GENERAL TERMS AND CONDITIONS
These General Terms and Conditions are incorporated into and made part of the Agreement (as defined in the Order Form executed by the parties). Terms not defined herein shall have the definitions set forth in the Order Form or the applicable Service-Specific Terms and Conditions.
1. Definitions
1.1. “Affiliate” means any other person or entity directly or indirectly controlling, controlled by, or under common control with such specified party including the power to, directly or indirectly, direct or cause the direction of management or policies of a person or entity, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.
1.2. “Applicable Law” means: (a) any Applicable Privacy Law; and (b) any other laws, statutes, regulations, ordinances, rules, codes, and other requirements of any governmental authority that apply to Customer’s use of or Prompt’s provision of the Services, in any jurisdiction where the Services are accessed or used.
1.3. “Applicable Privacy Law” means any law, statute, regulation, ordinance, rule, code, or other requirement of any governmental authority related to data protection, privacy, patient medical records, spamming, and consumer protection (including, but not limited to, HIPAA) in any jurisdiction where the Services are accessed or used.
1.4. “Authorized Service Provider” means a service provider which has been authorized by Customer to provide therapy or other clinical services for or on behalf of Customer.
1.5. “BAA” means the business associate agreement referenced in the Order Form or otherwise agreed to in writing by the parties, as required under HIPAA.
1.6. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, whether or not marked or otherwise identified as “confidential” (or words of similar import), including, but not limited to, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, the Services, Documentation, and Implementation Deliverables are Prompt’s Confidential Information, and the Customer Data and Customer Property are Customer’s Confidential Information.
1.7. “CORE Tier 1 Provider” means any Provider who is not a Therapist Assistant who conducts eighty (80) or more visits per month.
1.8. “CORE Tier 2 Provider” means: (a) any Therapist Assistant who conducts ten (10) or more Visits per month; or (b) any other Provider who conducts between ten (10) and seventy-nine (79) Visits per month.
1.9. “CORE Tier 3 Provider” means any Provider who conducts nine (9) or fewer Visits per month.
1.10. “Customer Property” means any Customer-specific technology or Customer-specific business processes that are specifically designated as Customer-owned property in a written agreement signed by the parties.
1.11. “End Users” means Customer’s and its Affiliates’ and Authorized Service Providers’ respective employees, independent contractors, subcontractors, or other agents and representatives, including, but not limited to, Providers, Therapist Assistants, Trainees, and Non-Providers, who are authorized by Customer to access the Services on Customer’s behalf, provided, that in no event shall Customer authorize any employee, contractor, agent, or representative of a competitor of Prompt to access and use the Services.
1.12. “Estimated Annual Payment” means, for a particular Minimum Term Service, the Estimated Monthly Fees set forth in the Order Form or otherwise agreed to in writing by the Parties, multiplied by twelve (12).
1.13. “Growth Tier 1 Provider” means any Provider who is not a Therapist Assistant who conducts eighty (80) or more Visits per month.
1.14. “Growth Tier 2 Provider” means: (a) any Therapist Assistant who conducts thirty-five (35) or more Visits per month; or (b) any other Provider who conducts between thirty-five (35) and seventy-nine (79) Visits per month.
1.15. “Growth Tier 3 Provider” means any Provider who conducts thirty-four (34) or fewer Visits per month.
1.16. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and published at 45 C.F.R. Parts 160 and 164.
1.17. “Minimum Term Service” means a Service where, other than due to an uncured breach pursuant to section 16.2(a), Customer does not have a termination right prior to the end of the Initial Term or any subsequent Renewal Term. Minimum Term Services include CORE, OnusOne, PT Wired, Sidekick, Practice Intel, and any other Service designated as such by Prompt.
1.18. “Non-Provider” means any End User who is not providing clinical services to patients (for example, but subject to the foregoing, the business/clinic owner, front desk personnel, or other business/administrative support staff).
1.19. “PHI” shall have the definition set forth in the BAA.
1.20. “Platform” means Prompt’s proprietary platform made available over the internet through which Customer and its End Users can access and use the Services.
1.21. “Process” means to take any action or perform any operation or set of operations that the Services are now or hereafter capable of taking or performing on any documents, graphics, materials, or other data, information, and other content, including, without limitation, to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise generate, provide, or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
1.22. “Provider” means any End User who provides clinical services to patients.
1.23. “Services” collectively means the Prompt Services, Implementation Services, Beta Services, and any Third-Party Services provided to Customer by Prompt.
1.24. “Service-Specific Terms and Conditions” means those additional terms and conditions governing the use of certain Services.
1.25. “Therapist Assistant” means a physical therapist assistant, occupational therapist assistant, or speech language pathologist assistant.
1.26. “Territory” means the United States.
1.27. “Technician” means a physical therapy technician who works under the supervision of a physical therapist.
1.28. “Trainee” means any student or post-professional clinical resident or fellow.
1.29. “Visit” means any checked-in patient or client encounter held for the purpose of such patient or client to receive care or advice from a Provider.
2. Services
2.1. Prompt Services. Subject to Customer’s compliance with the terms of the Agreement, including without limitation, any applicable Documentation, Prompt grants to Customer a non-exclusive, non-sublicensable, non-transferable license for Customer and its End Users to access and use, solely in the Territory and solely for Customer’s internal business purposes, the following if included in an Order Form or subsequently activated by Customer through the Platform, each in accordance with the Agreement: (a) Prompt’s electronic medical record software-as-a-service offering (“CORE”); (b) Prompt’s generative or other artificial intelligence (“AI”) features contained in any Prompt Services (“Prompt AI”); and (c) any additional software-as-a-service offering(s) made available by Prompt, including without limitation, any additional Prompt Services Customer licenses from Prompt as of the Go-Live Date (“Additional Prompt Services Enabled at Go-Live”) and/or any other optional Prompt Services Customer licenses from Prompt after the Go-Live Date (collectively (a), (b), and (c) together are deemed to be the “Prompt Services”). For clarity, and notwithstanding the foregoing, the term “Prompt Services” does not include Third-Party Services. Any features not listed as a CORE feature in the Sales Proposal Prompt provided to Customer prior to execution of the Agreement shall not be included in the CORE fees and may be subject to an additional fee. Customer will be solely responsible and liable for any breach of the Agreement by End Users or any other third party using the Services through Customer’s account, whether or not such use was authorized by Customer. Prompt shall have the right to disable or terminate access by any End User that Prompt determines in its sole discretion does not meet Prompt’s information security standards and/or comply with all obligations regarding the use of the Services.
2.2. Implementation Services. Prompt will use commercially reasonable efforts to provide Customer during the period from the Effective Date to the Go-Live Date (the “Implementation Period”), the initial training, enrollment support, and other initial onboarding and basic implementation support services explicitly described in the Agreement, as well as access to related Training Materials and other Implementation Deliverables, as applicable (collectively, the “Implementation Services”).
