Services Terms and Conditions

“Carefully read the following terms and conditions (or the terms of any applicable signed agreement) before using any Infinx services (other than the Prior Authorization Software proprietary workflow management tool or the CDSM tool including any related software, and any Infinx websites (https://internalapi.infinx.com, https://ipa.infinx.com, https://live.ibridgeworkflow.com and/or www.infinxinc.com, among others), including all services, tools, forums and other content and information made available thereon (collectively, the “Sites”), all of which are governed by the Infinx SaaS Terms And Conditions located at www.infinx.com/SaaS-Terms). If you do not agree with these terms and conditions, you are not authorized to use any Infinx Services.”

INFINX SERVICES TERMS AND CONDITIONS

1. ACCEPTANCE OF TERMS.

Infinx offers certain Information Technology and Business Process Outsourcing solutions, including healthcare billing and coding, Revenue Cycle Management, and patient access services (“Services”).  The Services expressly exclude the “SaaS Services” which consist of the Prior Authorization Software proprietary workflow management tool or the cdsm tool including any related software, and any Infinx websites (https://internalapi.infinx.com, https://ipa.infinx.com, https://live.ibridgeworkflow.com and/or www.infinxinc.com, among others), and all services, tools, forums and other content and information made available thereon (collectively, the “Sites”).

The Services are offered subject to acceptance without modification of all of the current terms and conditions contained herein (“Terms”). These Terms shall be deemed to include all other operating rules, policies and procedures that are referred to herein or that may otherwise be published at the Sites by Infinx, as they may be revised and in effect from time to time (collectively, the “Policies”), including without limitation, the Privacy Policy.

These Terms are in addition to (not in lieu of) any other agreement (whether in writing or clickwrap) that you enter into with Infinx (now or in the future) relating to the Services or otherwise for business process outsourcing, including without limitation, any Infinx Services Order or Statement of Work (each an “Order”) and any Master Services Agreement and/or Business Associate Agreement (each, a “Primary Agreement” and collectively, the “Primary Agreements”). If there is any conflict or inconsistency between any provision of these Terms and any Primary Agreement, the provision of the Primary Agreement shall control. If you do not agree to all of these Terms, or if you are not eligible or authorized to enter into these Terms, then you are not authorized to use any of the Services.

Infinx may modify or terminate any of the Services, in whole or in part, at any time without notice.

2. SERVICES.

Vendor and Customer may enter into one or more written Statements of Works for the provision of Services by Vendor to Customer. As used herein, the term “Party” shall refer to either of Vendor or Customer as the context shall dictate, and the term “Parties” shall refer to both. Effective as of the applicable Effective Date set forth in an Order, Vendor shall, on non-exclusive basis, provide for the benefit of Customer those Services set forth in the applicable Order. Customer acknowledges that Vendor’s affiliates, Infinx Services Pvt. Ltd., an Indian company whose address is Unit No. 1, SDF 1, SEEPZ, Andheri (E) Mumbai 400 096 India and Enhanced Revenue Solutions, Inc., a Texas corporation whose address is 25700 I-45 North Suite 120, Spring, Texas 77386 (collectively, “Vendor’s Affiliates”), may perform certain of the Services under these Terms; provided, however, that Vendor shall remain responsible for the performance of, or the failure to perform, any of the Services by Vendor’s Affiliate and compliance with all other applicable provisions of these Terms and the BAA (as defined below).

