Please read these Terms of Service carefully (“Terms of Service” or “Terms”). This Terms of Service is legally binding agreement made between you, whether personally or on behalf of an entity (“user” or “you” or “Client”) and HRC Technology Solutions Holdings Pte Ltd and its affiliated companies (collectively, “Company” or “we” or “us” or “our”), concerning your access to and use of the https://lumashift.com website as well as any other media form, media channel, mobile website or mobile application related or connected thereto (collectively, the “Website” or “LumaShift”). By accessing or using our Website and/or Service, you agree to be bound to all of the terms and conditions described in these Terms. If you do not agree to these Terms of Service, do not subscribe to, access or use our Website or Service.
1.2. “Applicable Law” means any international or United States federal, state, or local common law, statute, ordinance, rule, regulation, or other requirement enforceable in a court of law or administrative tribunal and any published interpretive guidance, guidelines, or opinion issued by a governmental authority with responsibility for enforcing the requirement, which is applicable to Client, Client’s health care professionals or LumaShift. Without limiting the foregoing, Applicable Law includes: statutes, regulations, and other laws governing Medicare and other Federal Health Care Programs; HIPAA, the HITECH Act and regulations implemented thereunder; the anti-kickback provisions of the Social Security Act and related regulations; the federal Physician Self-Referral Prohibition provisions of the Social Security Act and regulations adopted thereunder; statutes, regulations and other laws governing the prescribing and dispensing of controlled substances; any provider handbook or manual published by the Centers for Medicare & Medicaid Services (CMS), a state Medicaid program or any other government health care benefit program, or other policy enforced by a government entity; statutes, regulations and other laws governing pharmacies; and statutes, regulations, and other laws governing breach notifications.
1.3. “Client Data” means all information entered by Client or a Permitted Entity into the Hosted Programs or the Third-Party Services or received by LumaShift on behalf of Client. For the avoidance of doubt, the term “Client Data” does not include any information that has been properly de-identified as contemplated by Section 3.3 hereof.
1.4. “Confidential Information” means the terms of this Agreement and all confidential and business proprietary information of a party hereto (including, with respect to Client, Client Data) disclosed in connection with the provision or receipt, as the case may be, of Services hereunder; provided, however, that the term “Confidential Information” does not include any information that (i) is or becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party, either directly or indirectly, from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party.
1.5. “Data Storage” means disk space allocated for the storage of documents, images, scheduled reports, and other files (including Client Data). Data Storage does not include application data stored in the SQL server database, or data such as claim files submitted to a clearinghouse, or remittance files received from a clearinghouse.
1.6. “Day” means a day other than Saturday and Sunday or public holiday in the United States of America when banks are open for business.
1.7. “Effective Date” means the date on which Client accepted these Terms of Service.
1.8. “Electronic Services” means the transmission and processing of claim information (including a distinct claim, remit, inquiry, information request, statement collection letter print image, or other item) by an independent third party between the Hosted Programs, on the one hand, and a payor, on the other.
1.9. “Federal Health Care Program” has the meaning set forth at 42 U.S.C. § 1320a-7b(f)
1.10. “Health Data” means any Protected Health Information (as defined by HIPAA) and any other Client Data associated therewith that is reasonably necessary for the treatment of any patient of a Client or a Permitted Entity.
1.11. “HIPAA” means the Administrative Simplification Section of the Health Insurance Portability and Accountability Act of 1996, Subtitle D of the HITECH Act, and their implementing regulations, as they may be amended from time to time.
1.12. “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act.
1.13. “Hosted Programs” means the computer software programs owned or licensed by LumaShift in object code form, and that Client has subscribed to as set forth in an Order Form(s) or an Addendum; provided, however, that the term “Hosted Programs” does not include any Third Party Service.
1.14. “Hosting Services” means (i) access to and use of the Hosted Programs or the Third-Party Services that Client has subscribed to, and (ii) the storage, retrieval and processing of Client Data in connection with the use of the Hosted Programs and the Third-Party Services.
1.15. “Office Key” means an authorization code issued by LumaShift to Client or used by a Permitted Entity, pursuant to which Client or such Permitted Entity is authorized to access and use the Hosted Programs and the Third-Party Services.
1.16. “Penetration Testing” means the practice of testing the Hosted Programs or Third-Party Services and any related networks or web applications to find vulnerabilities that an attacker could exploit.
1.17. “Permitted Entity” means, with respect to any Client, the end user clients of that Client.
1.18. “Personnel” means the employees, agents, subcontractors, or assistants of the Clients. The use of the term “Client” shall include Client’s Personnel.
1.19. “Provider” means a Client’s or Permitted Entity’s employees, contractors, or agents that provide billable patient care or services on behalf of Client or Permitted Entity, including, without limitation, Physician Providers, Mid-Level Providers, Facility Providers, Limited Providers, and Rotating Providers (in each case, as defined below). For the avoidance of doubt, other medical support staff are not considered Providers, hereunder, including the following types of personnel: nurse, medical/therapy/dental assistant, technician (lab, radiology, etc.), phlebotomist, and case manager.