2.2.1. Training Materials. During the Implementation Period, Prompt will provide Customer access to Prompt’s Training Center containing virtual training modules and a checklist of tasks that Customer is required to complete during the Implementation Period. All electronic and hard copy versions of the Training Materials are provided for Customer’s internal training purposes only. Customer may not use the Training Materials to replicate or attempt to perform the training or to develop or attempt to develop any of the products described in such Training Materials. Customer may not record, film, stream, or otherwise capture any performance or aspect of Prompt’s training or other Implementation Services. Training Materials are not subject to any maintenance, support, or updates.
2.2.2. Onsite Training. If the parties agree to onsite training during the Implementation Period, Customer is responsible for providing appropriate training facilities for the training delivery, including without limitation, Internet connectivity, projector equipment, computers, and other reasonable classroom amenities, which shall be suitable for each End User to access the Services. Customer is responsible for all costs and expenses incurred by Prompt for travel, meals, and lodging to provide the onsite training in addition to any applicable Implementation & Training Fees set forth in the Order Form or otherwise agreed to in writing by the parties.
2.2.3. EDI/ERA Enrollments. During the Implementation Period, Prompt will assist Customer with the completion of electronic data interchange (“EDI”) and electronic remittance advice (“ERA”) enrollments (collectively, “Enrollments”). Prompt may, at its sole discretion, assist Customer by pre-filling forms and filling certain forms on behalf of Customer. Prompt is not responsible for inaccurate information, or any delays caused, in whole or in part, by any failure of Customer to complete tasks or provide accurate information. Prompt is not responsible for monitoring the success or failure of any Enrollment. Customer must notify Prompt if an Enrollment is unsuccessful, and Prompt may, at its sole discretion, attempt to assist Customer. Customer must notify Prompt in writing by sending an email to era@promptemr.com of (a) any issues regarding or in relation to any unsuccessful Enrollments and (b) all successful Enrollments. Prompt is not responsible for any delays in cash flow or business proceedings as it pertains to Enrollments.
2.2.4. Training Cancellation. Customer may reschedule or cancel any previously scheduled training registration without penalty up to ten (10) business days prior to the scheduled start date of such training. Prompt will charge Customer the full course price for any training registrations that are cancelled or rescheduled within ten (10) business days of the scheduled start date. Notwithstanding the foregoing, Customer shall remain liable for reimbursement of all costs and expenses incurred by Prompt prior to cancellation which cannot be recouped by Prompt.
2.3. Beta Services. Prompt may provide Customer with the option to participate in early access programs with Prompt whereby Customer may be permitted to use alpha, beta, or pre-release services, products, features, and documentation (“Beta Services”). Beta Services will be identified in the Prompt Platform or otherwise communicated to Customer. Notwithstanding anything to the contrary contained in the Agreement, Beta Services are not generally available and may contain bugs, errors, or defects. Prompt reserves the right to change features of Beta Services from time to time, including without limitation, moving features from Beta Services to other Services. Prompt may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Prompt will use reasonable efforts to notify Customer (whether through the Platform or otherwise) if a service, product, feature, or documentation that was previously identified as a Beta Service is no longer deemed to be a Beta Service.
2.4. Third-Party Services. Prompt may provide Customer access to certain third-party products and services provided with or incorporated into the Services, whether enabled as of or after the Go-Live Date (“Third-Party Services”). Third-Party Services may be subject to additional terms and conditions of Prompt and/or the applicable Third-Party Service provider. If Customer does not agree to abide by the applicable terms for any such Third-Party Services, then Customer is prohibited from installing, accessing, or using such Third-Party Services.
2.5. Documentation. Prompt grants to Customer a non-exclusive, non-sublicensable, non-transferable license for its End Users to use: (a) Prompt’s then-current documentation made available by Prompt to Customer regarding the Services, and (b) any training and other implementation documents or other materials provided as part of the Implementation Deliverables (“Training Materials”), if any, provided to Customer in connection with the Services (in each case of (a) and (b), whether in electronic or hard copy form, collectively, “Documentation”), during the Term, solely for Customer’s and its End Users’ internal use in connection with its and their use of the Services.
2.6. Non-Exclusive Provider. Provided that Prompt does not use any Customer Property except as permitted herein or as otherwise authorized by Customer, nothing in the Agreement shall be construed as precluding or limiting in any way the right of Prompt to provide consulting, development, software-as-a-service offerings, or any other services or deliverables of any kind to any other individual or entity (including, without limitation, providing other services or deliverables that are the same as or similar to any Services and/or deliverables hereunder).
2.7. Discontinuation of Services. Prompt does not guarantee that any Services will remain available to Customer for use or renewal, and any Services may be discontinued at Prompt’s sole discretion. If Services are discontinued by Prompt, Customer will receive a prorated credit for any prepaid fees based on the effective daily rate of the most recent fees paid by Customer for the subscription multiplied by the number of days remaining in the subscription after the last date the discontinued Services are available. Prompt will provide Customer thirty (30) days’ advance written notice of any discontinuation of Services.
2.8. Additional Limitations. Customer acknowledges and agrees that: (a) certain outputs generated by the Services are not generated by a human (including, without limitation, as further described in Section 8 (Data Rights)), and it is Customer’s obligation to have qualified personnel of Customer review for accuracy all data, information, and other content provided on or through the Services; (b) the Services are intended for use by physical therapists, occupational therapists, speech language pathologists, chiropractors, massage therapists, physical trainers, and assistants of the foregoing providers (collectively “intended providers”); (c) the Services are not designed for documenting and billing encounters by physicians, advanced practice providers, audiologists, or any other healthcare professionals other than the intended providers; and (d) the Services do not constitute “certified EHR technology,” as that term is defined at 42 USC Section 300jj.
2.9. Activation by Customer. Prompt may allow Customer to activate, increase usage of, and/or potentially terminate, certain Services through the Platform. Any Services activated by Customer through the Platform or otherwise in writing by the parties will be subject to the terms of the Agreement and will continue for the Term set forth in the Order Form unless otherwise agreed to in writing by the parties or earlier terminated in accordance with the Agreement.
3. Customer Obligations/Restrictions/Limitations.
3.1. Customer and its End Users may not use the Services, Documentation, or Implementation Deliverables for any purposes beyond the scope of the access granted in the Agreement.
3.2. Customer’s use of the Services, Documentation, and Implementation Deliverables is subject to the terms of the Agreement, along with all applicable Documentation, including, without limitation, with requirements governing Customer’s use of the Platform as set forth in the Documentation.