3. HIPAA; BUSINESS ASSOCIATE AGREEMENT

1. In order for Vendor to furnish the Services to Customer, Customer must at times disclose to Vendor protected health information (“PHI”) governed by the Health Insurance Portability and Accountability Act of 1996, Pub. 104-191 (“HIPAA”), as amended, and the accompanying regulations promulgated thereunder at 45 C.F.R. Parts 160 and 164 and 45 C.F.R. Parts 160, 162 and 164, as amended, and regulations adopted thereunder by the U.S. Department of Health and Human Services as may be amended from time to time, and the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”) as may be amended from time to time (collectively, the “HIPAA Regulations”). Accordingly, Vendor and Customer agree to enter into Vendor’s form of Business Associate Agreement, in the form attached hereto as Exhibit A, and incorporated herein (“BAA”) in order to comply with the Business Associate requirements of HIPAA and other governmental requirements. Vendor further agrees that if it becomes aware of any breach or violation of patient privacy or security, or of any misuse of Customer’s patient data, originating from Vendor or Vendor’s Affiliate (or any of their personnel) or otherwise relating to the Services it will immediately notify Customer.
2. The Parties acknowledge that the HIPAA Regulations may be modified from time to time. The Parties specifically agree to take such action as necessary to implement the standards and requirements of the HIPAA Regulations and other applicable laws and regulations relating to the privacy and security of PHI. Further, the Parties acknowledge that pricing hereunder is based on legal requirements in effect on the Effective Date, and that compliance with additional or different legal requirements may result in changes of scope and pricing. Upon Customer’s request, Vendor agrees to enter into good faith negotiations with Customer concerning the terms of an amendment to these Terms and/or the BAA embodying written assurances consistent with the standards and requirements of the HIPAA Regulations or other applicable laws and regulations relating to the privacy and security of PHI. If the Parties fail to reach such an amendment within ninety (90) days after commencement of negotiations, either party may terminate these Terms and all Orders by providing written notice to the other party, effective sixty (60) days after the date of such notice.
3. Compliance with Laws. By entering into these Terms, the Parties specifically intend to comply with all applicable state and federal laws, rules and regulations, as they may be amended from time to time, including but not limited to (i) the personal services safe harbor of the federal anti-kickback statute (42 U.S.C. 1320a-7(b)) and in particular, that the Services performed under the Agreement do not involve the counseling or promotion of a business arrangement or other activity that violates any state or federal law; (ii) federal “Stark Law” (42 U.S.C. 1395nn) and (iii) federal and state privacy laws, including but not limited to HIPAA. Accordingly, no part of any consideration paid hereunder is a prohibited payment for the recommending or arranging for the referral of business or the ordering of items or services; nor are the payments intended to induce illegal referrals of business. In the event that any part of these Terms is determined to violate federal, state, or local laws, rules, or regulations, the Parties agree to negotiate in good faith revisions to the provision or provisions which are in violation so as to remove such violation(s).

4. Compensation.

Customer shall compensate Vendor for the Services pursuant to the compensation terms set forth in the applicable Orders, which may include reimbursement of expenses reasonably incurred by Vendor in connection with its performance of the Services. Unless stated otherwise in the applicable Order, Vendor’s compensation is exclusive of all taxes, assessments, duties and similar items by whatsoever name called (other than those upon Vendor’s net income) and the same shall be borne by the Customer.

5. Payment Terms.

All payments to be made under these Terms and all Orders, shall be made in United States Dollars via check, wire transfer, ACH or credit card (payments made using a credit card shall be subject to a three percent (3%) service fee). Vendor will invoice Customer on a monthly basis, except as set forth in an Order. Except as set forth in an Order, payment will be due within fifteen (15) days after receipt of the applicable invoice. If invoice is disputed, Customer must provide Vendor with written notice of the specific reasons for such dispute within three (3) business days after receipt of such invoice. Interest on any late payments for items on invoices which are not disputed in good faith shall accrue at the rate of one percent (1.0%) per month (but in no event in excess of the maximum rate permissible by law) during which any sums remain unpaid.

6. Vendor Representations.

Except during any Pilot Period(s) as defined and set forth in an Order, Vendor represents, warrants and covenants to Customer that: (a) the Services shall be performed by Vendor in a good and workmanlike manner; (b) Vendor shall provide Customer with daily, weekly and monthly reports as agreed by the Parties; (c) Vendor and Vendor’s Affiliates will perform the Services in a manner that is compliant with the HIPPAA Regulations; (d) the work product resulting from the provision of Services hereunder (“Vendor Work Product”) shall not violate or in any way infringe, to Vendor’s knowledge, upon any third party intellectual or proprietary rights; (e) all Services will be performed by appropriately trained and experienced individuals who will be supervised in such a manner so as to maintain Vendor’s compliance with the requirements of these Terms and any Order; and, (f) neither Vendor nor and Vendor’s Affiliates or their respective agents (i) have been convicted of a federal health care crime, (ii) have been excluded from participation in any federal health care programs; or (iii) is currently under investigation or involved in any legal proceeding which may lead to such a conviction or exclusion. Vendor agrees that, as between the Parties, Customer shall exclusively own any data and information (including Customer’s Confidential Information and patient information) provided by or on behalf of Customer in connection with the Services, including any derivative works containing such data and information.
OTHER THAN ANY SERVICE LEVEL GUARANTEES AND CORRESPONDING REMEDIES SET FORTH IN AN ORDER, THE WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Customer Representations.