1.19.1. “Physician Provider” means a person with a physician-level medical license, including, but not limited to, the following professional designations: MD, DPM, DPT, DSW, OD, Psy.D, DMD, DDS, DO, DC, or Ph.D.
1.19.2. “Mid-Level Provider” means a person with a professional designation in the following categories, or any other professionally equivalent license: Nurse Practitioner, Physician Assistant, Licensed Therapist (physical, occupational, speech, respiratory, marriage/family, massage, etc.), Nurse Midwife, Registered Dietician, Mental Health Counselor, or Social Worker.
1.19.3. “Facility Provider” means a medical facility or equipment that is the billed entity for billable patient care or services.
1.19.4. “Part-Time Provider” means a person whose use of the Hosted Programs and the Third-Party Services is limited to 120 Billable Encounters per month.
1.19.5. “Rotating Provider” means a Provider whose use of the Hosted Programs and the Third-Party Services is restricted to non-concurrent use with any other Rotating Provider sharing the same Office Key. The collective use of all Rotating Providers sharing the same Office Key shall not exceed 110% of LumaShift’s clients’ average Provider use of the Hosted Programs, as determined by LumaShift from time to time.
1.20. “Service/s” means, as applicable with respect to Client, Hosting Services, Support Services, Implementation Services, Third-Party Services, and any other service (other than revenue cycle management services or medical billing collection services) purchased by Client (whether identified on an Order Form(s) or otherwise contemplated by this Agreement).
1.21. “Standard Rate” means, with respect to any Service, LumaShift’s standard rate for such Service (including, if applicable, time and material charges), as set forth in LumaShift’s standard fee schedules, as in effect from time to time.
1.22. “Support Services” means those support services provided by LumaShift which may change from time to time in the sole and absolute discretion of LumaShift.
1.23. “Terms of Service” means these terms of service, agreed to by Client or applicable to the Service used by Client, in all cases, as such may be updated, revised, modified, or amended from time to time as permitted herein.
1.24. “Third-Party Services” means any software, offering, product, or functionality that Client uses, but which is provided by an independent third party.
2. Use of Hosted Programs and Third-party-services
2.1. Right to Use Hosted Programs and Third-Party Services.
2.1.1. During the term of this Agreement, LumaShift grants to Client a non-exclusive, non-transferable right for Providers to access and use the Hosted Programs and Third-Party Services.
2.1.2. Client shall not transfer, sell, lease, or lend the Hosted Programs or the Third-Party Services, or any software or systems used to provide the Hosted Programs or the Third-Party Services, or any contents, information, tools, and resources therein, to any third party. Client shall not (i) allow any third party to access or use the Hosted Programs or the Third-Party Services, or (ii) access or use the Hosted Programs or the Third-Party Services for third-party training, commercial time-sharing, software hosting, rental or service bureau use
2.1.3. Client shall not download, modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Hosted Programs or the Third-Party Services or in any software or system used by LumaShift in connection with providing the Hosted Programs or the Third-Party Services.
2.1.4. As between the parties, LumaShift retains all title and interest in any copyrights, patents, trade secrets, know-how and other proprietary rights of any kind in the Hosted Programs, the Third Party Services, any custom Templates (including without limitation reports, forms, or similar documents found in or derived from those found in LumaShift’s library) developed by LumaShift on behalf of Client or otherwise, and any software or other intellectual property developed by LumaShift as part of the Services. Client does not acquire any rights, express or implied, in the Hosted Programs, the Third-Party Services, or any software or other intellectual property developed by LumaShift as part of the Services, other than the right to access and use the Hosted Programs, the Third Party Services, and such software or intellectual property as set forth in this Agreement. Any information provided to LumaShift by the Client during the process of developing custom Templates for use by the Client will not serve as a basis for the Client to claim any right to any copyrights, patents, trade secrets, know-how and other proprietary rights of any kind in the Hosted Programs, the Third-Party Services, any custom Templates developed by LumaShift on behalf of the Client, and any software or other intellectual property developed by LumaShift as part of the Services. The Client agrees not to modify, copy, distribute, transmit, display, perform, publish, create derivative works from, sublicense, transfer, assign, rent, sell, or otherwise convey any of the Hosted Programs, the Third-Party Services, and custom Templates developed by LumaShift on behalf of the Client, and any software or other intellectual property developed by LumaShift as part of the Services. LumaShift may terminate or suspend Client’s access to and use of the Hosted Programs, the Third-Party Services and such software or intellectual property (in whole or in part) at any time, with or without notice, if LumaShift has reason to believe that Client has violated the terms set forth in this Section 2.1.
