STANDALONE BENEFIT VERIFICATION AND AUTHORIZATION SERVICES TERMS AND CONDITIONS
These Standalone Benefit Verification and Authorization Services Terms and Conditions are incorporated into and made part of the Agreement (as defined in the Order Form executed by the parties). These Standalone Benefit Verification and Authorization Services Terms and Conditions are applicable when Customer is receiving Benefit Verification Services and/or Prior Authorization Services, but not receiving RCM Base Services. If Customer is receiving RCM Base Services, the Billing and Collection Services Terms and Conditions will apply. 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. “Authorization” means a Payor’s advance approval of specific physical therapy services, visits, or treatment periods, confirming that the services are medically necessary and eligible for reimbursement under the patient’s plan.
1.5. “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.
1.6. “BAA” means the business associate agreement referenced in the Order Form or otherwise agreed to in writing by the parties, as required under HIPAA.
1.7. “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 and Documentation are Prompt’s Confidential Information, and the Customer Data and Customer Property are Customer’s Confidential Information.
1.8. “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.
1.9. “EMR License Agreement” means the License and Services Agreement by and between PTS and Customer, as may be amended from time to time, pursuant to which Customer is provided use of and access to the PTS EMR System.
1.10. “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.
1.11. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and published at 45 C.F.R. Parts 160 and 164, and as amended by the Health Information Technology for Economic and Clinical Health Act ("HITECH Act"), and their implementing regulations.
1.12. “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).
1.13. “Payor” means an insurance carrier, health maintenance organization, pre-paid plan, third party administrator, trust fund employer, employee welfare benefit plan, governmental agency or program, or any other party responsible for providing payment or reimbursement for services rendered by Customer.
1.14. “PHI” shall have the definition set forth in the BAA.
1.15. “Platform” means PTS’s proprietary platform made available over the internet through which Customer and its End Users can access and use the PTS EMR System.
1.16. “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.
1.17. “Prompt” means Prompt Health Services, LLC.
1.18. “Prompt AI” means Prompt’s or PTS’s generative or other artificial intelligence (“AI”) features.
1.19. “Provider” means any End User who provides clinical services to patients.
1.20. “PTS” means Prompt Therapy Solutions, Inc.
1.21. “PTS EMR System” means the EMR system made available by PTS to Customer, the terms of which are separately set forth in the EMR License Agreement.
1.22. “Service-Specific Terms and Conditions” means those additional terms and conditions governing the use of certain Services.
1.23. “Services” means the administrative services as set forth in further detail in Exhibit A.
1.24. “Technician” means a physical therapy technician who works under the supervision of a physical therapist.
1.25. “Territory” means the United States.
1.26. “Therapist Assistant” means a physical therapist assistant, occupational therapist assistant, or speech language pathologist assistant.
1.27. “Trainee” means any student or post-professional clinical resident or fellow.
1.28. “Verification” means confirming benefits and eligibility to determine whether the services that the Customer intends to provide are covered and authorized by the applicable Payor.
1.29. “Visit” means any patient or client visit that is checked in through the PTS EMR System.
2. Services
2.1. Prompt Services. Subject to Customer’s compliance with the terms of the Agreement, including without limitation, any applicable Documentation, Customer will provide the Services to Customer in accordance with the terms set forth in this Agreement. 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. Training Materials. At Prompt’s discretion, Prompt may provide Customer with access to Prompt’s Training Center containing virtual training modules and which may include a checklist of tasks that Customer is required to complete. 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. Training Materials are not subject to any maintenance, support, or updates.
2.3. 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 made available to Customer (“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.
2.4. 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 billing and collection services, 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).
3. Customer Obligations/Restrictions/Limitations.
3.1. Customer understands and acknowledges that:
3.1.1. Prompt is solely responsible for those Services as expressly set out in Exhibit A (and to the extent the parties have entered into an Order Form pursuant to which Prompt has agreed to provide the applicable Services to Customer); and
3.1.2. Prompt has no obligation to provide any services, or take any action, not set out in Exhibit A.
3.2. Customer will fulfill the responsibilities and comply with the obligations set forth in Exhibit B. Customer acknowledges that Prompt’s ability to perform the Services is directly impacted by Customer fulfilling its obligations in Exhibit B. Prompt is not liable or responsible for any delays or failure to perform the Services to the extent caused by Customer’s failure to comply with any of its obligations in Exhibit B. For clarification, and not in limitation of the foregoing:
3.2.1. Prompt shall not be responsible for reimbursement losses arising from credentialing, enrollment, or timely filing failures attributable to Customer.