Customer represents, warrants and covenants to Vendor that: (a) Customer shall provide all information/data and systems access necessary for Vendor to perform the Services, and any information/data shall be accurate, truthful and complete; (b) the data, materials and components provided by Customer to Vendor hereunder, including, without limitation, Customer’s software, methods, controls, codes and other embodiments of Customer’s intellectual property, shall not violate or in any way infringe, to Customer’s knowledge, upon any third party intellectual or proprietary rights; (c) Customer shall diligently review and assess the Vendor Work Product as it is provided to Customer and promptly provide feedback and requests for any necessary corrections or further reviews; and (d) neither Customer nor its agents (i) have been convicted of a federal health care crime, (ii) have been excluded from participation in any federal health care programs; or (iii) is currently under investigation or involved in any legal proceeding which may lead to such a conviction or exclusion.

8. Quality Assurance.

At all times Vendor will make reasonable efforts to respond to and cure all confirmed errors committed by Vendor or Vendor’s Affiliates in their performance of the Services. In addition, the Parties agree to meet no less often than once per quarter to review the overall quality of the Services, including, without limitation, a discussion of service level performance and accuracy, complaint handling procedures, and other topics as mutually agreed by the Parties. The Parties agree to share information and data sufficient to support all quality reviews.

9. Term and Termination.

1. Term. The term of these Terms shall begin as of the first day that Services are performed by Vendor or Vendor’s Affiliate, where applicable, pursuant to an Order (which date may be prior to, as of, or after the Effective Date) and shall continue indefinitely until terminated pursuant to the provisions below.
2. Termination Without Cause. Except as set forth in an Order, either Party may terminate these Terms and all Orders without cause at any time by delivering ninety (90) days prior written notice to the other Party. Either Party may terminate these Terms with or without cause at any time by delivering ten (10) days prior written notice to the other Party, if no Orders are then in effect.
3. Termination for Default/Breach. In the event of a material default or breach hereunder by either Party, the other Party may terminate these Terms, including any Orders then in effect, by delivering written notice to the other Party describing the default/breach and such default/breach remains uncured thirty (30) days thereafter (except for defaults based on a failure to pay fees for Services due hereunder which must be uncured for five (5) business days).
4. Termination for Bankruptcy. Either Party may terminate these Terms immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debt when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
5. Surviving Sections. Upon the termination of these Terms and any Orders for any reason, Customer’s compensation obligations as to any Services performed prior to termination, and Sections 1, 3-5 and 9-16, inclusive, and any other provisions whose survival is implied shall survive termination, and the Parties’ rights and responsibilities thereunder, shall remain in full force and effect.
6. Suspension for Non-Payment. In the event of the failure of Customer to timely make any payments due hereunder, Vendor may suspend performance of all or any portion of the Services, including any Orders then in effect, by delivering written notice to Customer describing the failure and such failure remains uncured ten (10) days thereafter.

10. Limitations of Liability.

1. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY: (I) IN NO EVENT WILL ANY PARTY BE LIABLE TO EITHER PARTY OR ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION CUSTOMER’S CLIENTS) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, AND (II) VENDOR’S TOTAL LIABILITY ARISING UNDER OR OUT OF THESE TERMS OR THE PERFORMANCE OF THE SERVICES IS LIMITED TO THE TOTAL AMOUNT PAID TO VENDOR BY CUSTOMER FOR THE APPLICABLE STATEMENT(S) OF WORK DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE A PARTICULAR CLAIM AROSE BUT IN NO EVENT LESS THAN TEN THOUSAND DOLLARS (US$10,000).
2. CUSTOMER ACKNOWLEDGES THAT, IN CONNECTION WITH THE SERVICES PROVIDED UNDER THESE TERMS, INFORMATION SHALL BE TRANSMITTED OVER LOCAL EXCHANGE, INTEREXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG-DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS, AND OTHERS, ALL OF WHICH ARE BEYOND THE CONTROL AND JURISDICTION OF VENDOR. ACCORDINGLY, VENDOR ASSUMES NO LIABILITY FOR OR RELATION TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE SERVICES PROVIDED UNDER THESE TERMS.
3. VENDOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH REGARD TO ACTIONS OF THIRD PARTIES (OTHER THAN VENDOR’S AFFILIATE), INCLUDING BUT NOT LIMITED TO DISPUTES CONCERNING PAYMENT OF CLAIMS, ELIGIBILITY STATUS OF A PATIENT, AUTHORIZATIONS FOR CREDIT, DEBIT OR CHECK TRANSACTIONS, PRE-AUTHORIZATION, PRE-CERTIFICATION, OR OTHER PAYER-SUBMITTED INFORMATION.