2.2. Verification – LumaShift or its agents shall have the right to monitor use of the Hosted Programs and the Third-Party Services by Client or any Permitted Entity. This audit right includes, but is not limited to (i) electronic monitoring at any time, and (ii) an on-site audit, which may be conducted not more than once per year upon reasonable notice to Client (and which shall be conducted in a manner so as not to unreasonably interfere with Client’s business).
3.1. Provision of Hosting Services and Support Services.
3.1.1. LumaShift shall provide the Hosting Services purchased by Client.
3.1.2. LumaShift will provide Support Services.
3.2. Security of Client Data
3.2.1. LumaShift agrees to maintain the security of Client Data using industry-standard data security protocols, and other methods reasonably deemed to be adequate for secure business data. LumaShift shall employ commercially reasonable storage and reasonable precautions to prevent the loss of or alteration to Client’s Data, however, LumaShift does not guarantee against any such loss or alteration. LumaShift is not, and will not be, Client’s official record keeper.
3.3.1. LumaShift may use and disclose Protected Health Information to create de-identified health information and use and disclose the de-identified health information for any purpose, including after any termination of the Agreement.
4. Client Obligations and Responsibilities
4.1. Client Representations and Covenants
4.1.1. Client represents and warrants to LumaShift that (i) Client’s use of the Client Data in connection with the Services (including the right to transfer, store, process and cache Client Data in connection with the use of the Hosted Programs and the Third-Party Services) complies with all Applicable Laws, and that Client has received all necessary third party approvals with respect to the Services and its use of the Hosted Programs and the Third-Party Services, and (ii) the Client Data, and Client’s use of the Client Data (including storage, processing, and caching of Client Data), do not infringe the intellectual property rights of any third party, and Client agrees to indemnify and hold LumaShift harmless from any third-party claims arising from Client’s use of the Client Data in connection with the Services.
4.1.2. Client shall comply with all Applicable Laws and regulations applicable to Client’s conduct of its business, including, without limitation, obtaining and maintaining all applicable federal, state, and local licenses.
4.1.3. Client shall obtain all authorizations, consents, and other permissions that are required or necessary under the Telephone Consumer Protection Act, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 or any other Applicable Law for Client to send any text message, email, automated or pre-recorded telephone call or other form of communication to a Client patient, caregiver or other agent or representative of a Client patient, or any other individual or entity. Client acknowledges and agrees that LumaShift has no responsibility for obtaining any permission for any communication that Client or any of Client’s employees, agents or contractors sends or otherwise initiates through or in connection with the Hosted Programs or any other Third-Party Service used in connection with this Agreement. Client shall indemnify and hold LumaShift harmless from any penalties, expenses or other losses resulting from a third-party claim that Client, LumaShift or any third party sent a communication to a Client patient or a representative of Client’s patient in connection with this Agreement.
4.1.4. Client represents and warrants to LumaShift that (i) Client is not excluded, debarred, suspended, or otherwise sanctioned by any Federal Health Care Program or other federal or state procurement or nonprocurement program and (ii) no employee, agent, contractor or other representative of Client is sanctioned by any such program. Client shall notify LumaShift within two (2) Days of learning that this representation and warranty ceases to be true. LumaShift may terminate this Agreement in accordance with Section 5.2 if Client breaches Section 4.1.4(i) or Client breaches Section 4.1.4(ii) and fails to terminate its relationship with the sanctioned representative within five (5) Days.
4.1.5. Client shall not conduct (directly or indirectly through contract or otherwise) any form of Penetration Testing of the Hosted Programs and Third-Party Services or of any related networks or web applications without the express written approval of LumaShift that must include the scope and parameters by which Penetration Testing may occur.
4.1.6. Client shall indemnify and hold LumaShift harmless from any penalties, expenses, or other losses resulting from a third-party claim alleging acts or omissions by Client or any Client user constituting information blocking as defined in 42 U.S.C. § 300jj-52 and regulations thereunder.
4.2. Data Import Limitations
4.2.1. Client is responsible for providing all Client Data in an industry standard format regularly used by LumaShift in the ordinary course of business. Client acknowledges and agrees that the Client Data available in the Hosted Programs and Third-Party Services will be a reflection of the quality of the data provided by the Client. LumaShift is not responsible for the inability to perform or access Services due to improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. Client shall maintain (on a server owned or under the control of Client, or in any other manner Client shall elect) an accurate backup copy of all data provided to LumaShift. Client acknowledges that transferring Client Data in connection with the use of the Hosted Programs or Third-Party Services is subject to the possibility of human and mechanical errors, omissions, and losses, including inadvertent loss of data, or damage to media that may give rise to loss or damage. Client is responsible to adopt reasonable measures to limit the impact of such problems.
4.3. Software and Hardware Requirements
4.3.1. Client is responsible for obtaining and licensing, at its own expense, compatible hardware and software required to access and utilize the Hosted Programs and Third-Party Services including appropriate telephone lines, modems, Internet service provider and Internet browser.
