This Software Subscription Agreement (“Agreement”) is effective as of the date of the last signature by the Parties to this Agreement (the “Effective Date”), between 314e Corporation (“314e”), and the Customer (“Customer”). 314e and Customer may be referred to throughout this Agreement in the singular as “Party” and collectively as “Parties.” 314e has developed a software platform. Each discrete feature of the software platform is a “Product”, and the software platform, Products, and any professional services provided to Customer are the “Services”. “Professional Services” means any implementation or integration services provided by 314e related to implementation of the Products.
1. Fees; Expenses; Payment
1.1. Invoice. The scope of the Services and associated fees will be notated in a separate auto-generated document called invoice.
1.2. Fees. The Customer will pay to 314e the fees notated in the invoice, which are non-refundable.
1.3. Authorized Users. “Authorized User” means an end-user that Customer designates to access the Services.
Customer may not allow or otherwise enable Authorized Users to share seats. Customer may not provide access to the Services to a third-party without 314e’s prior written consent.
1.4. Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less. 314e may suspend access to Services if any overdue fees are unpaid past ten business (10) days after receiving written notice.
1.5. Taxes. Customer is responsible for any sales, use, goods, and services, value-added, withholding, or similar taxes or levies that apply to the Services, whether domestic or foreign.
2. Intellectual Property and Licenses
2.1. License to Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, 314e hereby grants Customer and its Authorized Users a non-exclusive, non-sublicensable, non-transferable license to access and use the Services during the term of the Agreement.
2.2. Intellectual Property. 314e, or its licensors, retain all right, title, and interest to the Services and all Intellectual Property Rights relating thereto, including any enhancements or modifications. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
2.3. Feedback. To the extent Customer provides any suggestions, recommendations, or other feedback to 314e with respect to the Services, Customer hereby grants to 314e a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, transferable license to use, copy, modify, create derivative works based upon, and otherwise use any such feedback and the Intellectual Property Rights therein.
2.4. Restrictions. Except as expressly set forth herein (including without limitation, as required for Customer to perform its obligations and/or exercise its rights hereunder), Customer will not, and will not enable any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, or underlying structure, interface, ideas or algorithms of the Services, including pictures of its user interface (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or software; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; except as expressly permitted by the functionalities of the Services, run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise contrary to applicable law (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of 314e, or (3) knowingly contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other malicious computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs). 314e may, at its option, terminate this Agreement for cause or suspend Customer’s access to the Services in the event the foregoing representation and warranty is breached.
3. Confidentiality
3.1. Definition. The Parties may have access to each other’s confidential information. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided no later than thirty (30) days after disclosure, any information of any nature described in this Agreement as confidential, or otherwise disclosed in a manner that a reasonable person would understand is confidential. 314e Confidential Information includes, without limitation, the Services, any software (whether in source or executable code), documentation, nonpublic financial information, pricing, business plans, techniques, methods or processes. The terms and conditions of this Agreement will be deemed the Confidential Information of both Parties and neither Party will disclose Confidential Information to any third parties except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties will, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.
3.2. Exclusions. Confidential Information will not include information that: (a) is or becomes publicly known through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party, which independent development can be shown by written evidence.
3.3. Use and Nondisclosure. During the Term and for a period of three (3) years after expiration or termination of this Agreement, or as long as Confidential Information is considered a trade secret under applicable law, neither Party will make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Notwithstanding anything to the contrary, 314e may collect data regarding Customer’s or Authorized Users’ use of the Services and use such data for any legal business purpose, including, but not limited to, enhancing the Services, and retain such data after any termination of the Agreement. Each Party will take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
4. Term and Termination
4.1. Term. The term of the Agreement commences upon the Effective Date and continues until the later of (i) expiration of all outstanding invoices, or (ii) termination of the Agreement as stated in this section. For clarity, 314e Corporation may change the fees associated with the Services for any newly issued invoice, or renewal of a subscription, or this Agreement.
4.2. Termination. Either Party may terminate this Agreement upon written notice; provided that the cure period for any default with respect to payment of 314e’s invoices will be ten (10) business days.
4.3. Termination for Insolvency. If either Party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then such Party may immediately terminate this Agreement upon written notice.
4.4. Rights and Obligations upon Expiration or Termination.
4.4.1. In the event this Agreement is terminated by Customer without cause, then Customer shall remain liable for, and pay, all remaining fees that are due and would have been due under the then-current term.
