Last Updated: May, 12, 2023
- The Agreement with SystemsTX, LLC (“SystemsTX”)
Welcome to the VerifyTX software-as-a-service (SAAS) and software applications associated therewith, including a browser interface, access, and storage (hereinafter, collectively, the “Services,” or “Service”).
This Agreement with SystemsTX (hereinafter the “Agreement,” or “Terms of Service”), together with any additional terms, updates, supplements, and all SystemsTX rules and policies to which our customers (hereinafter “Customer”, ”you,” or “your”) agree to when registering for and/or using the Services, governs Customer’s right to use the Services. These Terms of Service apply to Customer and all its personnel, agents and subcontractors who use the Services, regardless of their level of participation.
The Services are operated by SystemsTX, LLC (hereinafter “we,” “us,” “SystemsTX,” or “our”) and the content on or provided by the Services is owned by us, unless otherwise indicated herein. As used herein, the term “SystemsTX” refers to SystemsTX, LLC and its officers, subsidiaries, affiliates, parent companies, joint ventures, and any other corporate entities under common ownership, successors, assigns, directors, officers, agents, service providers, suppliers, and employers.
SYSTEMSTX IS NOT A HEALTHCARE PROVIDER. SYSTEMSTX DOES PROVIDE ANY FORM OF MEDICAL ADVICE, NOR DOES IT PROVIDE MEDICAL OR DIAGNOSTIC SERVICES.
CUSTOMER EXPRESSLY ACKNOWLEDGES THAT IT HAS READ THE TERMS OF SERVICE AND UNDERSTANDS THE OBLIGATIONS, RIGHTS, CONDITIONS, TERMS, RESTRICTIONS, CONDITIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH HEREIN. BY CLICKING ON THE AGREE AND SUBSCRIBE BUTTON, EXECUTING A MASTER SERVICES AGREEMENT (OR “MSA”) THAT REFERENCES THESE TERMS OF SERVICE AND/OR CONTINUING TO USE THE SERVICES OR REGISTER FOR THE SERVICES, CUSTOMER EXPRESSLY CONSENTS TO BE BOUND BY THESE TERMS OF SERVICE AND GRANT TO SYSTEMSTX THE RIGHTS SET FORTH HEREIN.
PLEASE READ THE DISPUTE RESOLUTION PROVISION BELOW BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SYSTEMSTX AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO YOU AND SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES.
Customer is registering for and will be using SystemsTX’s proprietary Services developed by SystemsTX, and its agents, to access SystemsTX systems, databases, applications, processes, and other SystemsTX assets. Customer acknowledges that in exchange for use of the Services, Customer will be charged a fee/cost as agreed upon by Customer and SystemsTX in an MSA, via the web application of the Services or as otherwise agreed by the parties. Therefore, the (i) terms and conditions stated herein, and (ii) any updated terms and conditions in the future and accessible in the interface of the Services (hereinafter referred to in their collective as “Terms of Service”) apply to the registration and any right to use and/or access the Services, including the services and/or software applications associated therewith.
- Acceptance of Terms
By using the Services in any way, Customer is agreeing to comply with these Terms of Service. In addition, when using the Services, Customer agrees to abide by any applicable SystemsTX rules and policies, which may change from time to time. Should Customer object to any term or condition of the Agreement, any rules, policies, statements, or guidelines provided by SystemsTX governing use of the Services, or any subsequent modifications thereto or become dissatisfied with SystemsTX in any way, Customer’s only recourse is to immediately discontinue use of SystemsTX’s Services. SystemsTX has the right but is not obligated, to strictly enforce the Terms of Service through self-help, active investigation, litigation, and prosecution.
Acceptance of the Terms of Service can be, but is not required to be, met by (i) clicking a button indicating Customer accepts or agrees to the terms and conditions; (ii) executing an MSA that references these Terms of Service, (iii) downloading any portion of the Services; or (iv) accessing and/or using any portion of the Services. By registering for the Services and using the Services, Customer also agrees that Customer has read, understands, and accepts the Terms of Service.
By using the Services, Customer also agrees that Customer will not use the Services for any purpose that is unlawful or in contravention of these Terms of Service.
SystemsTX reserves the right to change these Terms of Service from time to time without notifying Customer. If Customer objects to any such changes, Customer’s sole recourse shall be to cease using the Services. Continued use of the Services following the effective date of any such changes shall indicate Customer’s acknowledgment of such changes and agreement to be bound by the Terms of Service, as modified. When we post changes to these Terms of Service, whether at registration for our Services, within the interface for our Services, or by email or other communication method, we will update the “last updated” date at the top of these Terms of Service. If there are material changes to these Terms of Service, we will notify you either by prominently posting a notice of such changes or by directly sending you a notification. You agree that your continued use of our Services or associated websites or products after notice shall constitute your acceptance of the revised Terms of Service.