4.3.2. Client agrees that all software it uses to access the Hosted Programs or Third-Party Services will support the Secure Socket Layer (SSL) protocol.
4.4. Account Names and Passwords.
4.4.1. Client is responsible for safeguarding the confidentiality and use of account names and passwords, and agrees to take any and all actions necessary to maintain the privacy of such information.
4.4.2. Client shall be liable and responsible for any and all activities conducted through its account, whether or not such activities have been authorized by Client. LumaShift will deem any communication, data transfer, or use of the Hosted Programs or Third-Party Services received under Client’s account names and passwords to be for Client’s benefit and use.
4.4.3. Client will promptly notify LumaShift if account names or passwords are lost, stolen, or are being used in an unauthorized manner. Upon LumaShift’s request, Client will provide LumaShift with accurate and complete registration information of Providers, and the additional permitted non-Provider users associated with authorized Providers, that have access to the Hosted Programs or Third-Party Services.
4.5. Ownership of Client Data
4.5.1. As between the parties, Client is the owner of all Client Data; provided, however, that nothing herein shall prevent LumaShift from using or disclosing such Client Data as may be required by Applicable Law, or as otherwise permitted in this Agreement. Without limiting the foregoing, LumaShift may use and disclose Protected Health Information to create de-identified health information and may use Client Data to provide data aggregation services. As between the parties, LumaShift is the owner of any de-identified health information and any data set that aggregates Client Data with Client data from other LumaShift Clients. In all cases, the identity of Client will not be determinable from the de-identified health information or any aggregated data set.
5. 5. Term and Termination
5.1.1. Subject to the termination rights set forth in this Agreement, Client’s rights to access and use the Hosted Programs and the Third-Party Services shall remain in effect for the initial term (and any renewal term). The initial term shall be the period commencing on the Effective Date and ending on the last day of calendar month immediately following the month in which the Effective Date occurs, and (ii) no renewal term is set forth on the Order Form(s) or an Addendum, then the initial term shall automatically renew for additional one-month terms (and the cost for the Hosted Programs and Third Party Services shall be billed at then-current fees or any fees set by LumaShift) until either party gives thirty (30) Days advance written notice prior to the end of the then-current term of its intention to terminate this Agreement.
5.2. Termination for Cause
5.2.1. Either party may terminate this Agreement at any time upon five (5) Days prior written notice, if the other party commits a material breach of any representation, warranty, agreement, or covenant set forth in this Agreement that remains uncured after fifteen (15) Days written notice specifying the nature of the breach and identifying the measures required to correct the breach.
5.3. Additional LumaShift Termination Rights
5.3.1. LumaShift may terminate this Agreement upon ten (10) Days prior written notice for non-payment of fees.
5.3.2. LumaShift may terminate this Agreement upon ten (10) Days prior written notice in accordance with the terms of Section 6.1
5.3.3. LumaShift may terminate this Agreement immediately if Client becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against Client and not dismissed within 90 Days after commencement of one of the foregoing events.
5.3.4. LumaShift may terminate this Agreement immediately in the event Client or its employee(s) includes in the Hosted Programs any content that (i) is obscene, offensive, threatening, or malicious, (ii) violates any Applicable Law, or (iii) otherwise exposes LumaShift to civil or criminal liability.
5.3.5. LumaShift may suspend or terminate this Agreement immediately in the event of any wrongful or unauthorized access to or use of the Hosted Programs or the Third-Party Services by Client or other third party.
5.4. Effect of Termination
5.4.1. Upon termination of this Agreement, access to and use of the Hosted Programs and all Services shall be terminated. Termination of this Agreement shall not (i) relieve any party from any liability that may have arisen prior to such termination, nor shall such termination (other than for termination by Client under Section 5.2 above, or termination by LumaShift under Section 5.3.2 above) relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client under this Agreement, and any unpaid fees related to the initial term or any renewal term; and (ii) limit either party from pursuing other remedies available to it, including injunctive relief. Upon any termination of this Agreement, LumaShift shall have the right to maintain a copy of all Client Data in accordance with, and for the period of time it determines is required or permitted by, Applicable Law. If within 30 Days of termination of this Agreement, Client requests return of Client Data and Client has not obtained an electronic copy of Client Data through any export functionality of the Hosted Programs, LumaShift will make available data export and retrieval methods and related services to Client that LumaShift has determined are technically feasible and commercially reasonable as of the Client Data export request date. Client acknowledges that data export and retrieval methods and related services available from LumaShift may change over time based on the features and functionality of the Hosted Programs, regulatory requirements, and other factors. All subsections in Sections 1, 4.5, 5, 6, and 8 shall survive any termination of this Agreement.
6. Indemnity, Warranties, Limitation on Liability; Remedies
6.1. LumaShift Ownership; Infringement Indemnity
6.1.1. All computer programs and related documentation made available, directly or indirectly, by LumaShift to Client as part of the Services are the exclusive property of LumaShift or the third parties from whom LumaShift has secured the rights to such services or products. All rights, title, and interest in or to any copyright, trademark, service mark, trade secret and other proprietary right relating to the Hosted Programs and the Services are reserved.