3.2.2. Prompt shall not be liable for denials, delays, penalties, or reimbursement losses arising from Customer documentation, coding, credentialing, or any front office deficiencies.
3.3. The parties understand and acknowledge that the Service Fees were calculated based upon both: (a) Prompt’s express obligations in Exhibit A; and (b) Customer fulfilling its obligations in Exhibit B. The parties agree that the Service Fees will need to be increased if either: (i) Prompt is required to take on additional obligations not set forth in Exhibit A; or (b) Customer is not fulfilling its obligations in Exhibit B, such Prompt must incur more time and effort in order to provide the Services.
3.4. Customer will use the PTS EMR System in accordance with the terms set forth in the EMR License Agreement. Customer will provide, and allow Prompt access to, timely assistance, cooperation, and complete and accurate information and data from Customer’s officers, agents and employees through the PTS EMR System (collectively, “Cooperation”), and Prompt shall not be liable for any deficiency in, or failure to provide, the Services if such deficiency results from Customer’s failure to provide full Cooperation as required hereunder. Cooperation includes, but is not limited to, designating a project manager to interface with Prompt during the course of the Services and allocating and engaging additional resources as may be required to assist Prompt in performing the Services or providing support.
3.5. Customer acknowledges that: (a) Customer is solely responsible for reviewing and approving all coding and claim information before submission; (b) the ultimate responsibility for all claims submitted is that of Customer, and Customer shall remain solely responsible for any subsequent correction, adjustment, or repayment of any payment regardless of reason or cause; (c) Customer shall be solely responsible for any consequences associated with submission of false, fraudulent or misleading data, information, or statements, to its patients, the government or other Payors in connection with insurance coding, billing and claims submissions that are attributable to Customer’s provision of such information to Prompt; and (d) in no event will Prompt be responsible for the Services, or any portion thereof, that are not or cannot be performed as a result of Customer’s failure to: (i) maintain applicable records through the PTS EMR System (including complete and accurate demographic information), (ii) comply with the terms of use of the PTS EMR System; or (iii) provide necessary Cooperation.
3.6. Customer acknowledges that Prompt relies on Customer to provide accurate and complete information and documentation. Prompt has no obligation to independently verify any information or documentation that Customer provides or makes available.
3.7. Customer acknowledges that Prompt may be authorized to submit information or attestations to government agencies or authorities on Customer’s behalf. In doing so, Prompt will rely on the information and documentation provided by Customer. Prompt will not be liable for any interruption, delay, or denial resulting from such submissions.
3.8. Customer and its End Users may not use the Services or Documentation for any purposes beyond the scope of the access granted in the Agreement.
3.9. Customer’s use of the Services and Documentation is subject to the terms of the Agreement, along with all applicable Documentation.
3.10. Prior to the Go-Live Date, Customer will fulfill all obligations communicated in writing by Prompt, which includes, without limitation, completing all onboarding activities and requiring all Customer staff to complete any applicable Prompt University training.
3.11. 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 or Documentation; (b) access or use the Services or Documentation 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 or Documentation in whole or in part; (d) copy, modify, or create derivative works of the Services, or Documentation; (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted in the Agreement; (f) use any Services or Documentation or allow the transfer, transmission, export, or re-export of any Services or Documentation, or any portion thereof, in violation of Applicable Law; (g) remove any proprietary notices, warning notices, or disclaimers from any part of the Services or Documentation, 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 or Documentation 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.
3.12. Under no circumstances will Prompt be liable or responsible for any use, or any results obtained by the use, of the Services or Documentation in conjunction with any products, services, software, or hardware that are not provided by Prompt (each a “Third Party System”) and all such use will be at Customer’s sole risk and liability. For clarification, and not in limitation of the foregoing, if Prompt in any way interacts with any Third Party System, Customer will ensure such use will comply with any terms and conditions applicable to such Third Party System, and will ensure that such Third Party System complies with: (i) any applicable Terms and Conditions (including without limitation relating to Confidential Information); and (ii) all Applicable Law.
3.13. 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.
3.14. 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. 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.
5. Support and Maintenance.
5.1. During the Term, Prompt will provide Customer with reasonable support during Prompt’s then-current business hours. Prompt will provide customer service updates that Prompt in its sole discretion makes generally available to its other similarly situated customers at no charge. Prompt will use commercially reasonable efforts to provide support as related to any reproducible failure of the Services to perform in substantial accordance with their then-current Documentation.
5.2. 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.
