Terms and Conditions

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE OR SIGNING THE AGREEMENT CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER’S BEHALF. PLEASE REVIEW SECTION 10 CLOSELY, AS IT CONTAINS A BINDING ARBITRATION PROCESS FOR RESOLVING DISPUTES INSTEAD OF USING THE COURT PROCESS.

This agreement is between Medcubics, Inc., (Medcubics), and the customer agreeing to these terms (Customer), and covers all services provided by Medcubics to Customer.

1) MEDCUBICS SOFTWARE SERVICES

This agreement provides Customer access and use of the Medcubics web-based subscription services, as specified on the electronic or written order between the parties (Order). Customer may purchase Medcubics (Practice Management), Medcubics Patient Intake (Mobile Application), and Medcubics Charge Capture (Mobile Application), and related services under this agreement (Service).

• Policies. Customer understands that use of the Service is also governed by Medcubics Privacy Policy, Business Associate Agreement, and Security Notice, as they may be modified over time.

2) USE OF SERVICES

a. Medcubics Responsibilities

Support. Medcubics must provide customer support for the Service as further detailed at: Support Policy.

b. Customer Responsibilities

• Access by Employees and Contractors. Customer may allow its employees and contractors to access the Service in compliance with the terms of this agreement and the applicable Order, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.
• Restrictions and Responsibilities. Customer may not (i) sell, resell, rent or lease the Service, use the Service beyond its internal operations or reverse engineer the Service, (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights), (iii) interfere with or disrupt the integrity or performance of the Service, (iv) attempt to gain unauthorized access to the Service or its related systems or networks, (v) reverse engineer the Service or remove or modify any proprietary marking or restrictive legends in the Service, (vi) use the Service in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act and any spam laws (for example, CAN SPAM), or (vii) access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes. Customer is solely responsible for Customer Information (defined below), must use commercially reasonable efforts to prevent unauthorized access to the Service, must notify Medcubics promptly of any such unauthorized access, and may use the Service only in accordance with its user guide and applicable law.
• Customer Information. All data, information, images and files entered or uploaded by Customer to the Service remains the sole property of Customer, as between Medcubics and Customer (Customer Information), subject to the other terms of this agreement. Customer grants Medcubics a non-exclusive, royalty-free license to modify, store, transmit and otherwise use the Customer Information for purposes of Medcubics performing under this agreement. Notwithstanding the foregoing, if Customer’s access to the Services is suspended for non-payment of fees in accordance with Section 3(d), Medcubics will have no obligation to provide Customer Information to Customer until Customer remedies such non-payment as provided in this agreement.
• Accuracy of Information Provided by Customer. Customer represents and warrants to Medcubics that all Customer Information, Content (defined below) and other material provided under Customer’s account, by Customer or on its behalf, is true, correct and accurate. If Customer learns that any Customer Information or Content provided to Medcubics as part of the Service is not true, correct or accurate, Customer must immediately notify Medcubics by phone and in writing of this fact, and provide the true, correct and accurate information to Medcubics. Medcubics relies on Customer representations regarding the truth, accuracy and compliance with laws of Customer Information and Content. MEDCUBICS IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF MEDCUBICS.
• Aggregation Services and De-identified Data. Medcubics may use protected health information to provide you with data aggregation services (as that term is defined by HIPAA) and to create de-identified data in accordance with 45 CFR 164.514(a)-(c) retaining any and all ownership claims related to the de-identified data it creates from protected health information. Medcubics may use, during and after this agreement, all aggregate anonymized information and de-identified data for purposes of enhancing the Service, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.

c. Additional Terms – Applicable to Medcubics Patient Intake and Charge Capture (Mobile Application)