3.3. Prior to the applicable Go-Live Date, Customer will fulfill all obligations communicated in writing by Prompt, which includes, without limitation, requiring all Customer staff to complete all Prompt University training.
3.4. Customer shall not at any time, directly or indirectly, and shall not permit any End User or other third party to: (a) permit any third party other than an End User to access or use the Services, Documentation, or Implementation Deliverables; (b) access or use the Services, Documentation, or Implementation Deliverables by any means (including, without limitation, by use of robots or other automated means) other than solely via the means provided by Prompt, unless and solely to the extent expressly approved by Prompt in writing; (c) decompile, disassemble, reverse engineer, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, Documentation, or Implementation Deliverables in whole or in part; (d) copy, modify, or create derivative works of the Services, Documentation or Implementation Deliverables, in whole or in part; (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, Documentation, or Implementation Deliverables except as expressly permitted in the Agreement; (f) use any Services, Documentation, or Implementation Deliverables or allow the transfer, transmission, export, or re-export of any Services, Documentation, or Implementation Deliverables, or any portion thereof, in violation of Applicable Law; (g) remove any proprietary notices, warning notices, or disclaimers from any part of the Services, Documentation, or Implementation Deliverables, including without limitation, as included on or embedded in any screen displays, or with any other products or materials provided by Prompt hereunder; or (h) use the Services, Documentation, or Implementation Deliverables in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law.
3.5. Under no circumstances will Prompt be liable or responsible for any use, or any results obtained by the use, of the Services, Documentation, or Implementation Deliverables in conjunction with any products, services, software, or hardware that are not provided by Prompt and all such use will be at Customer’s sole risk and liability.
3.6. To the extent Customer is party to any contracts directly with third-party vendors (whether signed prior to, or after, the Effective Date), it is Customer’s obligation to comply with any applicable terms, including those related to termination, and any resulting fees or penalties.
3.7. End User login credentials are for Customer’s designated End Users only and are assigned on an individual End User basis. Login credentials may not be shared among multiple individuals, and Customer will not, and will not allow any End User to, share login credentials in violation of the Agreement.
3.8. Customer acknowledges that the use of robots or similar automated tools is generally not permitted under the terms of the Agreement unless expressly approved by Prompt in writing, and any significant utilization (as determined by Prompt in its reasonable discretion) of the Services resulting from the use of robots or similar automated tools, regardless of whether Prompt has approved such use, may result in increased utilization-based fees consistent with the pricing terms in effect at such time under the Agreement, as determined by Prompt in its sole discretion.
4. Availability. Prompt will use commercially reasonable efforts to make the Prompt Services (excluding Prompt AI, Beta Services, or any Prompt Services provided during a Trial Period) available for remote access 99% of the time for each month of the Term, excluding Excused Outages (“Availability”). Downtime as a result of any causes beyond the control of Prompt, including without limitation, such downtime caused or contributed to by any of the events or issues noted below, are excluded from Availability calculations (collectively, “Excused Outages”):
4.1. Customer’s environment affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment; Customer’s firewall software, hardware, or security settings; Customer’s configuration of anti-virus software or anti-spyware or malware software; or operator error of Customer;
4.1.1. Any third-party software, hardware, or telecommunication failures, including without limitation, Internet slow-downs or failures;
4.1.2. issues related to third party domain name system (DNS) errors or failures;
4.1.3. force majeure events;
4.1.4. scheduled maintenance of the Services, conducted on a regular basis, of which Prompt will use commercially reasonable efforts to give Customer a minimum of forty-eight (48) hours advanced notice by email or other pre-approved notification; and
4.1.5. emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Customer may not receive advanced notice.
If Prompt fails to achieve the Availability requirement, Prompt will use commercially reasonable efforts to correct the interruption as promptly as practicable. If Prompt fails to achieve the Availability requirement in three (3) consecutive months during the applicable Term for a certain Prompt Service, Customer is required to notify Prompt of such, and, upon receipt of such notice and confirmation by Prompt, Prompt will provide Customer a credit in the amount of five percent (5%) of the Recurring Monthly Fees paid by Customer for the impacted Prompt Service(s) during the three- (3-) month period in which Prompt failed to meet the Availability requirement. The credit will constitute Customer’s sole and exclusive remedy and Prompt’s sole and exclusive liability for failure to achieve the Availability requirement.
5. Information Security. Prompt will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and Customer Data consistent with any law applicable to the Services. Customer is solely responsible for maintaining endpoint security software on its systems and hardware, and Prompt will have no liability for failures that result from Customer’s breach of such obligation.
6.1. During the Term, Prompt will provide Customer with reasonable support during Prompt’s then-current business hours. Prompt will provide customer service updates and bug fixes that Prompt in its sole discretion makes generally available to its other similarly situated customers at no charge. However, Customer is not entitled to receive updates or new releases that include new or different functionality for which Prompt imposes an additional charge to its customers. Such new or different functionality may be purchased by Customer, in its discretion, at Prompt’s then-current pricing. Prompt will use commercially reasonable efforts to correct reproducible failures of the Services to perform in substantial accordance with their then-current Documentation.
6.2. Customer shall comply with any Prompt-provided Documentation and directions, including, but not limited to: any instructions interacting with Prompt when requesting and/or receiving support; working with Customer’s assigned Client Success Manager; reviewing, acknowledging, and fulfilling Customer’s obligations; discussing questions about the Services and/or Customer’s obligations under the Agreement; and providing any Prompt-requested documentation, information, data, and/or materials in a timely manner. Customer and its End Users will not act in an abusive or disrespectful manner when interacting with Prompt’s support personnel.
7. Proprietary Rights.
7.1. Generally. Customer acknowledges and agrees that: (a) all Services, Documentation, and Tools (defined herein), are protected by the intellectual property rights of Prompt and its vendors and licensors; and (b) Prompt owns all right, title, and interest in and to: (i) the Services, Documentation, and Tools; (ii) all deliverables, work product, and results provided in connection with the Services (including without limitation, all Documentation and other documents, materials, work product, and deliverables created or provided by or on behalf of Prompt in connection with Implementation Services, but excluding any Customer Property (collectively, “Implementation Deliverables”)); and (iii) any improvements, enhancements, or modifications made to the Services, Documentation, and Tools, whether in connection with or independently of the Agreement; in each case of the foregoing ((i), (ii), and (iii)), together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services or any other of the foregoing. With respect to Third-Party Services and third-party software incorporated in the Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to such Third-Party Services and third-party software.
7.2. Tools. Notwithstanding any other provision of the Agreement, nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, materials, know-how, techniques, and expertise (“Tools”) used by Prompt to develop or provide the Services or Implementation Deliverables under the Agreement, and to the extent such Tools are delivered with or as part of such Implementation Deliverables, they are licensed, not sold or assigned, to Customer, on the same terms and subject to the same conditions as the Implementation Deliverables under the Agreement. All Tools are proprietary to Prompt or its licensors and are Prompt’s Confidential Information.