11. Non-Solicitation/Non-Hire.

Neither Party shall solicit for employment (except for general solicitations such as advertisements, job fairs, etc.) or hire as employees or retain as independent contractors the other Party’s or its affiliated companies’ employees or independent contractors which have been involved in the performance of the Services until one (1) year after the end of the Services. In the event of any such employment or retention, the party who hires or retains such a person shall pay to the other party an amount equal to the greater of (i) two hundred percent (200%) of the prior annual total compensation of such employee, or (ii) twenty thousand dollars ($20,000).

12. Confidential Information.

“Confidential Information” excludes Protected Health Information/PHI (which is governed by the terms of the BAA) and means all non-public information furnished by a Party to the other Party in performance of these Terms that is clearly identified as confidential in writing at the time of disclosure or which reasonably should be considered as confidential from its nature or from the circumstances surrounding its disclosure or as otherwise considered confidential in accordance with applicable law, including, without limitation, the HIPAA Regulations. The terms of these Terms and the Orders shall be considered Confidential Information of Vendor. Except as required by law, a Party receiving Confidential Information of the other Party shall not use or disclose, and shall not permit to be used or disclosed, such Confidential Information other than in connection with these Terms or to any third party, including disclosure of any data or document (in any form) that contains or reflects Confidential Information and including any analysis or derivative of the Confidential Information, other than as required by law, as necessary to enforce or perform the Services under these Terms or to a Party’s and its affiliates’ directors, officers, employees, financial and legal advisors, potential investors and investors (including the Vendor’s Affiliate), none of whom may be a competitor of the Party whose Confidential Information is being disclosed, who need to know such information, all of whom such party shall advise, in writing at or before the time of the disclosure, of the confidentiality and non-disclosure provisions contained herein. “Confidential Information” excludes any information that (a) is or has become generally known to the public through no unlawful act of the recipient; (b) was known to the recipient at the time of its disclosure by the discloser; (c) was independently developed by the recipient without any use of Confidential Information; (d) becomes known to the recipient from a source other than the disclosing party without breach of these Terms and otherwise not in violation of the disclosing party’s rights; or, (e) the recipient is legally compelled to disclose such confidential information, provided that the recipient shall give advance notice of such compelled disclosure to the discloser.

13. Vendor’s Liability Insurance.

Vendor shall maintain at all time during the term hereof general liability/errors and omissions insurance coverage in the amount of not less than One Million Dollars ($1,000,000.00) per occurrence, and worker’s compensation insurance and any other coverage for itself and its employees, as required by law of the applicable jurisdiction. Vendor shall provide Customer a certificate of insurance of such coverage upon Customer’s request, and shall notify Customer immediately of any cancellation or suspension of such policy.