6.1.2. LumaShift shall indemnify, defend, and hold harmless Client from and against any and all suits, proceedings, claims, demands, or causes of action by a third party that the Hosted Programs infringe upon or misappropriate any United States copyright, patent, trade secret or other intellectual or industrial property right of any kind or nature whatsoever (a “Claim”).
6.1.3. LumaShift shall have no liability under this Section 6.1 to the extent a Claim is attributable to (i) combination or use of the Hosted Programs with any item, component, product, material, software or process not provided by LumaShift, if liability would not have arisen but for such combination or use with such item, component, product, material, software or process; (ii) use of the Hosted Programs in any way not authorized nor contemplated by this Agreement, if liability would not have arisen but for such unauthorized use; or (iii) any breach by Client of this Agreement, if liability would not have arisen but for such breach.
6.1.4. In the event the Hosted Programs are held by a court of competent jurisdiction to, or are believed by LumaShift to, infringe or misappropriate any third party right, LumaShift shall have the option, at its expense, to (i) modify the Hosted Programs to be non-infringing, (ii) replace the Hosted Programs with a non-infringing substitute, (iii) resolve any claim to allow use of the Hosted Programs, (iv) obtain for Client a subscription to continue using the Hosted Programs, (v) terminate the subscription for the infringing Hosted Programs, or (vi) terminate this Agreement.
6.1.5. The indemnification obligations set forth in this Section 6.1 are subject to the following conditions: (i) Client shall give LumaShift written notice of any Claim for which Client intends to claim indemnification within ten (10) Days of the Claim; (ii) Client shall give LumaShift the sole right to control and direct the investigation, defense and settlement of the Claim, including selection of defense counsel; and (iii) Client shall reasonably cooperate with LumaShift in the investigation, defense and settlement of the Claim. Reasonable out-of-pocket expenses incurred by Client in providing such assistance will be reimbursed by LumaShift. Client shall not settle or compromise any Claim, and any such settlement or compromise shall be void as against LumaShift and shall terminate LumaShift’s obligation to indemnify Client with respect to such Claim.
6.1.6. Client acknowledges and agrees that the remedies provided in this Section 6.1 are the sole and exclusive remedies of Client, and consequently the sole and exclusive liability of LumaShift, with respect to any Claim.
6.2. LumaShift Warranties; Time Period; Disclaimers
6.2.1. Warranty for the Hosted Programs and Hosting Services – Subject to Client’s compliance with its obligations under Sections 4.2 and 4.3, LumaShift represents and warrants that the Hosted Programs and Hosted Services will perform in all material respects in accordance with the documentation provided by LumaShift within the Hosted Programs (titled “Help Files”), or paper or CD copies of such documentation. This warranty shall apply for a period of ninety (90) Days from the Effective Date. Any breach not reported within such period will be deemed waived and accepted by Client.
6.2.2. Lumashift does not guarantee, represent or warrant that the Client’s use of the Service will be uninterrupted, timely, secure or error-free.
6.2.3. Lumashift does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
6.2.4. Lumashift agrees that from time to time we may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to the Client due to unavoidable circumstances.
6.2.5. The Client expressly agrees that the use of, or inability to use, the Service is at the Client’s sole risk. The Service and all products and services delivered to you through the Service are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for Client’s use, without any representation, warranties, or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
6.2.6. The Client understands that Lumashift cannot and does not guarantee or warrant that information or files downloaded from the Website will be free of viruses or other destructive code. The Client is responsible for implementing sufficient procedures and checkpoints to satisfy the Client’s particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to Lumashift website for any reconstruction of any lost data.
6.2.7. Warranty for Data Importation – Subject to Client’s compliance with the terms of Section 4.2, LumaShift represents and warrants that the importation of data by LumaShift will conform in all material respects with the written documentation provided by LumaShift. This warranty shall apply until the earlier of (i) the expiration of five (5) Days from the date the data at issue is imported or (ii) the date the database is first altered in any way by the Client. Any breach not reported within such period will be deemed waived and accepted by Client.
6.2.8. Disclaimers – THE WARRANTIES SET FORTH IN THIS SECTION 6.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY ORAL REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OF LUMASHIFT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LumaShift does not warrant that the Hosted Programs or the Third-Party Services will operate in the combinations that Client may select for use, that the operation of the Hosted Programs or the Third Party Services will be uninterrupted or error-free, free of viruses or any other malicious code, or fit for its intended purpose, or that all Hosted Program errors or the Third Party Services errors will be corrected. Any description of the Hosted Programs contained on LumaShift’s website or promotional materials is for the sole purpose of identifying them, and any such description is not a part of the basis of the bargain and does not constitute a warranty or representation.