7.3. Customer Property. Customer shall retain ownership of all rights, title, and interest in and to any Customer Property. Customer hereby grants and agrees to grant Prompt the right to use Customer Property solely for the purpose of providing the Implementation Services or other Services to Customer under the Agreement.
8.1. Customer Data. Customer hereby irrevocably grants all rights and permissions in or relating to the documents, information, graphics, data, materials, and other content, in any form or medium, that Customer or End Users input into the Services or that are collected, downloaded, or otherwise received, directly or indirectly, from Customer or an End User by or through the Services or that are derived from the Processing of such documents, information, graphics, data, materials, and other content by or through the Services (collectively, “Customer Data”), as are necessary or useful to Prompt to enforce the Agreement and exercise Prompt’s rights and perform Prompt’s obligations hereunder (including, but not limited to, Processing Customer Data to provide the Services, and developing, modifying, improving, supporting, customizing, and operating the Services and any associated software, products, and technology), and otherwise as required or authorized by Applicable Privacy Law. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide Customer Data to Prompt for use as contemplated under the Agreement. Except for the rights and licenses expressly granted under the Agreement, Customer shall retain ownership of all rights, title, and interest in and to any Customer Data, and nothing contained in the Agreement will be construed as granting Prompt any right, title, or interest in the Customer Data.
8.2. Product Development Data; Aggregated Data. Without limiting the generality of the foregoing, Prompt may derive information, data, and content from Prompt’s Processing (including, but not limited to, as such information, data, and content may be Processed by or through the Services) of such Customer Data for general product research and development purposes, including, but not limited to, creating new products, services, or components not specific to a given Service or to Customer (such purposes, “Product Development”, and the information, data, and content derived therefrom, “Product Development Data”). Customer acknowledges and agrees that Prompt shall retain ownership of all rights, title, and interest in and to any: (a) statistical and other aggregated data derived from Customer’s use of the Services (the “Aggregated Data”); and (b) Product Development Data, excluding any information identifying Customer or any End User or other identifiable individual or PHI, or which otherwise reveal Customer Confidential Information except as otherwise expressly permitted under the Agreement or in accordance with Applicable Privacy Law, provided, that all Product Development Data and Aggregated Data shall be de-identified and aggregated in accordance with Applicable Privacy Law. For clarity, Customer Data does not include Aggregated Data or Product Development Data.
8.3. AI Content. Customer agrees that Prompt may, and instructs Prompt to, Process Customer Data and other inputs provided by Customer and End Users for Processing by Prompt AI (collectively, “Input”) and generate output based on the Input (“Output”) in connection with Prompt AI (any such Input and/or Output, collectively, “AI Content”) and associated Services, to perform the Services for the benefit of Customer, to maintain and provide Prompt AI, to train the machine learning models used to provide Prompt AI, and to develop and improve Prompt technologies. Customer will ensure that all use of Prompt AI and AI Content will not: (a) violate the terms of the Agreement or Applicable Privacy Law; or (b) infringe, violate, or misappropriate any of Prompt’s rights or the rights of any third party. Customer acknowledges that due to the nature of AI and machine learning and the technology powering Prompt AI features, Output may not be unique to Customer, and Prompt AI may generate for Prompt or a third party output that is the same as or similar to Output.
8.4. Other Uses of AI Content; Restrictions. Neither Customer nor any End User may, or allow third parties to, use any Output or any other content, data, or other information received or derived from Prompt AI to: (a) directly or indirectly create, train, test, or otherwise improve any machine learning algorithms or artificial intelligence systems; (b) develop foundation models or other large scale models that compete with Prompt or Prompt AI or other features of the Services; (c) mislead any person that Output from Prompt AI was solely human generated; or (d) violate Applicable Law or any Documentation, Services usage guidelines, or other parameters or instructions of Prompt.
8.5. Platform Content. The parties expressly acknowledge and agree that any and all audio and video recordings, transcripts, and other content generated by the Services (collectively, the “Platform Content”) shall not be deemed, treated, or classified as part of any patient’s medical record under any Applicable Privacy Law, nor shall Customer have any right to access or receive copies of the Platform Content.
9. Feedback. Customer acknowledges and agrees that Prompt shall own all right, title, and interest in and to any suggestions, comments or other feedback (collectively, “Feedback”) provided by Customer or any End User to Prompt with respect to its Services and other products and services. Customer agrees that providing any Feedback is voluntary and not a requirement pursuant to the Agreement.
10.1. Fees. Customer will pay Prompt the fees associated with the Services as described in the Order Form, the Platform, or as otherwise agreed to in writing by the parties. For clarity, and not in limitation of the foregoing, Customer may have the ability to add certain Services, and/or increase its utilization of certain Services, through the Platform, without entering into an additional Order Form. Customer is obligated to pay for such Services whether Customer enters into an Order Form or adds, or increases, Services, through the Platform or another writing executed by the parties. Except as expressly set forth in the Agreement, all fees are non-refundable. Customer’s Non-Providers, Trainees, and Technicians, are entitled to access the Services at no cost.
10.2. Price Increases. Fees for Prompt Services will remain the same for the Initial Term. After the Initial Term, fees for the Prompt Services shall automatically be subject to an adjustment equal to five percent (5%) for each full year included in the Initial Term (for example, a two (2) year Initial Term permits a ten percent (10%) adjustment; a three (3) year Initial Term permits a fifteen percent (15%) adjustment, and so on). Following such adjustment, the fees may be increased by up to five percent (5%) annually, effective on each anniversary of the end of the Initial Term. Prompt may increase prices for Third-Party Services at any time upon sixty (60) days’ prior written notice to Customer.
10.3. Payment. Unless otherwise stated in the Agreement, Customer shall make all payments to Prompt on a monthly basis with all payments being due immediately upon receipt of the applicable invoice from Prompt. Such payment amounts will be based upon the rates set forth in the Order Form, the Platform, or as otherwise agreed to in writing by the parties, and which may change from month-to-month based on Customer’s utilization of the Services as described in the Agreement. Except for the initial payment, all payments will be automatically processed and charged to the ACH information provided in the ACH Authorization or to the valid credit card provided by Customer. Customer will be charged a Fifty Dollar ($50) processing fee per check if paying by physical check. Credit card payments will be subject to a processing charge of three percent (3%).
10.4. Monthly Charges Based on Utilization. For utilization-based fees, Customer will be charged based on Customer’s actual utilization of the Services, subject to the Annual True-Up set forth in Section 10.5. Prompt expressly reserves the right to audit Customer’s utilization and adjust billing for the immediately prior month based on utilization as necessary, in its sole and absolute discretion. Within five (5) business days of receiving any invoice detailing Customer’s utilization of the Services, Customer shall have the right to submit a written inquiry regarding such invoice. Prompt shall respond with evidence of such utilization calculation within ten (10) business days of Customer's inquiry.