• Content. Customers may upload or submit content, files and information to the Service (Content). As between Medcubics and Customer, all Content belongs to Customer, and Customer hereby grants Medcubics a non-exclusive irrevocable, perpetual, royalty free license to display, store, distribute, share, modify and otherwise use such Content for purposes of this agreement, including without limitation a license to syndicate the Content to third party publisher sites.
• Warranties. Customer represents and warrants to Medcubics that:
  • Any Content submitted to the Service does not violate any copyright, trade secret, privacy or other third party right,
  • It will not submit any Content that is untrue, defamatory, harmful to any person, or violates HIPAA Privacy Rules, State or Federal laws on patient privacy, and
  • All patient testimonials submitted by Customer are accurate and have the patient’s consent and comply with ethical guidelines of professional medical associations as well as state and local medical and private practice boards and governing bodies.
• Reminders and SMS Messages. Customer agrees that by registering for the Service, including any request forms or use of communications features, constitutes a request for Medcubics to send email, fax, phone call, or SMS reminders about upcoming appointments, special offers, and upcoming events. Medcubics is not responsible for any text messaging or data transmission fees. If Customer provides a cellular phone number and agrees to receive communications from Medcubics, Customer specifically authorizes Medcubics to send text messages or calls to such number. Customer represents and warrants it has the authority to grant such authorization. Customer is not required to consent to receive text messages or calls as a condition of using the Service and may opt out of such messages through the Services.
• Reviews & Opinions. Medcubics does not endorse, validate as accurate, or necessarily agree with any of the reviews, links and user generated content from users or Customers on the Service. Medcubics reserves the right to refuse to publish any patient review provided by Customer.
  • The Service may attempt to send automated or human-based alerts when reviews are provided on third party websites, but Medcubics does not guarantee the accuracy, completeness or timeliness of such alerts.
• Advertisements. Medcubics reserves the right to place advertisements or messages from third parties on free claimed listings web pages as well as free versions of the Service. Such advertisements or messages from third parties may be visible to users as well as Customers.

3) PAYMENT TERMS

a. Payment

Customer must pay all fees as specified on the Order and related services as incurred as specified on this the Pricing Policy page. Unless otherwise stated in the Order, invoiced charges are due upon receipt. Customer is responsible for providing complete and accurate billing and contact information to Medcubics and notifying Medcubics of any changes to such information.

b. Credit Card and ACH

Customer must pay all fees (US$) with a credit card or via ACH upon receipt of an invoice from Medcubics. If the credit card or ACH is not valid or the payment is not otherwise made, Customer must pay the amount owed upon receipt of an invoice. Customer hereby authorizes Medcubics to charge such credit card or withdraw from Customer’s bank account via ACH for all purchased Services and related services, and any renewals.

c. Taxes

Medcubics fees do not include any taxes, levies or other similar governmental assessments (Taxes). Customer is responsible for the payment of all Taxes associated with its purchases under this agreement. Medcubics is solely responsible for taxes assessable against Medcubics based on its income, property and employees.

d. Suspension of Service for Non-Payment

Medcubics may suspend or terminate the Service, or both, if Customer has not paid amounts owed to Medcubics when due. In advance of any suspension or termination, Medcubics will make commercially reasonable efforts to send a minimum 5-day notice of payment default to Customer prior to suspension or termination (Customer is responsible updating its contact information with Medcubics and notifying Medcubics of any changes to such information).

e. Fee Changes

All fees may be changed with 30 days’ advance email notice to Customer. Customer is responsible for keeping its updated email address on file with Medcubics

f. Postage Fees

Since postage rate increases are publicly announced by the United States Postal Service, Medcubics will automatically apply the rate increase to all services impacted by the change without advance notice.

4) WARRANTY/SERVICE LEVEL AGREEMENT/DISCLAIMERS

a. Availability

Medcubics will make commercially reasonable efforts to maintain uptime of 99%.

b. Mutual Compliance with Laws

Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this agreement.

c. NO MEDICAL ADVICE PROVIDED BY MEDCUBICS

The Service do not provide medical advice, provide medical or diagnostic services, or prescribe medication. Use of the Service is not a substitute for the professional judgment of health care providers in diagnosing and treating patients. Customer agrees that it is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable patients’ medical and medication history and allergies), obtaining patient’s consent to use the Service (including without limitation the Patient Portal), and for all of its decisions or actions with respect to the medical care, treatment, and well-being of its patients, including without limitation, all of Customer’s acts or omissions. Any use or reliance by Customer upon the Service will not diminish that responsibility. Customer assumes all risks associated with Customer’s clinical use of the Service for the treatment of patients. Neither Medcubics nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer, a patient, other person, or tangible property arising from any use of the Services.

d. CUSTOMER’S COMPLIANCE WITH MEDICAL RETENTION LAWS AND PATIENT RECORDS ACCESS

Customer is responsible for understanding and complying with all state and federal laws related to retention of medical records, patient access to information and patient authorization to release data. Customer agrees that it will obtain any necessary patient consent prior to using the Service (including without limitation the Patient Portal) and will apply settings to exclude information from availability in the Patient Portal as necessary to comply with state or federal law.

e. DISCLAIMERS

MEDCUBICS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE MEDCUBICS TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, MEDCUBICS DOES NOT GUARANTY THAT THE SERVICE CANNOT BE COMPROMISED. MEDCUBICS DISCLAIMS ANY WARRANTY REGARDING ANY PERCENTAGE OF COLLECTION OF CLAIMS FOR CUSTOMER.