6.3. Exclusive Remedies
6.3.1. For any breach of the representations and warranties contained in Section 6.2, Client’s exclusive remedy, and LumaShift’s entire liability, shall be as follows:
18.104.22.168. With respect to a breach of the representation and warranty set forth in 6.2.1, LumaShift shall correct the error(s) that caused LumaShift to breach its warranty to Client.
22.214.171.124. With respect to a breach of the representation and warranty set forth in 6.2.2, upon verification of the error, LumaShift shall at its option either (i) correct the database; or (2) refund the amount paid for the data import service.
6.4. Exculpation of Certain Claims; Limitation on Liability
6.4.1. LumaShift uses unrelated third parties to provide the Third-Party Services, and the availability, and accuracy of such Third-Party Services is not within LumaShift’s control. Client hereby waives any and all liability and claims which Client may have against LumaShift in connection with the Third-Party Services, except as specifically set forth in Section 6.3, and for liability directly caused by the gross negligence or willful misconduct of LumaShift.
6.4.2. Client shall be liable for (and Client hereby waives any and all liability and claims which Client may have against LumaShift for), (i) any inaccuracy in Client Data provided by Client, (ii) the consequences of any instructions Client may give to LumaShift, (iii) maintaining and backing up any Client Data, and (iv) Client’s failure to protect user account names and passwords. In addition, LumaShift is not responsible for (x) Client’s access to the Internet, (y) interception or interruptions of communications through the Internet or (z) changes or losses of data through the Internet, in each case, other than to the extent caused solely by LumaShift.
6.4.3. In connection with use of the Hosted Programs and the Third-Party Services, LumaShift may provide or make available to Client certain templates. Client hereby waives any and all liability and claims which Client may have against LumaShift or any third party in connection with the use, modification, and/or customization of such templates, except for liability directly caused by the gross negligence or willful misconduct of LumaShift. FURTHER, LUMASHIFT IS IN NO WAY ENGAGED IN THE PRACTICE OF MEDICINE OR ACTING AS A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL OR PROVIDER. ANY TREATMENT, THERAPY, PROCEDURE, INFORMATION, MEDICATION, PRODUCT OR OTHER INFORMATION REFERENCED BY OR THROUGH THE SERVICES ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, THERAPY, PROCEDURE, INFORMATION, MEDICATION, PRODUCT OR OTHER INFORMATION. THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH THE PATIENT’S HEALTH CARE PROVIDER.
6.4.4. LumaShift shall not have any liability under this Agreement for any disclosure or modification of Client Data, or for any consequences that may arise from such modifications (including, but not limited to, incorrectly modified or lost data), in either case, made by means of access to the APIs by or on behalf of Client, or by means of access by any third party to the extent such third party obtained access to the APIs as a result of disclosure by Client of user IDs or passwords to such third party, any breach of this Agreement by Client, or any negligence by Client, its employees, agents or representatives.
6.4.5. Limitation of Liability – In no event shall either party be liable under this Agreement for any indirect, incidental, special, consequential or punitive damages, or damages for business interruption, loss of profits, revenue, data or use, or cost of cover suffered by the other party or by any third party, whether in an action in contract or tort, and even if the party has been advised of or is aware of the possibility of such damages. LumaShift’s total liability for direct damages suffered by Client or any of its affiliates under this Agreement or related to the Services shall in no event exceed an amount equal to three (3) times the average monthly fee paid by Client to LumaShift under this Agreement.
6.4.6. This Section 6.4 sets forth the full extent of LumaShift’s liability for damages resulting from this Agreement and the Services, regardless of the form in which such liability of claim for damages may be asserted. The provisions of this Agreement allocate the risks between LumaShift and Client. The parties agree that LumaShift’s pricing and other terms and conditions of this Agreement reflect the allocation of risk and the limitation of liability specified herein, and Client acknowledges that without such limitation on liability and Client’s agreement to maintain redundant copies of all data provided to LumaShift in connection with the Services, LumaShift would not have entered into this Agreement.
7. Payment Provisions
7.1. Fees, Invoicing and Payment; Suspension of Service
7.1.1. Client shall pay the fees set by LumaShift for the Services.
7.1.2. Invoices for payment of all Services are to invoiced by LumaShift to the Client. Fees for one-time Services (e.g., set-up and Implementation Services) are due upon acceptance of any Service and prior to delivery of the applicable Service. Recurring fees (e.g., fees for Hosting Services) begin on the Effective Date, and shall be payable monthly in advance and due in full on the first day of each month. Fees that are variable and dependent on actual usage (e.g., per-transaction fees) shall be billed monthly in arrears and due upon receipt.
7.1.3. Any amounts payable by Client hereunder which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under Applicable Law, from the due date until the date such amount is paid.
7.1.4. Without limiting the additional fees and charges that shall be payable by Client pursuant to Section 7.1.3, if applicable, LumaShift shall have the right, exercisable in its sole and absolute discretion, to suspend Client’s access to, and use of, the Hosted Programs, the Third-Party Services and the Services, in the event that Client has not paid any amounts due hereunder by the time such payment is due.