4.4.2. Upon expiration or termination of the Agreement, as applicable, Customer’s and Authorized Users’ right to access and use the Services will immediately terminate.
4.4.3. Each Party will return and make no further use of any Confidential Information, materials, or other items belonging to the other Party, except that each Party shall have the right to retain one copy of Confidential Information for regulatory compliance or legal purposes, and neither Party shall be obligated to purge extra copies of Confidential Information from electronic media used solely for disaster recovery backup purposes. For purposes of clarity, 314e may retain any data collected per Section 3.3 after termination of this Agreement.
4.5. Survival. The rights and obligations of 314e and Customer contained in Sections 1.6 Taxes, 2.2 Intellectual Property, 2.3 Feedback, 2.4 Restrictions, 3 Confidentiality, 4.4 Rights and Obligations upon Expiration or Termination, 4.6 Survival, 6 Disclaimers; Limitation of Liability, and 7 General will survive any expiration or termination of this Agreement.
5. Applicable Law, Cooperation
5.1. Applicable Law; Provision of Data. Customer represents and warrants that it will use the Services only as allowed by applicable laws and regulations, and that it has the right to provide any and all data, including PHI and PII in accordance with this Agreement.
5.2. Cooperation. Customer will cooperate in good faith with 314e in following any reasonable instructions presented by 314e on using the Services, and providing access to information (including software interfaces and security access), materials, or facilities as may be reasonably required by 314e in order to provide the Services. In particular, Customer acknowledges and agrees that access to its IT system is a necessary condition for the functioning of the Services, and 314e disclaims all representations and warranties in regards to the functioning of the Services vis-à-vis Third Party Operations. In the event of any delay in Customer’s performance of any of the obligations set forth in this Agreement, 314e may, without penalty, adjust the go-live dates for the applicable Services set forth herein as reasonably necessary to account for such delays.
5.3. Authorized Users. As applicable, Customer represents and warrants that it will ensure that all Authorized Users comply with the terms and conditions of this Agreement and any other applicable end-user license agreements. Customer assumes sole responsibility and liability for the acts and omissions of its Authorized Users.
5.4. Third Party Operations. Customer acknowledges and agrees that the Services may require software (like an EHR) or services operated or provided by third parties engaged by Customer (“Third Party Operations”). 314e is not responsible for the operation of any Third Party Operations and their impact upon the Services. Customer is solely responsible for procuring any and all rights necessary for it and 314e to access Third Party Operations, and to the extent that 314e must pay costs to access Third Party Operations, then 314e may pass through such costs to Customer.
6. Disclaimers; Limitation of Liability
6.1. 314E MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. 314E DISCLAIMS ANY WARRANTY THAT THE SERVICES, OR THE THIRD PARTY SERVICES WHICH THE SERVICES RELY ON, WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT ALL ERRORS WILL BE CORRECTED. 314E FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
6.2. IN NO EVENT WILL 314E BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL 314E’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED FEES PAID BY CUSTOMER IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
7. General
7.1. Governing Law. This Agreement is to be governed by and construed in all respects in accordance with the laws of the State of Delaware. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration administered, heard by a single arbitrator, by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except as required by law, neither Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The place of arbitration shall be in Bucks County, Pennsylvania. The arbitrator shall award to the prevailing party, if any, all of their costs and fees, including but not limited to attorneys’, arbitrators’, and administrative fees.
7.2. Waiver, Non-Exclusive Remedies, Severability. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. The exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
7.3. Publicity. 314e may include Customer’s name and logo on 314e’s website and publicity and marketing materials, in each case solely to identify Customer as one of 314e’s customers and only in accordance with Customer’s standard logo and/or trademark usage guideline.
7.4. Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
7.5. Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have the power to bind the other nor to incur obligations on the other’s behalf without such other Party’s prior written consent.
7.6. Assignment/Successors. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s written consent, except in the event of a Change of Control (as defined below) of 314e. Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a Party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such Party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (b) the merger of such Party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
7.7. Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive.
7.8. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it.
7.9. Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
7.10. Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument.