5) MUTUAL CONFIDENTIALITY

a. Definition of Confidential Information

Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Medcubics’s Confidential Information includes without limitation the non-public portions of the Service.

b. Protection of Confidential Information

The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors and clients (as the case may be) who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement. The Recipient may disclose Confidential Information (i) to the extent required by law or legal process; (ii) to its legal or financial advisors, provided that such advisors are bound by a duty of confidentiality that includes use and disclosure restrictions; and (iii) as required under applicable securities regulations. In addition, each Party may disclose the terms and conditions of this Agreement on a confidential basis to current and prospective investors, acquirers and lenders and their respective legal and financial advisors in connection with due diligence activities.

c. Exclusions

Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Discloser; was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; is received from a third party without breach of any obligation owed to Discloser; or was independently developed by the Recipient without use or access to the Confidential Information.

6) PROPRIETARY RIGHTS

a. Reservation of Rights by Medcubics

The software, workflow processes, user interface, designs, know-how and other technologies provided by Medcubics as part of the Service are the proprietary property of Medcubics and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Medcubics. Medcubics reserves all rights unless expressly granted in this agreement.

b. AMA Content

The AMA Content is licensed to Customer as follows: Medcubics grants Customer a non-exclusive, license for the duration of the Service to use such materials for Customer’s internal use solely with the Service, with the right to make additional copies of the material for such duration and purpose (Licensed Documentation). AMA Content means the coding work of nomenclature and codes for reporting of healthcare services from the print publication Current Procedural Terminology, Fourth Edition and the data file of Current Procedural Terminology (CPT) published by the American Medical Association in the English language as used in the United States.

• AMA Restrictions: Customer may not use outside the United States, publish, distribute or create any derivate work (including without limitation translation), transfer, sell, lease, license or otherwise make available the AMA Content, or a portion or copy of such content, except as expressly provided in this agreement. This sublicense is limited to one user for each active provider associated with Customer’s account. Customer is responsible for seeking additional user licenses directly from the American Medical Association if it requires more than one user license per active provider. CPT is a copyright and a registered trademark, of the American Medical Association.

7) LIMITS ON LIABILITY.

a. No Indirect Damage. Medcubics is not liable for any indirect, special, or consequential damages (including without limitation, costs of delay, loss of data or information, lost profits or revenues or loss of anticipated cost savings) arising under or related to this agreement, even if advised of the possibility of such loss or damage.

b. Limit. Medcubics total liability for all damages arising under or related to this agreement (in contract, tort or otherwise) does not exceed the actual amount paid by Customer within the 6-month period preceding the event which gave rise to the claim.

8) TERM, TERMINATION, AND RETURN OF DATA

a. Term

The applicable Services will continue for the duration specified in the Order and will be automatically extended for additional consecutive terms unless either party provides notice of termination of no less than 10 days. This agreement continues until all Orders and Services are terminated.

b.Termination for Material Breach

Either party may terminate this agreement and the applicable Orders if the other party material breaches any term of the agreement or an Order and does not cure the breach within 30 days of written receipt of notice of breach. Additional terms are in the Term, Termination and Return of Data Policy FAQ page.

c. Return of Data

Medcubics will have no obligation to provide Customer Information to Customer upon termination of this agreement. Notwithstanding the foregoing, Medcubics may retain Customer Information for 60 days from such termination and Medcubics may provide Customer access to such information upon Customer’s request. For additional information, please see the Term, Termination and Return of Data Policy FAQ page.

d. Customer Actions upon Termination

Upon termination, Customer must pay any unpaid fees and destroy all Medcubics property in Customer’s possession. Customer, upon Medcubics request, will confirm in writing that it has complied with this requirement.

e. Suspension or Termination of Service for Violation of Law or the Agreement

Medcubics may immediately suspend or terminate the Service and remove applicable Customer Information or Content if it in good faith believes that, as part of using the Service, Customer may have violated a law or any term of this agreement. Medcubics may try to contact Customer in advance, but it is not required to do so.