7.1.5. Client shall have ninety (90) Days from receipt of an invoice to dispute any portion of the invoice and any issue not raised by Client in writing within ninety (90) Days from receipt of the invoice is hereby irrevocably waived by Client. To the extent LumaShift incurs any expenses in collecting (or seeking to collect) unpaid amounts due from Client under this Agreement (including, but not limited to, reasonable attorneys’ fees), Client shall be liable for (and promptly reimburse LumaShift) for any such expenses.
7.1.6. Client’s payment obligations hereunder with respect to the Services may (if authorized by Client) be made by direct withdrawal from Client’s bank account. In the event Client has given such authorization, such withdrawal is subject to the operating rules of the National Automated Clearing House Association (“NACHA”). LumaShift and Client each agree to be bound by and comply with the NACHA rules applicable to it with respect to such withdrawals. Any authorization given by Client shall remain in effect unless and until revoked in writing by an authorized representative of Client and until Client’s bank and LumaShift have each received such notice and have had reasonable time to act upon such notice.
7.1.7. In the event that LumaShift’s costs of making available the Hosted Programs, the Third-Party Services or other Services increase during the initial term or any renewal term, LumaShift may increase the fees accordingly.
7.1.8. By entering into this Agreement, LumaShift and Client expressly acknowledge and intend that the terms contained in such documents related to the content and manner of a request for access, exchange, or use of electronic health information (as defined at 45 C.F.R. § 171.102), including any and all terms related to fees, reflect the parties’ mutual agreement (in an arms’ length transaction without coercion) and meet the “content” and “manner requested” conditions of the Content and Manner Exception at 45 C.F.R. §§ 171.301(a) and (b)(1), respectively.
7.2.1. The fees listed in this Agreement do not include taxes; there shall be added to all payments hereunder amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on LumaShift’s net income. If LumaShift is found to be responsible for the withholding and payment of taxes on behalf of Client, Client agrees to indemnify LumaShift with respect to the full amount of taxes due, together with applicable interest and penalties. If Client is required to withhold any tax from any payment, then the amount of the payment will be automatically increased to completely offset such tax so that the amount remitted to LumaShift, net of all taxes, equals the amount invoiced or otherwise due.
7.3. Variable Use Service Fees
7.3.1. Variable use service fees are subject to external costs (such as postage rates, paper, etc.) and therefore are subject to change with 30-day written notice to Client.
8. General Terms
8.1. Confidential Information
8.1.1. All Confidential Information disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care; provided, however, that LumaShift may disclose Protected Health Information included within the Confidential Information. The receiving party will limit access to Confidential Information to its affiliates, employees, and authorized representatives with a need to know and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party (i) to the extent necessary to comply with any Applicable Law, (ii) as appropriate, to respond to any summons or subpoena or in connection with any litigation, and (iii) to any vendor with which LumaShift has an API (if Client has elected to use such API).
8.1.2. Client acknowledges that LumaShift, its affiliates or its recommended vendors may use Confidential Information as permitted by Applicable Law to evaluate possible commercial arrangements between LumaShift, its affiliates or its recommended vendors and Client, and to communicate with Client from time to time regarding LumaShift’s, its affiliates’ or its recommended vendors’ products and services (including, without limitation, Third Party Services) that may improve the efficiency of Client’s operations or otherwise benefit Client.
8.1.3. The obligations of LumaShift set forth in this Section 8.1 shall not apply to any suggestions and feedback for product or service improvement, correction, or modification provided by Client in connection with any present or future LumaShift product or service, and, accordingly, neither LumaShift nor any of its clients or business partners shall have any obligation or liability to Client with respect to any use or disclosure of such information. In addition, subject to any limitations imposed by HIPAA, with Client’s consent (which is hereby given), LumaShift may use internet/website analytics software tools and programs that collect, transmit, store, disclose and analyze certain information about the actual use of the Hosted Programs by Clients, Permitted Entities and/or Providers (such as, but not limited to, pages viewed, links clicked, help functions used and other workflow information); such information shall not be considered Confidential Information hereunder and may be used by LumaShift for the purpose of license administration, error resolution and product analysis and improvement
8.2.1. For the avoidance of doubt, nothing in this Agreement shall be construed to prohibit or restrict any communication in a manner that violates the Condition of Certification at 45 C.F.R. § 170.403(a).
8.3. Trademarks and Publicity
8.3.1. Except for linking to LumaShift web sites, Client may not use any LumaShift logo or trademark, whether or not such mark(s) are registered, without prior written approval from LumaShift. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the LumaShift name (or any derivative thereof) in Client’s URL, Business Name, or the names of any add-on products or services Client may be offering independent of LumaShift is strictly prohibited. Additionally, using the LumaShift name in paid targeted keyword advertising campaigns on search engines is also prohibited. Client shall not use LumaShift’s name, nor any adaptation or variation thereof, in any advertising, promotion or sales literature without LumaShift’s prior written consent in each instance.