10.5. Annual True Up. For every twelve- (12-) month period of the Agreement which ends on the annual anniversary of the Go-Live Date (each a “True-Up Period”), Prompt expressly reserves the right to audit Customer’s utilization of the Minimum Term Services and adjust billing for the applicable True-Up Period in accordance with this Section (the “Annual True-Up”). If Customer’s actual utilization of any Minimum Term Service during the applicable True-Up Period (the “Actual Annual Payment”) resulted in payments for such Minimum Term Service totaling less than the Estimated Annual Payment for the applicable Minimum Term Service, Prompt shall have the right to bill Customer the difference between the Estimated Annual Payment for the applicable Minimum Term Service and the Actual Annual Payment for such Minimum Term Service (the “True-Up Payment”). The True-Up Payment shall be due and payable to Prompt within thirty (30) days of Customer’s receipt of the applicable invoice from Prompt.
10.6. Late Payments. Payments not made within the time periods set forth in the Agreement will be subject to late charges equal to the lesser of 1.5% per month of the overdue amount or the maximum amount permitted under Applicable Law. If Prompt discovers that Customer’s use of the Services exceeds Customer’s permitted use of the Services in accordance with the Agreement (including, without limitation, the number of authorized End Users set forth in the Order Form, Platform, or otherwise in writing between the parties), then Customer will be responsible for payment of all additional fees incurred for such excess use as a true-up based on the applicable rates agreed to between the parties, including any interest due for late payments with respect to such back-payment, and all such amounts will be immediately due and payable by Customer to Prompt. If Customer is over ninety (90) days late on any payment owed under the Agreement, Prompt reserves the right to require ACH payment for all future payments, and if Customer objects to such ACH payments, Prompt may terminate the Agreement immediately without penalty.
10.7. Taxes. In addition to any other payments due under the Agreement, Customer agrees to pay, indemnify, and hold Prompt harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under the Agreement; excluding, however, income taxes on profits which may be levied against Prompt.
11. Warranties
11.1. Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into the Agreement and to grant the rights and licenses set forth in Section 8 (Data Rights); (b) any Customer Data provided by Customer to Prompt for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of any Applicable Privacy Law; (c) it will ensure the accuracy of any Customer Data used or generated in connection with the Services, (d) its use of the Services will be in compliance with the Agreement and all Applicable Law; and (e) Customer’s End Users have all authorizations, consents, permissions, and rights necessary to access, use, and submit PHI through the Services.
11.2. Prompt Warranty. Prompt warrants during the applicable Term that: (a) the Prompt Services (excluding Prompt AI, Beta Services, and any Prompt Services provided during a Trial Period) will substantially comply with the Documentation; (b) it will use commercially reasonable efforts to screen the Prompt Services (excluding Prompt AI, Beta Services, or any Prompt Services provided during a Trial Period) for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (c) it will comply with Applicable Law in the performance of its obligations under the Agreement. In the event of a breach of the warranty in clause (a) of this Section 11.2 (Prompt Warranty), Customer’s sole and exclusive remedy will be for Prompt to use reasonable efforts to reperform the non-conforming Prompt Service, or if Prompt is unable through reasonable efforts to correct such non-conforming Prompt Service, Customer may elect to terminate the nonconforming Prompt Service and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Prompt Service.
11.3. Implementation Services Warranty. Prompt warrants during the Implementation Period that: (a) it has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Implementation Services in accordance with the Agreement; and (b) it will perform the Implementation Services in a good, diligent, and workmanlike manner in accordance with industry standards and Applicable Law. The foregoing warranties and Prompt’s ability to successfully perform hereunder is dependent and conditioned upon Customer’s reasonable and timely cooperation and timely provision of all such information and access to resources as are necessary or useful for Prompt to perform its obligations hereunder. If through no fault or delay of Customer, and otherwise to the extent within the reasonable control of Prompt, the Implementation Services do not conform to the foregoing warranty in all material respects, and Customer notifies Prompt within sixty (60) days of Prompt’s delivery of the Implementation Services, Customer may, as Customer’s sole and exclusive remedy, require Prompt to re-perform the portion of such Implementation Services that Prompt agrees, acting reasonably and in good faith, were non-conforming with the requirements of the Agreement.
11.4. Disclaimer of Warranties.
11.4.1. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. PROMPT AND ITS AFFILIATES, VENDORS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROMPT OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF PROMPT’S OBLIGATIONS HEREUNDER.
11.4.2. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROMPT AND ITS AFFILIATES, VENDORS, AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT, WITHOUT LIMITATION, (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS), MAY ATTEMPT TO OBTAIN ACCESS TO AND/OR DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. PROMPT WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.
11.4.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, THE SERVICES ARE NOT INTENDED TO SUBSTITUTE FOR THE FUNCTION OR SERVICES OF PROPERLY TRAINED AND LICENSED INDIVIDUALS, INCLUDING WITHOUT LIMITATION THERAPISTS OR OTHER CLINICIANS. PROMPT IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS, OR ANY OTHER INFORMATION OR SERVICES THAT ANY PATIENT OR OTHER INDIVIDUAL MAY OBTAIN OR RECEIVE; BILLING, CODING, OR CLAIMS ACTIVITIES CONDUCTED BY CUSTOMER; OR FOR THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY DATA, INFORMATION, OUTPUT, OR OTHER CONTENT USED OR RECEIVED IN CONNECTION WITH THE SERVICES. THE SERVICES ARE NOT INTENDED TO BE MEDICAL ADVICE, ARE NOT INTENDED TO BE USED IN A MANNER THAT CONSTITUTES A MEDICAL DEVICE, DO NO CONSTITUTE CLINICAL DECISION SUPPORT SOFTWARE, AND HAVE NOT BEEN REVIEWED OR APPROVED BY THE FOOD & DRUG ADMINISTRATION OR ANY OTHER GOVERNMENTAL AUTHORITY FOR SUCH USES.
11.4.4. PROMPT DOES NOT CONTROL OR DIRECT THE ACTIONS OF CUSTOMER, AND CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ALL DECISIONS, ACTIONS, OR OMISSIONS IT UNDERTAKES IN RELIANCE UPON OR IN CONNECTION WITH THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, PROMPT DISCLAIMS ANY AND ALL LIABILITY, RESPONSIBILITY, OR OBLIGATION FOR ANY LOSS, DAMAGE, CLAIM, COST, OR EXPENSE OF ANY KIND ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF, RELIANCE UPON, OR ACTIONS TAKEN BASED ON ITS RECEIPT OF, THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT ASSUMES FULL RESPONSIBILITY FOR ALL OUTCOMES RESULTING FROM ITS USE OF THE SERVICES.