SystemsTX may cease all or part of the Services at any time without notice and is not obligated to refund any monies received from Customer. If Customer does not agree to any of the terms and conditions in these Terms of Service, please do not register for or use the Services. To ensure Customer’s compliance with the above, SystemsTX recommends Customer review and print these Terms of Service.
- Use of the Services
Information About Our Organization and the Services
The Services provide a technology platform that automates and runs core components of a professional electronic healthcare insurance and healthcare eligibility verification platform, allowing healthcare professionals to focus on other aspects of their business. The Services automate and assist you with electronic verification of individual health insurance eligibility, benefits, and claims status (hereinafter “Health Insurance Information”) for a potential or current healthcare patient (hereinafter the “Patient”). Such assistance includes, but is not limited to, handling certain tasks of inputting information including, but not limited to, an individual’s name, identity information, health insurance, and health information, including proposed treatment information, to verify and obtain data associated with the individual’s health insurance eligibility, benefit and claims information.
Customer will use the Services only in connection with the conduct of Customer’s business as a healthcare representative or healthcare provider. The Services will at all times be and remain in the possession and control of Customer, and Customer agrees that Customer will restrict access to and use of the Services to healthcare representatives and providers and employees thereof who are permitted to access the information and documentation available on the Services based upon all applicable laws, rules, and regulations unless otherwise agreed to by SystemsTX in writing.
The Services shall at all times be used and operated by Customer under and in compliance with the laws and regulations of the jurisdiction in which the Services may be provided, and in compliance with all lawful acts, rules, and regulations and orders of any commissions, boards or other legislative, executive or judicial bodies or officers having power to regulate or supervise the use of the Services, including those related to data privacy, health care privacy, international communications, and the transmission of technical or personal data.
In order to access and/or use SystemsTX’s Services, SystemsTX will create an account for Customer, and Customer may then create individual User sub-accounts for its authorized Users. “User” means any employee, subcontractor or agent who is authorized by Customer to utilize the Services. Customer agrees that Customer will, and will cause its Users to, keep and maintain Customer’s and Users’ account credentials, other identifiers (e.g., Employer Identification Number (hereinafter “EIN”) or National Provider Information (hereinafter “NPI”) and password confidential and not disclose Customer’s or Users’ account credentials to any third parties. Customer agrees to immediately notify SystemsTX in the event of any unauthorized access to or use of Customer’s (or any User’s) account or other breach of security. Customer agrees that Customer is responsible for all activities that occur under Customer’s account, whether the activities were performed by Customer (including its personnel, agents and subcontractors) or performed by an unauthorized third-party. Customer agrees to report to SystemsTX immediately and use reasonable efforts to stop immediately any known or suspected unauthorized copying or distribution of the content from the Services.
When a health insurance verification request is submitted through our Services, all details of the request are required to be available to us so that our Services may function properly to provide you with the information you request.
Customer agrees to collect, store, and use all information, including Third-Party Data (as defined below), provided to it or obtained via the Services or otherwise as a result of this Agreement in a manner that (i) protects the security, privacy, confidentiality, and integrity of all information provided, (ii) ensures against any reasonably anticipated threats or hazards to the security or integrity of the information; and (iii) protects against unauthorized access to or use of the information. “Third-Party Data” means any data, information, or material provided or submitted by any third party to the Services in the course of using and/or providing the Services. These safeguards include, without limitation, a written data security plan, employee training, information access controls, restricted disclosures, systems protections (e.g., intrusion protection, data storage protection, and data transmission protection), and physical security measures. For information disclosed in electronic form, Customer agrees that such safeguards must include electronic barriers (e.g., “firewalls” or similar barriers) and password-protected access. In addition, in the event that Customer sends or receives any data over the Internet or through an ISP, Customer shall secure or encrypt such information in a manner consistent with industry security standards. For information disclosed in written form, Customer agrees that such safeguards shall include secured storage. Customer shall also establish and maintain any additional physical, electronic, and procedural controls and safeguards to protect any data from unwarranted disclosure as may be required for SystemsTX to comply with any law or regulation.
If there is any actual or suspected theft of, accidental disclosure of, loss of, or inability to account for any information by Customer or any unauthorized intrusions into Customer’s systems affecting information in the Services and/or Third-Party Data, Customer must, within 24 hours of the discovery of the actual or suspected event, (i) notify SystemsTX, (ii) estimate the disclosure or intrusion on SystemsTX, and (iii) specify the corrective action to be taken by Customer.
Customer warrants and agrees that Customer will not use information obtained from the Services for any improper or illegal purpose or act, including, but not limited to patient brokering. Customer also agrees not to share the Patient’s Health Insurance Information with any unauthorized user in any manner.