8.4. Prohibited Uses
In addition to other prohibitions as set forth in this Agreement, Client is prohibited from using the Lumashift website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
8.5. Governing Law and Dispute Resolution
8.5.1. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Texas applicable to contracts made and wholly performed in such state. Any controversy or claim arising out of or relating to this Agreement, with the sole exception of Client invoice disputes which are governed by Section 7.1, or breach thereof, shall be submitted to the following procedure: (i) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (ii) if no resolution is reached within sixty (60) Days of the settlement conference, the parties will submit the dispute to non-binding mediation in Austin, Texas under the mediation rules of the American Arbitration Association; and (iii) if no settlement is reached within sixty (60) Days of the start of mediation, either party may seek legal redress in a forum of competent jurisdiction.
8.6.1. Client agrees to notify LumaShift of any changes to Client’s business address, business contact, and support contact within ten (10) Days of any change thereto. All notices required or permitted hereunder shall be given in writing or as specifically set forth in the applicable section of this Agreement. To expedite order processing, Client agrees that LumaShift may treat documents emailed or faxed by Client to LumaShift as original documents; nevertheless, either party may require the other to exchange original signed documents to evidence an order for Services
8.7. US. Government
8.7.1. The Hosted Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to LumaShift. If the Hosted Programs and accompanying documentation are used under the terms of a Department of Defense or civilian agency contract, the use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in this Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively. Non-solicitation
8.7.2. During the term of this Agreement and for six (6) months after any termination or expiration of this Agreement, neither party shall, alone or in association with others, solicit any employee or contractor of the other party (or its subsidiaries) to terminate its employment or contracting relationship with the other party or its subsidiaries. Nothing herein shall preclude either party from hiring employees or contractors of the other party (or its subsidiaries) to the extent such employees or contractors respond, without any solicitation by or on behalf of the hiring party, to advertisements or job openings published or otherwise made generally available to the public by the hiring party.
8.8. Other Terms
8.8.1. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other, or subsequent, default or breach.
8.8.2. Except for actions for nonpayment or breach of LumaShift’s proprietary rights in the Hosted Programs, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued.
8.8.3. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.
8.8.4. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between Lumashift and the Client.
8.8.5. LumaShift may assign this Agreement or any rights or obligations under this Agreement to a third party. Client may not assign this Agreement or any rights or obligations hereunder without the prior written consent of LumaShift, which consent shall not be unreasonably withheld or delayed; any such assignment without the prior consent of LumaShift shall be void. LumaShift may use subcontractors to perform Services under this Agreement; provided, however, that such subcontracting shall not relieve LumaShift from responsibility for performance of its duties hereunder.
8.8.6. LumaShift has no obligation to any third party by virtue of this Agreement, including any patient of any Client or Permitted Entity. Providers of Third-Party Services shall be third party beneficiaries to this Agreement with respect to the services provided to Client.
8.8.7. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the fullest extent possible, the economic, business, and other purposes of this Agreement.
8.8.8. Client acknowledges and agrees that calls to and from LumaShift may be monitored or recorded.
Notwithstanding anything to the contrary in this Agreement, if LumaShift determines that an amendment to this Agreement is necessary in order for a party to comply with a requirement of an Applicable Law, then LumaShift may amend this Agreement upon written notice identifying the Applicable Law requirement to Client and specifying an amendment effective date that is on or after the earlier of (i) the compliance effective date of the Applicable Law requirement or (ii) thirty (30) days after Client receives the written notice of the amendment. If Client notifies LumaShift that Client disagrees with LumaShift’s determination that the amendment is necessary within thirty (30) days of receipt of LumaShift’s notice of the amendment, then the amendment will become effective on the effective date in LumaShift’s notice and Client may terminate this Agreement effective at any time on or after the amendment effective date and before the end of Client’s then-current term. To the extent that LumaShift determines, in its sole discretion, that any provision is contrary to Applicable Law, then LumaShift will not enforce any such provisions.
8.8.10. No Legal Advice – Client’s use of the Hosted Programs, Third Party Services, or any Templates, forms or other documentation made available to Client in no way constitutes the provision of legal advice from LumaShift to Client.
8.8.11. Force Majeure – LumaShift is not liable under this Agreement for LumaShift’s non-performance caused by acts of war, terrorism, natural disasters (e.g., hurricanes, earthquakes), human-made disasters, other acts of God or nature, public health emergencies (including pandemics), public safety incidents, telecommunication or internet service interruption, strikes or other labor disputes or unrest, civil insurrections, riots, or other acts of civil disorder, acts of military, civil, or regulatory authority or any other events, conditions or causes beyond LumaShift’s reasonable control.
8.8.12. Client expressly agrees not to contest the validity of any electronic signature because the signature is performed electronically.