11.4.5. PROMPT MAKES NO COMMITMENTS OF ANY KIND WITH RESPECT TO BETA SERVICES OR PROMPT AI, INCLUDING WITHOUT LIMITATION, ANY COMMITMENTS TO PATCH, UPDATE, UPGRADE, SUPPORT, OR CONTINUE TO MAKE AVAILABLE BETA SERVICES OR PROMPT AI. BETA SERVICES AND PROMPT AI ARE SUBJECT TO CHANGE WITHOUT NOTICE AND MAY DIFFER SUBSTANTIALLY UPON FURTHER RELEASE. BETA SERVICES AND PROMPT AI MAY CONTAIN CODE THAT IS IN “BETA” OR STILL IN DEVELOPMENT, OR THAT MAY NOT HAVE BEEN FULLY TESTED, MAY LACK STANDARD SECURITY FEATURES, AND MAY INCLUDE DEFECTS, BUGS, ERRORS, AND OTHER FAULTS THAT MAY RESULT IN TOTAL DATA LOSS OR SYSTEM FAILURE.
12. Indemnification. Customer will defend, indemnify, and hold harmless Prompt and its Affiliates, and its and their respective principals, owners, officers, directors, managers, employees, and agents, from and against any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred by Prompt or its Affiliates as a result of: (a) the conduct of Customer’s business or operations, including without limitation, Customer’s or any End User’s use of the Services or any breach of the Agreement; (b) any claim by a third party arising from or relating to: (i) use or combination of the Services with any hardware, software, products, data, or other materials not provided by Prompt; (ii) modification or alteration of the Services by Customer, its End Users, and/or its Affiliates; (iii) use of the Services in excess of the rights granted in the Agreement; or (iv) any specifications or other information, or intellectual property, provided by Customer, including, but not limited to, Customer Data; (c) Customer’s creation of custom exercises, templates, or other unique items within the Services; (d) Customer’s failure to comply with any Applicable Law; or (e) Customer’s gross negligence, fraud, or intentional misconduct.
13. HIPAA Compliance. Each party will comply with the terms set forth in the BAA, which is incorporated into the Agreement by this reference and made a part hereof. If there is any conflict between the terms and conditions of the BAA and the Agreement, the BAA will govern solely to the extent regarding PHI Processed by the Services under the Agreement.
14.1. Confidential Information. In connection with the Agreement, each party (as the “Disclosing Party”) may disclose or make available certain Confidential Information to the other party (as the “Receiving Party”). The Receiving Party agrees to: (a) hold Confidential Information in strict confidence and use it solely for the purposes of the Agreement; (b) use at least the same degree of care, but no less than reasonable care, as it employs with respect to its own confidential information of a like importance; (c) only disclose Confidential Information to its Representatives who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than set forth in the Agreement; and (d) to notify the Disclosing Party immediately of any unauthorized disclosure or use, and cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information. Customer will be responsible for its Representatives’ compliance with the terms of this Section 14 (Confidentiality).
14.2. Exclusions. Confidential Information will not include any information that (a) was or becomes generally known by the public other than by the Receiving Party’s or any of its Affiliate’s respective employees’, independent contractors’, subcontractors’, agents’, or representatives’ (collectively, “Representatives”) noncompliance with the Agreement; (b) was rightfully known to the Receiving Party prior to being disclosed by the Disclosing Party as evidenced by written records kept in the ordinary course of business; (c) has been or is hereafter rightfully received by the Receiving Party from a third party without restriction and without breach of a duty of confidentiality to the Disclosing Party; (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party, or (e) constitutes PHI.
14.3. Compelled Disclosures. To the extent required by Applicable Law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, provided, that prior to disclosing Confidential Information, to the extent permitted by law, the Receiving Party will so notify the Disclosing Party in writing prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, oppose, or seek to limit any disclosure by the Receiving Party, and will cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
14.4. Return of Confidential Information. On termination or expiration of the Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. For clarity, Prompt’s obligations to return Customer’s Confidential Information are set forth in Section 16.4 below. Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information as required by Applicable Law or in its backup media and servers where deletion would be commercially impracticable.
14.5. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that any breach of Section 14 (Confidentiality) may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law, and therefore, each party will be entitled to seek appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 14 (Confidentiality) will constitute a material breach of the Agreement and be grounds for immediate termination of the Agreement in the exclusive discretion of the non-breaching party.
15. Limitation of Liability and Damages.
15.1. IN ADDITION TO ANY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN ANY SERVICE-SPECIFIC TERMS AND CONDITIONS, NEITHER PROMPT NOR ITS AFFILIATES, VENDORS, AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, EXEMPLARY AND PUNITIVE DAMAGES) OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, USE OF (OR INABILITY TO USE) THE SERVICES OR THE EQUIPMENT, OR THE PERFORMANCE OF SERVICES.
15.2. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, AND IN ADDITION TO ANY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN ANY SERVICE-SPECIFIC TERMS AND CONDITIONS, THE TOTAL AGGREGATE LIABILITY OF PROMPT AND ITS AFFILIATES, VENDORS, AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED: (A) WITH RESPECT TO THIRD-PARTY SERVICES, THE GREATER OF THE TOTAL FEES ACTUALLY PAID HEREUNDER BY CUSTOMER FOR THE APPLICABLE THIRD-PARTY SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE CLAIM (OR FIRST CLAIM IN A SERIES OF CLAIMS) GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS ($100); OR (B) WITH RESPECT TO ALL OTHER CLAIMS OR DAMAGES, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER FOR THE APPLICABLE SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM (OR FIRST CLAIM IN A SERIES OF CLAIMS) GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
15.3. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, TO THE EXTENT PROMPT AND/OR ITS AFFILIATES HAVE LIABILITY TO CUSTOMER UNDER SEPARATE AGREEMENTS THAT ARISES OUT OF THE SAME OR SIMILAR FACTS AND CIRCUMSTANCES, THE TOTAL AGGREGATE LIABILITY OF PROMPT AND ITS AFFILIATES TO CUSTOMER ARISING OUT OF SUCH FACTS AND CIRCUMSTANCES WILL BE AGGREGATED ACROSS ALL APPLICABLE AGREEMENTS AND LIMITED TO THE AMOUNT PERMITTED BY THE AGREEMENT WITH THE LARGEST LIMITATION OF LIABILITY AS CALCULATED UNDER SECTION 15.2.