SystemsTX’s Services are intended to assist Customer with obtaining the Health Insurance Information of the Patient who may be treated by Customer’s healthcare practice; however, Customer understands that SystemsTX is not Customer’s agent or representative. Use of the Services does not remove Customer’s sole responsibility and liability for making treatment and/or patient admissions decisions based on the Patient’s Health Insurance Information, obtaining payments from the Patient for any and all healthcare treatments, medications, durable medical equipment, and any other service provided by Customer’s healthcare practice, or any other activities associated with a healthcare practice or product. Customer is responsible for monitoring such activities to ensure accuracy, completeness, and compliance with any applicable rules and regulations. SystemsTX will attempt to obtain the Health Insurance Information accurately; however, Customer agrees that Customer is solely responsible and liable for verifying the accuracy of the Health Insurance Information gathered through use of the Services. Customer acknowledges that the Health Insurance Information obtained through the Services is for informational purposes only and not a guarantee of payment, authorization, or acceptance by the Patient’s health insurance company. Customer agrees to independently verify the Patient’s Health Insurance Information obtained as a result of the Services and acknowledges that failure to independently verify the Health Insurance Information may cause Customer to incur a significant cost, for which Customer agrees SystemsTX is neither responsible nor liable.
Changes in the Patient’s Health Insurance Information may occur. Customer acknowledges and agrees that Customer is solely responsible for communicating with the Patient’s health insurance company, and Customer agrees to indemnify SystemsTX against any claim, demand, and/or liabilities, including costs and expenses, asserted by the Patient or any third-party, resulting from or arising out of such changes to the Patient’s Health Insurance Information. By accessing and using SystemsTX’s Services, Customer agrees to bear all risks associated with the use of SystemsTX’s Services. Customer agrees that SystemsTX is not responsible for the Patient’s health insurance coverage responsibilities or the Patient’s health insurance payment responsibilities.
Both parties will obtain and maintain insurance during the Term of this Agreement, including worker’s compensation and commercial general liability insurance (with applicable riders), in amounts and on terms that are in accordance with acceptable standards in the industry. Each party, upon request by the other party in writing, will furnish the requesting party with proof of such insurance by presenting valid certificates of current coverage.
Customer acknowledges that HIPAA governs the use and transmission of individually identifiable health information, including setting rules for health care providers and health insurance companies about who can look at and receive an individual’s health information. To that end, Customer acknowledges that Customer is responsible for compliance with HIPAA regulations and represents and warrants to SystemsTX that Customer is in compliance. By using the Services, Customer agrees to the terms of the Business Associate Agreement.
Customer understands that each healthcare payer may have terms and conditions, privacy policies, and other rules and restrictions associated with covering the cost of an insured individual’s medical expenses (hereinafter “Health Insurance Coverage Policies”). Customer agrees that it is Customer’s sole responsibility to review and comply with these Health Insurance Coverage Policies. Customer agrees that SystemsTX is not responsible for any violations of the Health Insurance Coverage Policies, and Customer agrees to indemnify SystemsTX against any claim, demand, and/or liabilities, including costs and expenses, asserted by any third-party healthcare payers, resulting from or arising out of such violations of the Health Insurance Coverage Policies as a result of Customer’s use of the Services.
Customer represents and warrants that Customer’s use of the Services does not conflict with any third-party agreements, and Customer agrees to indemnify and hold harmless SystemsTX in the event that Customer’s use of the Services violates or conflicts with such third-party agreements.
Customer will pay the fees for the Term according to the prices and terms listed in the MSA, the user interface, or as otherwise agreed by the parties. SystemsTX reserves the right to increase its fees upon notice to Customer, which increase will take effect 30 days after such notice. All fees are payable in US Dollars and are non-cancelable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on SystemsTX’s net income). In the event SystemsTX pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse SystemsTX.
Customer is responsible for any connection fees incurred by Customer to access and use the Services. For example, Customer’s Internet service provider may charge Customer access or data fees for Customer’s use of their services in connection with data transmission. Contact Customer’s provider for more information regarding their data rates and fees.
- System Requirements, Maintenance, Updates, and Limitations on Service
Use of the Services requires a computing device that is compatible with the Services and may require obtaining updates or upgrades from time to time in order to continue using the Services. Because the use of the Services involves hardware, software, and Internet access, Customer’s ability to use the Services may be affected by the performance of these factors. Customer acknowledges and agrees that such system requirements, which may be changed from time to time, are Customer’s responsibility. Customer acknowledges and agrees that SystemsTX is not responsible for supplying Customers with the hardware necessary to use the Services.
SystemsTX’s Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. SystemsTX is not responsible for any delays, delivery failures, or other damage resulting from such problems.
SystemsTX reserves the right, in its sole discretion, to change, improve, correct, modify, suspend, discontinue or permanently cancel the operation of the Services or portions thereof at any time without any notice to Customer, and without incurring any obligations or liabilities to Customer or to any third-party. Customer’s use of these Services after any changes are posted will be considered acceptance of such changes. The Services may not be available during maintenance breaks and other times. SystemsTX reserves the right to modify or discontinue, temporarily or permanently, any aspect of the Services for any reason and without notice. Customer agrees that SystemsTX is not responsible for any costs, loss of revenue, or loss of business of any kind as a result of maintenance of the Services, or as a result of the Services being inaccessible for any other reason.