6. Proprietary Rights.
6.1. 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 Affiliates, 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; 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.
6.2. 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 under the Agreement, and to the extent such Tools are delivered with or as part of such Services, they are licensed, not sold or assigned, to Customer, on the same terms and subject to the same conditions as the Documentation under the Agreement. All Tools are proprietary to Prompt or its licensors and are Prompt’s Confidential Information.
6.3. 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 Services to Customer under the Agreement.
7.1. Customer Data. Customer hereby irrevocably grants all rights and permissions in or relating to the documents, information, graphics, data, materials, and other content (collectively “Content”), in any form or medium, provided, or made available, by Customer or End Users, whether input into the PTS EMR System for Prompt’s provision of the Services or that are otherwise collected, downloaded, or received, directly or indirectly, from Customer or an End User by or through the Services or that are derived from the Processing of such Content by or through the PTS EMR System or 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.
7.2. 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.
7.3. AI Use. Customer agrees that Prompt may use Prompt AI in order to provide the Services. Customer instructs Prompt to Process Customer Data 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 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. 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.
9. Fees
9.1. Fees. Customer will pay Prompt the fees associated with the Services as described herein, in any Order Form, or as otherwise agreed to in writing by the parties. For clarity, and not in limitation of the foregoing, Customer has the ability to add certain Services whether through the Platform or by entering into an additional Order Form. Customer is obligated to pay for such Services whether Customer enters into an Order Form or adds Services through the Platform or another writing executed by the parties.
9.2. Expenses. In addition to the Service Fees, Customer shall reimburse Prompt for any expenses incurred by Prompt in providing items or services in addition to the Services, including but not limited to costs associated with Customer’s excessive or inappropriate utilization of the Services.
9.3. Price Increases. Unless otherwise modified pursuant to the terms set forth herein, the Service Fees will remain the same for the Initial Term.
9.4. Payment. Within ten (10) business days following the end of each calendar month, Prompt will provide Customer a report setting forth in reasonable detail the amounts and calculation of the Service Fees for the prior month (the “Monthly Report”). Customer must execute Prompt’s ACH authorization form (Recurring ACH Payment Authorization) (the “ACH Authorization”) or provide a valid credit card for use by Prompt to pay the Service Fees. Except for the initial payment, all payments will be automatically processed and charged to the ACH or credit card information provided the ACH Authorization on the fifteenth (15th) day of each calendar month. Credit card payments will be subject to a processing charge of three percent (3%). The amount of the Service Fees may change from month-to-month based on the actual utilization of the Services.
9.5. Late Payments/Excessive Use. 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 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.
9.6. 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.
10. Warranties
10.1. 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 7 (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 and it’s End Users have all authorizations, consents, permissions, and rights necessary to access, use, and submit PHI through the Services.
10.2. Prompt Warranty. Prompt warrants during the applicable Term that: (a) the Services will substantially comply with the Agreement; (b) it will use commercially reasonable efforts to screen the Services 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 10.2 (Prompt Warranty), Customer’s sole and exclusive remedy will be for Prompt to use reasonable efforts to reperform the non-conforming Service, or if Prompt is unable through reasonable efforts to correct such non-conforming Service, Customer may elect to terminate the nonconforming Service and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Service.
10.3. Disclaimer of Warranties.
10.3.1. 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.
10.3.2. 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, (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE, OR (B) 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.
10.3.3. 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; CODING 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.
10.3.4. 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.
11.1. 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 any claim by a third party arising out of or related to: (a) the conduct of Customer’s business or operations, including, without limitation, any claims of medical malpractice or professional negligence related to Customer’s clinical services; (b) Customer’s or any End User’s use of the Services or any breach of the Agreement; (c) any inaccurate or incomplete information provided by Customer; (d) Customer’s or its Providers’ coding decisions, coding practices, documentation, or coding compliance, including any claim that submitted claims were incorrectly coded or improperly supported; (e) any allegation related to the submission of false, fraudulent or misleading data, information, or statements, to Customer’s patients, the government, or Payors, (f) use or combination of the Services with any hardware, software, products, data, or other materials not provided by Prompt; (g) modification or alteration of the Services by Customer, its End Users, and/or its Affiliates; (h) use of the Services in excess of the rights granted in the Agreement; (i) any specifications or other information, or intellectual property, provided by Customer, including, but not limited to, Customer Data; (j) Customer’s failure to comply with any Applicable Law; or (j) Customer’s gross negligence, fraud, or intentional misconduct.