16.1. Term. The initial term applicable to the Services is set forth in the Order Form or such other written agreement between the parties (“Initial Term”). After the Initial Term, the term related to the applicable Service will automatically renew for successive periods equal to the Initial Term (each a "Renewal Term", and together with the Initial Term, the “Term”)) at the end of each Term thereafter, unless and until either party gives the other party notice of non-renewal at least ninety (90) days in advance of the end of the then-current Term. In the event that Customer’s Go-Live Date for any Service Customer licenses, subscribes to, or otherwise acquires during the Term of the Agreement differs from Customer’s Go-Live Date for CORE (the “Delayed Go-Live Service”), unless otherwise expressly agreed to in writing by the parties, the Initial Term applicable to such Delayed Go-Live Service shall be from the Go-Live Date of such Delayed Go-Live Service through the end of the then-current Term applicable to CORE. For clarity, the Term applicable to any such Delayed Go-Live Service shall be coterminous with the then-current Term applicable to CORE, and the Delayed Go-Live Services shall renew on the same date, and for the same period, as CORE for any Renewal Term.
16.2. Termination.
16.2.1. Termination for Breach. The Agreement will terminate: (i) on the ninetieth (90th) day after either party gives the other written notice of a breach by the other of any material term or condition of the Agreement, unless the breach is cured before that day; or (ii) upon written notice by either party, immediately, if (1) a receiver is appointed for the other party or its property, (2) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors, or (3) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
16.2.2. Termination by Prompt. Prompt may (in its sole discretion) terminate the Agreement immediately following the occurrence of any of following events: (i) if an invoice remains unpaid for forty-five (45) or more days from the invoice date; (ii) Customer fails to continue to use the Services for a continuous period of thirty (30) days or more; (iii) Customer permits access to the Services, or grants or attempts to grant any other rights or licenses regarding the Services, to any unauthorized person, or permits unauthorized access to information provided to Customer, or any End User permits or does any of the foregoing, in each case without the prior written consent of Prompt; or (iv) Prompt gives Customer fourteen (14) days written notice that Prompt has determined in its sole discretion that Customer or an End User has acted or failed to act in a manner that, as determined by Prompt in its sole discretion, is disruptive to Prompt’s business, and Customer fails to cure such act or omission (to Prompt’s satisfaction) within such notice period.
16.2.3. Expiration/Termination/Renewal of CORE. If CORE is terminated or the Term applicable to CORE otherwise expires, all other Services will be automatically terminated upon the effective date of termination or expiration of CORE, unless Prompt (in its sole discretion) agrees in writing to allow any Service to continue after such termination or expiration. If Prompt agrees to allow a Service to continue after such time, such Service will continue for the Term applicable to such Service (or for such other timeframe as agreed to in writing by Prompt). If CORE renews, then all other Services will also renew upon the same Term.
16.2.4. Additional Termination of Services. Except as otherwise set forth in the applicable Service-Specific Terms and Conditions, either party may terminate any Service, except for any Minimum Term Services, by providing not less than thirty (30) days’ written notice to the other party. Without limiting the foregoing: (a) Prompt may terminate a Third-Party Service immediately upon notice in accordance with the applicable third-party service provider’s requirements or as a result of expiration or termination of Prompt’s agreement with the applicable third-party service provider; and (b) to the extent such is allowed through the Platform, Customer may terminate certain Services (not including any Minimum Term Services) by deactivating the applicable Service within the Platform, provided that the effective date of termination of such Service will be the last day of the month in which the applicable Service is deactivated.
16.3. Suspension of Services. Notwithstanding any other provision of the Agreement, Prompt may, in its sole discretion, immediately suspend Customer’s access to the Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services, including, but not limited to, resulting from Customer’s use of robots or similar automated tools or other means (whether or not such tools or means are approved by Prompt); (b) to comply with Applicable Law; (c) to protect Prompt from potential legal liability; (d) if an invoice remains unpaid for more than forty-five (45) or more days from the invoice date; (e) Customer’s access to the Services may pose a security risk or threat to the function of the Services or to the confidentiality of any data associated with the Services; (f) Customer’s excessive use of the Services or use of the Services for purposes for which they are not intended; or (g) if Customer breaches the Agreement. Prompt will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Prompt will promptly restore access to the Services once the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Prompt to monitor use of the Services. Prompt will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any End User may incur as a result of a Services suspension in accordance with this Section.
16.4. Effect of Termination. Upon expiration or termination of a particular Service or Services for any reason: (a) Customer’s and all End Users’ access to and use of the terminated Service(s) will cease as of the effective date of expiration or termination; (b) Customer will pay to Prompt all sums due to Prompt for the terminated Service(s) through the effective date of such expiration or termination (prorated as appropriate); and (c) unless the termination of the applicable Service(s) results from Prompt’s breach of the Agreement pursuant to Section 16.2(a), Customer shall pay the Termination Fees related to the applicable Service(s) as set forth in the Agreement. Upon expiration or termination of the entire Agreement for any reason: (w) Customer’s and all End Users’ access to and use of the Services will cease as of the effective date of expiration or termination; (x) Customer will pay to Prompt all undisputed sums due to Prompt for Services through the effective date of such expiration or termination (prorated as appropriate); (y) at Prompt’s standard time and materials rates and provided that Customer has executed Prompt’s then-current data extract agreement, Prompt will reasonably cooperate with Customer in transitioning any Customer Data stored by Prompt in CORE back to Customer, including PHI in accordance with the BAA. For clarity, Prompt will have no obligation, and no related liability, for maintaining or transitioning back to Customer any information not imported into CORE. Upon completion of such transition, Prompt shall have no further obligation to retain any Customer Data, including PHI; and (z) unless the termination of the Agreement results from Prompt’s breach of the Agreement pursuant to Section 16.2(a), Customer shall pay the Termination Fees set forth in the Order Form (or otherwise agreed to in writing by the parties). The Termination Fees will become immediately due and payable in full upon the effective date of termination and will accrue interest if not paid within thirty (30) days of the effective date of termination. Customer acknowledges and agrees that Prompt may utilize the ACH payment or credit card payment methods specified in and pursuant to the ACH Authorization to charge Customer for the Termination Fees pursuant to the Agreement in one or multiple charges, at Prompt’s sole discretion.
16.5. Continuation Assistance. Unless terminated by Prompt pursuant to Sections 16.2(a) or (b), upon expiration or termination of CORE, if requested by Customer in writing, Prompt will provide Customer with either read-only access to CORE for $99 per month or bill-only access to CORE for $399 per month, until Customer notifies Prompt in writing that it no longer requires such access or Prompt notifies Customer that it will terminate such access at least fifteen (15) days in advance, whichever occurs first. Prompt may increase prices for such read-only access and/or bill-only access at any time upon fifteen (15) days’ prior written notice to Customer.