The version of the Services’ software may be upgraded from time to time to add support for new functions and services, improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions (hereinafter “Enhancement(s)”). Customer agrees to receive such Enhancements (and permit SystemsTX to deliver them to Customer) as part of Customer’s use of the Services, and refusal to accept any Enhancement is grounds for termination of the Agreement and the Services. In the event that there is or will be an incremental cost increase in a material amount to the Services associated with the Enhancement, the amount of said incremental cost increase shall be mutually agreed by SystemsTX and Customer. SystemsTX does not guarantee that SystemsTX will continue to support any version of SystemsTX’s Services for which Customer initially received a right to use.
It is Customer’s obligation to work with SystemsTX (or designate an approved contact) which SystemsTX and its support vendors can work with to resolve any issues of which Customer provides SystemsTX sufficient notice. The determination of whether the notice is sufficient will be made solely by SystemsTX, and such determination shall not be unreasonably withheld. Customer will provide power and high-speed Internet access for any equipment utilizing any of the Services or products associated with the Services. SystemsTX is not responsible for issues involving an Internet Service Provider and Customer or any other third parties which make changes to Customer’s network via direct (change) or indirect (outage) action.
- Limited Right to Use
Subject to Customer’s continued compliance with these Terms of Service, SystemsTX grants Customer a non-exclusive, non-transferable, limited right to access, view, and use the Services and Materials for Customer’s healthcare practice only. All rights, title, and interest in the Services and Materials not expressly granted to Customer in these Terms of Service are reserved by SystemsTX. Customer agrees not to dispute SystemsTX’s claims of ownership or validity of its rights to the Services and all materials and content on the Services.
SystemsTX may suspend or terminate any and all of Customer’s rights and authorization at any time for any reason. If Customer violates any of the Terms of Service, Customer’s rights under this Section will terminate at the sole discretion of SystemsTX and SystemsTX may terminate Customer’s access to the Services and Materials without notice and without any refund of fees.
- Use Restrictions
The Services and all materials and information contained on the Services (including past, present, and future versions) and all content that is included in, on or that are otherwise a part of the Services (collectively, “Materials”) are owned, controlled or licensed by SystemsTX.
Any right or authorization granted to Customer for the use of the Services by SystemsTX is subject to the following obligations and restrictions:
- Customer must retain, on all copies of the Materials downloaded, all copyright and other proprietary notices contained in the Materials and the Services;
- Customer may not copy, reprint, modify, distribute, translate, port, publish, sublicense, assign, transfer, sell, lease, license, or otherwise commercially exploit, distribute, or make available the Materials or the Services in any way or reproduce or publicly display, perform, or otherwise use them for any public purpose or any other purpose than Customer’s healthcare practice;
- Customer may not commercially exploit the Services, Materials or underlying data, including without limitation, (i) creating derivative works of the Materials and the Services, (ii) using any data mining, robots, or similar data gathering and extraction tools on the Materials or the Services, (iii) creating a database, systematically downloading, storing any or all of the Materials from the Services or the Services itself, (iv) linking, framing, or mirroring any portion of the Materials or Services on any other server or wireless or Internet-based device, (v) extracting, deriving or attempting to extract or derive any source code, any executable code, or structure of all or any portion of the Materials or the Services by reverse engineering, disassembly, decompilation or any other means, or (vi) using other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Materials or the Services provided by SystemsTX;
- Customer may not transfer the Materials or Services to any other person without the express written consent of SystemsTX;
- Customer may not use the Services or Materials in a manner that is unlawful, threatening, infringing, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or otherwise unlawful, or submit tortious, explicit, graphic or obscene, nor may Customer’s use victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- Customer may not send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs;
- Customer may not attempt to gain unauthorized access to the Services or its related systems or networks;
- Customer may not register for or use the Services or Materials in a manner that impersonates any other person, business or entity, including SystemsTX, and its employees and agents;
- Customer may not interfere, try to interfere, disrupt, or try to disrupt the SystemsTX servers or networks, or disobey any network access or security requirements, policies, directives, procedures, or regulations of SystemsTX or its representatives and agents who facilitate Customer’s use of the Services;
- Customer may not use the Services or Materials as a means to engage in conduct that reflects poorly upon, disparages or devalues SystemsTX’s reputation or goodwill, as determined in SystemsTX’s sole discretion;
- Customer may not establish a link or otherwise hold Customer out as an exclusive user of the Services or suggest an affiliation with, approval of, or endorsement by SystemsTX when none exists.
