Statement of Work
This Exhibit A - Statement of Work shall be incorporated in and governed by the terms of that certain Services Agreement by and between “The Practice” and RPM Healthcare LLC (“RPM”) as of the first registration date which shall be the “Start Date”, as amended (the “Agreement”). Unless expressly provided for in this Exhibit A , the provisions contained in the Agreement shall prevail in the event of any inconsistency.
|RPM will provide The Practice with ongoing access to RPM’s Migraine Monitor Dashboard, which will include real-time data reporting for an unlimited number of patients using RPM’s Migraine Monitor mobile app. As the patients enter their triggers, symptoms and treatments physicians in The Practice will see that data processed, in real-time, on the dedicated Migraine Monitor Dashboard.
Any services performed in addition to those outlined above will be negotiated as a separate proposal.
|Online access to the Migraine Monitor Dashboard and Migraine Monitor mobile app will be available 24 hours per day, 7 days per week, except for scheduled downtime not to exceed 20 hours per month. Customer service will be available 8:00-5:00 PM ET.
|ALL SERVICE FEES ARE WAIVED UNTIL FURTHER NOTICE.
|Terminable on thirty (30) days written notice