9) INDEMNITY

a. General Indemnity

To the extent allowed by applicable law, Customer must indemnify, defend, and hold harmless Medcubics against all third-party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:

• the use of the Service by Customer,
• Customer’s breach of any term in this agreement,
• any unauthorized use, access or distribution of the Service by Customer, or
• violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.

10) GOVERNING LAW AND ARBITRATION

a. Governing Law

This agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.

b. General Arbitration Process

Any dispute or claim that may arise between the parties relating in any way to or arising out of this agreement, Customer’s use of or access to the Services (Claim), must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial rules of the American Arbitration Association in New York, New York. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.

c. Optional Arbitration for Claims Less than $10,000

Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may choose to resolve the dispute in a more cost effective manner through binding non-appearance-based arbitration. If a party elects’ arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. Such ADR process shall take place in New York, New York. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.

d. Enforcement

Notwithstanding Sections 10(b) and 10(c), Medcubics may enforce its rights and obligations under these Terms in any court of competent jurisdiction.

e. Equitable Relief

Notwithstanding anything above, Medcubics may seek and obtain injunctive and equitable relief in any court of competent jurisdiction without restriction or required process in this agreement.

f. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS

EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.

11) OTHER TERMS

a. No Solicit or Hire Clause

Customer acknowledges that Medcubics invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under this agreement. Customer agrees that for the full term of this agreement, and for 2 years after its termination Customer will not solicit or employ in any capacity, whether as a direct employee, independent contractor or as a representative of another company providing similar services to Customer as Medcubics, any person employed by Medcubics at any time during the term of this agreement whose duties involve providing the Services, whether for Customer or other Medcubics customers.

b. Consent to Electronic Notice, Communications and Transactions

For purposes of messages and notices about the Service (including without limitation, collections and payments issues), Medcubics may send email notices to the email address associated with Customer’s account or provide in service notifications.  For certain notices (e.g., notices regarding termination or material breaches), Medcubics may send notices to the postal address provided by Customer. Medcubics has no liability associated with Customer’s failure to maintain accurate contact information within the Service or its failure to review any emails or in service notices. Customer will have the ability to enter into agreements, authorizations, consents and applications; make referrals; order lab tests; prescribe medications; or engage in others transactions electronically. CUSTOMER AGREES THAT ITS ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE ITS AGREEMENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS, AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. Customer represents and warrants that it has the authority to take such actions.

c. Entire Agreement and Changes

This agreement and the Order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation promise or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless signed by both parties. Notwithstanding the foregoing, Medcubics may modify this agreement by posting modified Terms of Service on the Medcubics website and electronically notifying Customer of the changes thirty (30) days prior to the effective date of such changes. Customer agrees that by continuing to use the Service after posting of the modified Terms of Service, Customer agrees to be bound by the changes.

d. Feedback

If Customer provides feedback or suggestions about the Service, then Medcubics (and those it allows to use its technology) may use such information without obligation to Customer.

e. Beta Features

If Customer is invited to access any beta features of the Service or a Customer accesses any beta features of the Service, Customer acknowledges that: (a) such features have not been made commercially available by Medcubics; (b) such features may not operate properly, be in final form or fully functional; (c) such features may contain errors, design flaws or other problems; (d) it may not be possible to make such features fully functional; (e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (f) such features may change and may not become generally available; and (g) Medcubics is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service. These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data.

f. No Assignment

Neither party may assign or transfer this agreement or an Order to a third party, except that this agreement with all Orders may be assigned (without the consent) as part of a merger, or sale of all or substantially all of the business or assets, of a party.

g. Electronic Notice

For purposes of messages and notices about the Service (including without limitation, collections and payments issues), Medcubics may send email notices to the email addresses associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), Medcubics may send notices to the postal address provided by Customer. Medcubics has no liability associated with Customer’s failure to maintain accurate contact information within the Service or its failure to review any emails or in-service notices.

h. Independent Contractors and Enforceability

The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.

i. No Additional Terms

Medcubics rejects additional or conflicting terms of a form-purchasing document. If there is an inconsistency between this agreement and an Order, the Order prevails.

j. Survival of Terms

All terms survive termination of this agreement that by their nature survive for a party to assert its rights and receive the protections of this agreement. The Convention on Contracts for the International Sale of Goods does not apply.

k. Customer Name

Medcubics may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Medcubics, which use must be in accordance with Customer’s trademark guidelines and policies, if any, provided to Medcubics.