- Customer shall not use SystemsTX’s Services for patient brokering;
- Customer shall not use SystemsTX’s Services to obtain and share Protected Health Information, including Electronic Protected Health Information (hereinafter referred to collectively as “PHI”), which includes individually identifiable health information, with an unauthorized user;
- Customer shall not rely on the Services when making healthcare treatment decisions;
- Customer shall refrain from any public or private comments that Customer will share SystemsTX’s technology or processes with others;
- Customer shall not use the Services if Customer is located in a country embargoed by the United States or if Customer is on the U.S. Treasury Department’s list of Specially Designated Nationals;
- In connection with Customer’s use of the Services, Customer will not engage in any activity that may create a risk of injury, death, property damage, and/or liability of any kind;
- When accessing and/or using the Services, Customer shall not inflict emotional distress on any person, humiliate any other person, assault or threaten any other person;
- Customer shall not sublicense, rent, lease, sell, trade, gift, bequeath, or otherwise transfer Customer’s account to anyone without SystemsTX’s written permission;
- Customer shall not access or use an account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original account creator without SystemsTX’s express written permission; or
- Customer shall not build a competitive product or service, build a product or service using similar ideas, feature, functions, or graphics of the Services, or copy any ideas, features, functions, and/or graphics of the Service.
In the event of an actual or threatened breach of the above use restrictions, SystemsTX shall have the right to immediately suspend and terminate Customer’s access to the Services.
- Third-Party Information
SystemsTX does not endorse or assume any responsibility for any such Third-Party Data and/or Third Party Website, information, materials, products, or services. If Customer uses any Third Party Data or a Third Party Service, Customer does so at Customer’s own risk. Customer expressly relieves SystemsTX from any and all liability arising from Customer’s use of any Third-Party Data and/or Third Party Website. Customer agrees that SystemsTX shall not be responsible for any loss or damage of any sort relating to the Third-Party Data and/or a Third Party Website. Customer represents that Customer’s use of any Third Party Data is in accordance with all applicable law, rules, and regulations and that Customer has obtained any necessary authorizations or permissions to obtain information about an individual and or institution.
- Customer Content
SystemsTX does not own any data, information, or material that Customer submits to the Services in the course of using the Services (“Customer Data”). Customer, not SystemsTX, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all of the Customer Data. SystemsTX shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. In the event this Agreement is terminated for any reason by SystemsTX, SystemsTX reserves the right to withhold, remove, and/or discard any Customer Data without notice for any breach by Customer, including, without limitation for non-payment of fees. Upon termination of this Agreement, Customer’s right to access or use Customer Data immediately ceases, and SystemsTX shall have no obligation to maintain or forward any Customer Data. The provisions of this Section are subject to any requirements of applicable law.
- Term and Termination
The initial term (the “Initial Term”) of Customer’s right to the SystemsTX Services shall be as set forth in the MSA. Thereafter, this Agreement shall renew for additional period(s) (each, a “Renewal Term”) equal to the Initial Term agreed to in the MSA. The Initial Term and all Renewal Terms shall be, collectively, the “Term.”
Either party may terminate the Agreement at any time for any reason or no reason upon written notice to the other party.
Customer agrees that SystemsTX, in its sole discretion, has the right (but not the obligation) to deactivate Customer’s account, or otherwise terminate Customer’s access to or use of the Services, immediately and without notice, for any reason, including, without limitation, if SystemsTX believes that Customer has acted inconsistently with the letter or spirit of these Terms of Service. Further, Customer agrees that SystemsTX shall not be liable to Customer or any third-party for any termination of Customer’s access to the Services. Further, Customer agrees not to attempt to use the Services after said termination, unless otherwise permitted by SystemsTX in writing.
Provisions in this Agreement that by their express terms or which by their nature should survive termination or expiration of this Agreement shall survive, including Sections 5 (“Use Restrictions”), 9 (“Customer Content”), 10 (“Termination”), 12 (“Intellectual Property and Other Proprietary Rights”), 13 (“Confidentiality”), 15 (“Disclaimers; Limitation of Liability”), 16 (“Third-Party Disputes”), 18 (“Indemnification”), 19 (“Arbitration”) and 20 (“Miscellaneous”).
- Assignment and Delegation
This Agreement may not be assigned by Customer in whole or in part without the prior express written consent of SystemsTX. SystemsTX may delegate its duties and obligations under this Agreement to others. SystemsTX may assign this Agreement at any time and without any notice to Customer.
Notwithstanding the foregoing, any actual or proposed change in control of Customer that results or would result in a direct competitor of SystemsTX directly or indirectly owning or controlling 50% or more of Customer shall entitle SystemsTX to terminate this Agreement for cause immediately upon written notice.
- Intellectual Property and Other Proprietary Rights
SystemsTX alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights (as defined below), including, but not limited to, trademarks, inventions, discoveries, writings, trade secrets, know-how, methods, practices, procedures, engineering information, designs, devices, improvements, manufacturing information, and other technology, whether or not patentable or copyrightable, and any patent applications, patents, or copyrights based thereon in and to the Services, the contents of the Services and Materials, including the selection, coordination, and arrangement of the Services and Materials, and any suggestions, ideas, inventions, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services (“Feedback”). Customer hereby grants, assigns, transfers, and conveys, to SystemsTX all right, title, and interest in and to all Feedback. ”Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or the Intellectual Property Rights owned by SystemsTX. The SystemsTX name, the SystemsTX logo, and the product names associated with the Services, are trademarks of SystemsTX, and no right or license is granted to use them.