14. Miscellaneous.

1. Independent Contractor. The Parties are independent contractors. Nothing in these Terms shall be construed to create any joint-venture, partnership, or entity that is inconsistent with the Parties’ status as independent contractors. Neither Party shall have any right or authority to assume or create any obligations on behalf of the other Party, express or implied. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes. Vendor retains the sole right to hire, discipline, evaluate and terminate its own employees and to set their hours, wages and terms and conditions of employment in accordance with law and Vendor’s obligations herein. All income, employment and other similar taxes required to be withheld and/or paid with respect to all Services will be timely paid by Vendor directly to the appropriate governmental agency. The employees, representatives or agents of Vendor are not entitled to and will not receive from Customer in connection with the Services, any benefits normally provided by Customer to its employees.
2. Publicity. Customer grants Vendor the right to include Customer and its standard logo as a customer in promotional material (including, but not limited to, advertising, press and similar public disclosures in any medium or format) relating to the Services at any time after 30 days following commencement of Services. Customer, in its sole discretion, can deny Vendor this right by submitting a written request via email to [email protected], requesting to be excluded from certain or all such promotional material. Confirmation of such denial (via reply email) must be received within such 30-day period for this to be initially effective. However, at any time Customer can submit a written exclusion request to such email address to have Vendor remove the Customer’s name from all such promotional material (which shall be completed within 30 days) and Vendor shall make no further reference to Customer.
3. Entire Agreement. These Terms, together with any effective Orders, and the BAA, contain the entire agreement and understanding between the Parties and supersedes any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter hereof. In the event of any conflict between the terms of these Terms and any Order, the terms of any Orders shall control.
4. Severability. If any term, provision, covenant or condition of these Terms, or the application thereof to any person, place or circumstance, shall be held to be invalid, unenforceable or void, the remainder of these Terms and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
5. Construction. The headings and captions of these Terms are provided for convenience only and are intended to have no effect in construing or interpreting these Terms. The language in all parts of these Terms shall be in all cases construed according to its fair meaning and not strictly for or against Vendor or Customer.
6. Governing Law; Venue. These Terms shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles. Subject to Section 13(g) (Mediation/Arbitration), any action or proceeding arising out of or relating to these Terms shall be subject to the exclusive jurisdiction and venue of the federal and state courts located in San Jose, Santa Clara County, California and each party hereby submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
7. Mediation/Arbitration. If a dispute arises out of or relates to these Terms or the Services, and if said dispute cannot be settled through direct discussions, the Parties agree to first endeavor to settle the dispute in an amicable manner by mediation administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to arbitration. Thereafter, any unresolved controversy or claim arising out of or relating to these Terms or the Services shall be settled by binding arbitration administered by the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. Any mediation or arbitration conducted pursuant to this paragraph shall be held in San Jose, California.
8. Attorney’s Fees. If any legal action is necessary to enforce or interpret the terms of these Terms, the prevailing Party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which such Party may be entitled. As used herein, the term “prevailing Party” means the Party who, in light of the claims, causes of action, and defenses asserted, is afforded greater relief.
9. Force Majeure. Neither Party will be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other Party or such other Party’s employees, agents or contractors, however payment of any compensation to Vendor shall not be covered hereunder.
10. No Third Party Beneficiary. These Terms has been entered into solely for the benefit of Customer, Vendor, and Vendor’s Affiliate and is not intended to create any legal, equitable or beneficial interest in any third party, or to vest in any third party any interest as to enforcement or performance.
11. Notices. Any notice, request, consent or approval required or permitted to be given under these Terms or pursuant to law shall be sufficient if in writing, and if and when given or served by personal service, by certified return receipt requested or registered mail, postage prepaid, or by Federal Express or other nationally recognized commercial courier, charges prepaid, to the other Party at its address set forth in an Order. Any such communication shall be deemed to have been given upon the earlier of personal delivery thereof, three (3) business days after having been mailed as provided above, or one (1) business day after delivery through a commercial courier, as the case may be. Notices may be given by facsimile machine capable of confirming transmission and shall be effective upon the transmission of such notice provided that a hard copy of said notice is delivered in a manner specified above (other than fax or e-mail) no later than one (1) business day after transmission by fax.
12. Assignment. Except as expressly provided in these Terms or in an Order, neither Party shall assign or delegate its rights or obligations under these Terms to any person without the other Party’s prior written consent (other than Vendor’s delegation of certain of its duties to Vendor’s Affiliates) except that either Party may assign these Terms, upon notice, to (i) a successor-in-interest or surviving entity in connection with a sale, merger or acquisition of the Party or (ii) any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with such Party, where “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Party, whether through the ownership of voting securities, by contract or otherwise.

15. COPYRIGHT AND TRADEMARK NOTICES.

INFINX is a trademark of Infinx. The names and logos of other companies, products and services mentioned in connection with the Services may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved.

16. CHANGES.

Infinx reserves the right, at its sole discretion, to modify or replace these Terms (including any Policy), in whole or in part, at any time. Infinx will use reasonable efforts to notify Customer at least 30 days in advance of the effective date of any material change. Change notices may be communicated by postings at the Sites and/or electronic mail. In any case, Customer should periodically check these Terms for changes. Continued use of any of the Services following notice of any change constitutes Customer’s acceptance of that change. These Terms may not otherwise be amended, except by a written agreement executed by Customer and Infinx.

Infinx Services Terms and Conditions, Version 1.5.1, Promulgated _______, 2021