17.1. Affiliates, Subcontractors, and Vendors. Some or all of the Services, including, but not limited to, support, Third-Party Services, and Implementation Services may be provided by Prompt’s Affiliates, agents, subcontractors, and information system vendors (“Subcontractors”). Prompt shall ensure such Subcontractors comply with all relevant terms of the Agreement that are applicable to them.
17.2. Publicity. Customer consents to Prompt's identification of Customer as a customer in verbal or written correspondence with third parties. Prompt may issue a press release announcing Customer and Prompt's relationship and list Customer publicly on its Web sites, social media, and in other promotional materials only with Customer's prior written consent.
17.3. Force Majeure. Except for the payment of fees by Customer, neither party will be liable for any failure or delay in performance under the Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, epidemics, pandemics, quarantines, civil disorders, rebellions or revolutions, war, riot, acts of God, embargoes, export control regulations, laws, judgments, or government actions, orders, or instructions (each, a “force majeure event”). Without limiting the foregoing, Prompt shall not be liable for delays or failures in performance under the Agreement by reason of Customer’s or any third party’s failure to provide the data or information necessary for complete and proper access to, and transmission of, the Services.
17.4. Non-Disparagement; Non-Solicitation. Customer shall not (and shall not cause or encourage any other person or entity to) at any time, directly or indirectly, make, publish, or communicate to any person or entity any statement, comment, or remark, whether written or oral, which in any way disparages, defames, or is negative regarding, or could reasonably be expected to impugn the personal or professional character, reputation, or integrity of, Prompt or its employees, or any of its Affiliates. Prompt’s executives and employees who directly interact with Customer shall not (and shall not cause or encourage any other person or entity to) make, publish, or communicate any defamatory, disparaging, or derogatory statements or remarks concerning Customer. Nothing in this clause shall prohibit either Prompt or Customer from making truthful statements that are required by law, regulation, or legal process. To the extent permissible by Applicable Law, during the Term and for a period of twelve (12) months following termination or expiration of the Agreement, Customer agrees that it will not directly solicit the engagement or employment of any of the employees, contractors, or other personnel of Prompt who have been engaged in the provision of the Services, without written permission of Prompt, provided, that the foregoing will not apply to persons who have independently responded to general solicitations (such as general newspaper advertisements and Internet postings) not targeting such persons.
17.5. Entire Agreement; Amendment. The Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of the Agreement, except as referenced herein. Prompt reserves the right to modify the Terms and Conditions applicable to Customer and/or any Services. For clarity, the Terms and Conditions include the General Terms and Conditions, the Service-Specific Terms and Conditions, and any other terms and conditions agreed to in writing by the parties (via the Platform or otherwise). Prompt will post any updated Terms and Conditions on the Platform and/or on Prompt’s designated website. Any updated version of the Terms and Conditions shall become effective as of the publication date and will supersede all prior versions of such Terms and Conditions with respect to any access to or use of Services by Customer and its End Users after such posting date. If Customer does not agree to such updated Terms and Conditions, Customer must provide notice of such to Prompt within five (5) business days of the publication date and in accordance with Section 17.13. To the extent Customer notifies Prompt of such, Prompt may (at its sole discretion) either terminate Customer’s access to the impacted Services or may agree to apply the previously agreed-upon Terms and Conditions to the impacted Services. If Customer does not notify Prompt of such within the applicable timeframe, Customer agrees to be bound by such updated Terms and Conditions. The Agreement prevails over any terms or conditions in any Customer documentation or communication, including, but not limited to, any purchase order, general terms and conditions, or any other document or communication issued by or on behalf of Customer in connection with any purchase of Services, regardless of whether or when submitted. Prompt’s fulfillment of Customer’s order does not constitute Prompt’s acceptance of any such additional terms and conditions (all of which are hereby rejected) and does not modify or amend the Agreement. In the event of a conflict between these General Terms and Conditions and any Service-Specific Terms and Conditions or Third-Party Service Terms and Conditions, the Service-Specific Terms and Conditions or Third-Party Service Terms and Conditions will control with respect to the applicable Service.
17.6. Governing Law and Venue; Limitation of Actions. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection herewith will be tried and litigated exclusively in the state court located in Hudson County, New Jersey, USA or the federal court in the United States District Court for the District of New Jersey, Newark Vicinage (located in Essex County). Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. Except for actions for nonpayment, breach of Prompt’s proprietary rights, or violations of confidentiality, no action, regardless of form, arising out of the Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
17.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
17.8. Relationship of the Parties. The parties agree that Prompt will perform its duties under the Agreement as an independent contractor. Nothing contained in the Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Prompt who perform duties related to the Agreement will remain under the supervision, management, and control of Prompt.
17.9. Assignment. Customer may not assign the Agreement without the prior written consent of Prompt, except Customer may assign the Agreement without consent to a successor in connection with a merger, consolidation, reorganization, or sale of all or substantially all assets or business related to the Agreement which has assumed in writing its obligations under the Agreement, provided, that in no event shall Customer be permitted to assign the Agreement to any competitor of Prompt or its Affiliates without Prompt’s prior written consent.
17.10. Severability. If any of the provisions of the Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of the Agreement and will not cause the invalidity or unenforceability of the remainder of the Agreement.
17.11. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Further, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.12. Survival. Any provision of the Agreement which, by its nature, would survive termination or expiration of the Agreement will survive any such termination or expiration of the Agreement, including without limitation, the following Sections: 3 (Customer Obligations/Restrictions/Limitations); 7 (Proprietary Rights), 8 (Data Rights), 9 (Feedback), 10 (Fees) (for any unpaid amounts due and payable by Customer), 11.4 (Disclaimer of Warranties), 12 (Indemnification), 14 (Confidentiality), 15 (Limitation of Liability and Damages), 16 (Term; Termination), and 17 (General Provisions).
17.13. Notices. All notices hereunder must be in writing and addressed to Prompt at the address set forth in the Order Form, along with copies to notices@promptemr.com and legal@promptemr.com, and to Customer at the address or email address set forth in the Order Form, or in either case to such other address or email address that may be designated by a party from time to time by giving notice to the other party in accordance with this Section. All notices must be delivered: (1) by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid); and (2) with a copy to the applicable party’s email address(es). Except as otherwise provided in the Agreement, a notice is effective only: (a) upon receipt by the receiving party; and (b) if the party giving the notice has complied with the requirements of this Section.
17.14. Compliance Verification. Prompt has the right to audit and/or inspect Customer’s records to verify Customer’s compliance with the Agreement during the Term and for a period of one (1) year following termination or expiration of the Agreement.
17.15. Counterparts. The Order Form may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
17.16. Electronic Execution. The Order Form may be accepted in electronic form (e.g., by an electronic signature), which shall have the same legal effect, validity, and enforceability as a manually executed signature to the extent and as provided for in any Applicable Law.