To the extent that any software (defined in its broadest sense) is developed or changed by Customer or its agents, assigns, or representatives in violation of any of the covenants herein, Customer hereby grants, assigns, transfers, and conveys, to SystemsTX all right, title, and interest that said the party has, or will have, to said modified software. Customer agrees to assist SystemsTX, at SystemsTX’s expense, to perfect SystemsTX’s ownership right, title, and interest in the inventions (whether patentable or not), copyrights, or other developments, including executing any documents and answering questions.
The Services are copyrighted, or subject to copyright protection, by SystemsTX and is not to be copied or otherwise distributed without the written permission of SystemsTX. Customer agrees to use the Services only for the purposes and subject to the terms and conditions in this Agreement. Customer shall not permit any third party, i.e., non-employee of Customer, to gain access to the Services, without the written permission of SystemsTX.
SystemsTX’s trademarks, trade names, service marks, logos and trade dress of Systems TX (collectively, “Marks”) may not be used in connection with any product or service that is not SystemsTX’s, in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits SystemsTX. Customer is not permitted to and shall not register or use any Mark, domain name or any other name or sign that relates to or incorporates any of SystemsTX’s intellectual property (in whole or part) or the subject matter of SystemsTX’s intellectual property or that is confusingly similar thereto.
The Marks displayed on the Services, including without limitation, SystemsTX, VerifyTX and VerifyTreatment, are the intellectual property of SystemsTX. The unauthorized use of any Mark displayed on these Services is strictly prohibited. All third-party names and logos on the Services are trademarks or registered trademarks of their respective owners, where applicable. Reference to any third party-owned trademarks is for informational purposes only and is not intended to indicate or imply any affiliation, association, sponsorship or endorsement by any owners of such third party-owned trademarks.
“Confidential Information” means information including, without limitation, all computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third party software or information, if any, that may be provided to Customer under this Agreement, including any data, related source or object codes, technical data, the data output of such software, documentation, or correspondence owned by the applicable licensor and/or third-party provider. Confidential Information shall not include any information that: (i) is or becomes generally publicly known through no wrongful act on Customer’s part; (ii) is already known to Customer without a third party’s disclosure restriction at the time of disclosure by SystemsTX hereunder, and as evidenced by a written document(s) predating SystemsTX’s disclosure to Customer; (iii) is rightfully received by Customer from a third party without breach of the Agreements; (iv) is furnished to a third party by SystemsTX without a duty of confidentiality; (v) can be proven to have been independently developed by Customer without access to any confidential information by Customer prior to the commencement of the relationship contemplated hereunder, and as evidenced by a written document(s) predating SystemsTX’s disclosure to Customer; or (vi) is explicitly approved for release by written authorization of SystemsTX. In the event of applicability of or reliance by Customer on subsection (ii), (iii) and/or (v) above, Customer must notify SystemsTX within ten (10) days of disclosure by SystemsTX or ten (10) days from the execution of this Agreement, whichever is later, or else Customer will be said to have waived its right and ability to rely on any one or more of these three subsections. Customer may disclose the information and data hereof to third parties if this is required for Customer to fulfill its duties under the Agreements and such third parties have agreed to conditions at least as stringent as those contained herein.
Unless otherwise indicated in writing by SystemsTX, Customer will use the highest degree of care to prevent disclosing to others the information and data furnished by SystemsTX under this Agreement. In addition to Customer’s obligation to safeguard Confidential Information in accordance with this section, Customer acknowledges that PHI requires special safeguarding and agrees to abide by all applicable laws, including HIPAA, regarding the protection and disclosure of PHI. This obligation shall continue so long as the Agreement is in effect and for a period until the information no longer remains confidential.
If Customer becomes compelled in any proceeding or is requested by a governmental body having regulatory to make any disclosure that is otherwise prohibited hereunder, Customer shall provide SystemsTX with prompt notice of such compulsion or request so that it may seek an appropriate protective order or other remedy or waive compliance with this section. In the absence of a protective order or other remedy, Customer may disclose such information immediately prior to the required date for production or disclosure of the information.
Customer agrees not to disclose the terms of this Agreement, including but not limited to pricing, to any third party, without the prior written express consent of SystemsTX, except to advisors, investors, and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
In the event of an actual or threatened breach of the above confidentiality provisions, SystemsTX shall have the right to immediately suspend and terminate Customer’s access to the Services.
SystemsTX may give notice by means of a general notice on the Services, electronic mail to Customer’s e-mail address on record in SystemsTX’s account information, or by written communication sent by first-class mail or pre-paid post to Customer’s address on record in SystemsTX’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
Any notice, consent, approval, request or other communication required to be given under this Agreement to SystemsTX shall be in writing and shall be deemed effective one (1) day upon receipt if delivered by hand to an authorized individual to accept correspondences on behalf of SystemsTX or two (2) days when sent by certified or registered mail, return receipt requested.