7.11. Non-Solicitation. Customer shall not, directly or indirectly, hire, solicit, recruit, induce, or work with any employee or agent of 314e or any affiliated or related entity at any time during the term of this Agreement, and for a 12 month period thereafter. Should Customer violate this provision, then Customer shall pay to 314e liquidated damages an amount equal to the greater of (i) $50,000.00, or (2) 100% of the employee’s annual earnings immediately prior to leaving the other party’s service, and, in either case, all costs associated with the collection of such liquidated damages, including, but not limited to, reasonable attorneys’ fees. A general advertisement or a request for employment that is initiated exclusively by an employee of the other party shall not be considered a solicitation pursuant to this section, and a party shall not be prohibited from hiring persons responding to a general advertisement or request for employment. The parties acknowledge that such damages are difficult to ascertain, and the amounts herein are meant to approximate the damages suffered by Company, and not act as a penalty.
7.12. Entire Agreement. This Agreement, together with any exhibits, Order Forms, or other associated agreements, such as a business associate agreement, constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. In the event of a conflict between the terms of the Agreement or Order Form, the Order Form will prevail for any reference to Fees and the term of the Agreement; the Agreement governs, and prevails for all other sections of the Order Form, as well as associated agreements. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.
Customer’s Use of the Services
1. Definitions
1.1. “Transaction(s)” means an exchange of electronic healthcare data by and between 314e and Customer in standard HIPAA required formats. Transaction include Batch Transactions, Real-Time Transactions, and such other transactions that may not be processed but that return valid data or meaningful messages (e.g., “Name not found” when performing an eligibility inquiry by name or “invalid provider id” when performing a claim submission).
1.2. “Batch Transactions” means transactions sent in batch files that may contain (including but not limited to) one (1) or more transactions of the same type (837, 270, 276, 278, 275). When these requests have been processed, the corresponding responses (835, 271, 277, 278, 275) will be transmitted back.
1.3. “Real-Time Transactions” means single transactions that typically have a response time of less than ten (10) seconds.
1.4. “Additional Submissions” means additional types of submissions of data to payers that are not listed or described in this Agreement that 314e may, from time to time, make available to Customer.
2. Use of the Services
2.1. Customer will not use fraudulent or incorrect information to exchange Transactions.
2.2. Customer will access and use the Services only for its legitimate business purposes and in accordance with the terms of this Agreement. Any access or use of the Services by Customer for other purposes is strictly prohibited.
2.3. Customer will not violate any laws or regulations, or violate any rights of third parties, or expose 314e to legal liability in Customer’s use of the Services;
2.4. Upon receipt of notice from 314e, Customer will promptly delete any data or information erroneously routed, provided, delivered, or made available to Customer by 314e.
2.5. Customer will make reasonable attempts to determine the cause of any and all Transaction discrepancies of which 314e notifies Customer, including, without limitation, any notification of discrepancies by electronic notice of Transaction rejection, or written, electronic, or oral communications. Customer will respond to 314e concerning such discrepancies within a reasonable time;
2.6. Customer will furnish all data necessary for 314e to conduct Transactions as required by this Agreement and the HIPAA Transactions Rule (45 Code of Federal Regulations Parts 160, 162).
2.7. Customer will not allow anyone other than Customer and its Authorized Users to submit Transactions, patient cost estimator, or Additional Submissions to 314e, provided that Customer will be fully responsible for all acts and omissions of its Authorized Users.
2.8. With respect to Medicaid eligibility Transactions, Customer agrees that: (1) access to eligibility information will be restricted to the sole purpose of verification of Medicaid eligibility where the recipient has requested Medicaid payment for medical services; (2) verification of eligibility under the system is not a guarantee of payment and the records as to the recipient’s eligibility status will be final authority; and (3) it will abide by the applicable federal and state laws and regulations regarding confidentiality of information.
2.9. Customer will not submit Transactions in a manner that 314e, in its sole and absolute discretion, deems to be excessive or abusive.
2.10. The Parties agree to work in good faith to remediate any such issues. To the extent an issue of abusive or excessive use is not resolved within thirty (30) days of Customer’s receipt of notice, 314e may: (1) utilize technical measures to prevent such usage; (2) suspend or terminate Customer’s access to and use of the Services; and/or (3) charge Customer $0.32 per Transaction deemed excessive or abusive.
2.11. Customer will not submit Eligibility and Benefits Transactions or otherwise use or access the Services for the purpose of insurance discovery practices.
2.12. Customer will not submit to 314e any data that is subject to the European Union Data Protection Regulation 2016/679 (“GDPR”).
2.13. Customer will not attempt to gain unauthorized access to the Services or the related systems or networks, or otherwise violate, tamper with or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, including but not limited to accessing any APIs in any manner not contemplated or permitted under this Agreement, or to enable others to do so.