In general, communications to SystemsTX may be made to:
601 N. Congress Ave., Suite 415,
Delray Beach, FL 33445
- Disclaimers; Limitation of Liability
CUSTOMER AGREES THAT CUSTOMER’S USE OF THESE SERVICES SHALL BE AT CUSTOMER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SYSTEMSTX, AND ITS SUPPLIERS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SHAREHOLDERS, AND REPRESENTATIVES (COLLECTIVELY, THE “SYSTEMSTX PARTIES”) OFFER THE SERVICES “AS IS” AND “AS AVAILABLE” AND DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND CUSTOMER’S USE THEREOF, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, SYSTEMSTX, AND THEIR AGENTS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT AND THE PROCESSES PROVIDED BY THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR THE PROCESSES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SYSTEMSTX’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION, INSURANCE INFORMATION, AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM SYSTEMSTX’S SERVERS, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH SYSTEMSTX’S SERVICES BY ANY THIRD-PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR PROCESSES OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES AND ANY PROCESSES PROVIDED BY THE SERVICES. SYSTEMSTX DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SYSTEMSTX WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, CUSTOMER SHOULD USE CUSTOMER’S BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
NEITHER SYSTEMSTX NOR ANY SYSTEMSTX PARTY IS PROVIDING ANY LEGAL, TAX, MEDICAL, COUNSELING, ACCOUNTING, INVESTMENT, FINANCIAL OR ANY OTHER PROFESSIONAL SERVICES OR ADVICE.
IN NO EVENT SHALL THE SYSTEMSTX PARTIES, OR ANY SUB-CONTRACTOR, SALESPERSON, OR AUTHORIZED SERVICE PROVIDER HIRED BY SYSTEMSTX IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY (WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO SYSTEMSTX), FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, SAVINGS, REVENUES, LEGAL COSTS AND/OR EXPENSES, OTHER ECONOMIC LOSS, LOSS OF (OR COST OF SUBSTITUTE) EQUIPMENT OR MATERIALS OF ANY KIND WHATSOEVER, WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, IN ANY MANNER IN CONNECTION WITH: (i) THE USE OF OR ANY PROCESSES RELATED TO THE SERVICES; (ii) FOR ANY PURCHASE, USE OR LICENSE OF ANY COMPUTER SOFTWARE; (iii) FOR ANY DATA FURNISHED UNDER OR AS A RESULT OF THIS AGREEMENT; (vi) THE DURATION IN WHICH HEALTH INSURANCE INFORMATION IS EFFECTIVE; (v) ANY INACCURACIES IN THE HEALTH INSURANCE INFORMATION; (vi) ANY OF CUSTOMER’S TREATMENT DECISIONS; OR (vi) ANY OTHER ACTIVITIES ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE SERVICES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply fully to Customer. Nevertheless, the intention of the parties is to minimize to the fullest extent possible the implied warranties and liability for remote or uncertain damages to be claimed from SystemsTX.
- Third-Party Disputes
Customer is solely responsible for any activities related to Customer’s independent verification of health insurance information, whether or not performed through the Services. SystemsTX reserves the right, but has no obligation, to become involved in any way with third party disputes, including, but not limited to, disputes between individuals and health insurance companies, individuals and health care practices, and health insurance companies and health care practices. If Customer has a dispute with one or more third parties, Customer releases the SystemsTX Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such third party disputes, including, without limitation, any intellectual property dispute or any dispute over health insurance information.
- Force Majeure
SystemsTX shall not be liable for any delay or failure to provide the Services resulting from causes outside the reasonable control of SystemsTX, including without limitation acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
By using these Services Customer agrees that Customer will defend, indemnify, and hold harmless the SystemsTX Parties from and against all liabilities, liens, actions, claims, costs, taxes, damages and expenses (including reasonable attorneys’ fees and costs) if any third party brings a claim against SystemsTX in connection with, or arising out of (i) Customer’s breach of this Agreement; (ii) Customer’s violation of any law, rule or regulation of the United States, including HIPAA, or any other country; (iii) Customer’s infringement or violation of the rights of any third parties (including intellectual property rights); (iv) Customer’s use of the Services; or (v) any other party’s access and use of the Services with Customer’s account credentials or other appropriate security feature. SystemsTX reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, and, in such case, Customer shall agree to cooperate with SystemsTX’s defense of such claim. Customer shall not settle any claim without the prior consent of SystemsTX.
SystemsTX looks forward to a long and mutually productive relationship with Customer. However, if Customer becomes dissatisfied for any reason with the fees charged or the Services, SystemsTX encourages Customer to bring that to SystemsTX’s attention immediately. It is SystemsTX’s belief that most such problems can be resolved by good faith discussions between the parties. Nevertheless, it is always possible that some disputes may arise which cannot be resolved by discussions between us. SystemsTX believes that such disputes can be resolved more expeditiously and with less expense to all concerned by binding arbitration than by court proceedings.
Any dispute between Customer and SystemsTX (including, without limitation, any individual currently employed or formerly employed by SystemsTX) shall be subject to binding arbitration. In addition, all questions regarding the arbitrability of the dispute, including whether Customer and/or SystemsTX has agreed to arbitrate the dispute, shall be decided by such arbitration. This agreement to arbitrate all disputes between us applies even if some person or entity claims that this Agreement is void, voidable, or unenforceable for any reason. By agreeing to arbitrate, all parties are waiving a jury trial.
The arbitration shall be held in Palm Beach County, Florida, before a mutually acceptable arbitrator, pursuant to the then-existing Commercial Arbitration Rules of the American Arbitration Association, including Optional Rules for Emergency Measures of Protection. The arbitrator shall be a practicing attorney or retired judge with at least fifteen years of total working experience as such. Customer consents to personal jurisdiction in Florida and venue in Palm Beach County in any action and agrees to waive the right to proceed in any other jurisdiction or forum concerning a dispute between the parties or relating to this Agreement. This agreement to arbitrate shall survive the termination of the Services or this Agreement.
No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitations. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages.
A party may apply to the arbitrator seeking injunctive relief until an arbitration award is rendered or the dispute is otherwise resolved. A party also may, without waiving any other remedy, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party pending the arbitrator’s appointment or decision on the merits of the dispute. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees, and legal costs.
The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors, and senior management and to family members of a party who is an individual.
The arbitrator shall require exchange by the parties of (i) the name and, if known, address and telephone number of each person likely to have knowledge of relevant information, identifying the subjects of the information, and (ii) non-privileged documents, including those in electronic form, that are relevant to the issues raised by any claim, defense or counterclaim or on which the producing party may rely in support of or in opposition to any claim, defense or counterclaim. The arbitrator shall limit such production based on considerations of unreasonable expense, duplication, and undue burden.
These exchanges shall occur no later than a specified date within 60 days following the appointment of the arbitrator. At the request of a party, the arbitrator may at his or her discretion order the deposition of witnesses. Depositions shall be limited to a maximum of three depositions per party, each of a maximum of four hours duration unless the arbitrator otherwise determines. The arbitrator may allow such other discovery as he or she determines is reasonably necessary for a fair determination of the dispute. Any dispute or objections regarding discovery or the relevance of evidence shall be determined by the arbitrator. All discovery shall be completed within 120 days following the appointment of the arbitrator unless the arbitrator otherwise determines.
Any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a dispute as a representative of another individual or group of individuals. Further, a dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
To the extent that any lawsuit or court proceeding is permitted under this Agreement, to the fullest extent permitted by law you agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in Palm Beach County, Florida for the purpose of litigating all such disputes.
Any claim under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. Customer agrees to the admissibility of computer records and electronic evidence in any dispute herein.
In the event the provisions in this arbitration section are held invalid or unenforceable, then this section, in its entirety, will cease to apply, and the parties will not be obligated to arbitrate any disputes.
These Terms of Service are governed by, and construed in accordance with, the laws of the State of Florida, regardless of principles of conflict/choice of laws that may require the application of the laws of another jurisdiction.
Customer’s violation of these Terms of Service, including without limitation a violation of the Use Restrictions in Section 7 and Confidentiality in Section 13, could cause irreparable harm to SystemsTX for which monetary damages may be difficult to ascertain or may be an inadequate remedy. Therefore, Customer agrees that SystemsTX will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages. The prevailing party shall be entitled to reasonable legal fees and costs, including attorneys’ fees.
SystemsTX and its Third Party Providers make no representation that the Services are appropriate or available for use in locations outside of the United States or that certain aspects of the Services are legally usable within all parts of the United States.
No delay or omission to exercise any right, power or remedy accruing to SystemsTX upon any breach or default by Customer under the Agreements shall impair any such right, power or remedy of SystemsTX, nor shall any such delay or omission be construed as a waiver of any breach or default, or of any similar breach or default occurring, nor shall any waiver of a single breach or default be deemed a waiver of any subsequent breach or default, nor shall any single or partial exercise of any right preclude the exercise of any other right or any other remedy at law or in equity. Except as expressly and specifically, set forth in these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by SystemsTX shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by Customer and a duly appointed officer of SystemsTX.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
The terms and conditions in this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns (subject to any other provision in the Agreement).
It is expressly acknowledged by the parties that SystemsTX is an “independent contractor” with respect to Customer and nothing in this Agreement is intended or shall be construed to create any employer/employee relationship, partnership, or joint venture between the parties. No employee or agent of either party may be deemed an employee or agent of the other party by reason of this Agreement. SystemsTX shall be fully responsible for all tax liabilities arising from its status as an independent contractor. Each party shall notify the other and permit the other to participate in the resolution of any inquiry or audit relating to SystemsTX’s status as an independent contractor.
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