12. HIPAA Compliance/PHI.
12.1. 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. For clarification, and not in limitation of the foregoing, if Customer uses any Third Party System or third party vendor or provider that will use, access, store, or process PHI, Customer will ensure that it has proper rights necessary for such and will ensure any such use, access, storage, or processing of PHI, are done in compliance with Applicable Law (including, without limitation, HIPAA).
13.1. To the extent required by Federal law, the parties each agree to make available to the Secretary of the United States Department of Health and Human Services, the United States Comptroller General, and their representatives, this Agreement and all books, documents, and records in accordance with 42 C.F.R. §§ 420.300-420.304.
14. Confidentiality
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 THE 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 THE TOTAL FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE ONE (1) 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. As of the Effective Date, the parties agree to be bound by the terms of this Agreement with Prompt’s performance of the Services commencing on the Go-Live Date, as set forth in the Order Form, or such other date as the parties mutually agree in writing. 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 the Prompt RCM Services Enabled at Go-Live (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 the Prompt RCM Services Enabled at Go-Live. For clarity, the Term applicable to any such Delayed Go-Live Service shall be coterminous with the then-current Term applicable to the Prompt RCM Services Enabled at Go-Live, and the Delayed Go-Live Services shall renew on the same date, and for the same period, as the Prompt RCM Services Enabled at Go-Live for any Renewal Term.
16.2. Termination.
16.2.1. Termination for Breach. The Agreement will terminate: (a) 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 (b) upon written notice by either party, immediately, if: (i) a receiver is appointed for the other party or its property; (ii) 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 (iii) 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: (a) if an invoice remains unpaid for forty-five (45) or more days from the invoice date; (b) 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 (c) 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 of the EMR License Agreement. If the EMR License Agreement is terminated or the Term applicable to the EMR License Agreement otherwise expires, the Services will be automatically terminated upon the effective date of termination or expiration of the EMR License Agreement. If the EMR License Agreement is being terminated at Customer’s request, Customer will notify Prompt of such so that the parties can terminate this Agreement in an orderly fashion. In such an event, Customer will owe Prompt for all sums due for any Services provided by Prompt through the effective date of termination.
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 use of the Services for purposes for which they are not intended or in violation of Applicable Law; (g) if Customer fails to comply with any requirements or restrictions related to its (or its End Users’) use of the PTS EMR System pursuant to the EMR License Agreement; or (h) 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 the Services for any reason: (a) Customer’s and all End Users’ access to and use of the Services will cease as of the effective date of expiration or termination; and (b) Customer will pay to Prompt all sums due to Prompt for any Services provided by Prompt through the effective date of such expiration or termination. For clarity, Prompt will have no obligation, and no related liability, for maintaining or transitioning back to Customer any information. Prompt shall have no further obligation to retain any Customer Data, including PHI.
17.1. Affiliates, Subcontractors, and Vendors. Some or all of the 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. Fair Market Value. The parties represent, covenant, and agree that the terms of this Agreement and the Service Fees set forth herein has been determined through good faith and arm’s length bargaining and are commercially reasonable and consistent with fair market value for the Services. Customer and Prompt shall undertake measures from time to time to confirm that such amounts continue to represent reasonable, fair market compensation for the Services. In the absence of such a finding or in the event that there are changes in the health care industry that materially affect the arrangement set forth in this Agreement, the parties hereto may negotiate in good faith to reach a mutually acceptable modification to this Section 17.3 as necessary to provide for the payment of reasonable, fair market compensation.
17.4. No Sanction. As of the Effective Date and during the Term, each party represents that such party and its employees, contractors, officers, directors, managers, members and any other persons involved in the ownership of, operation of or provision of services by such party have not been suspended, excluded, sanctioned, or debarred by the Office of Inspector General, General Services Administration, Office of Foreign Assets Control, or any state, and are not otherwise suspended, excluded from or sanctioned by, any federal or state health care plan or program or have been convicted of any criminal offense related to the provision of healthcare items or services. Neither party is the subject of or bound by the provisions of any Corporate Integrity Agreement or Deferred Prosecution Agreement with any government agency. Each party shall notify the other party within one (1) business day in the event that such party cannot comply with the representation set forth in this Section 17.4.
17.5. 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.
17.6. 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.
17.7. 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 Billing and Collection Services 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. Prompt will provide notice to Customer (via email, the Platform, or otherwise) of any material or substantive updates to the Terms and Conditions. For purposes of this Section, “material or substantive updates” means updates to the Terms and Conditions that significantly affect Customer’s rights or obligations under the Agreement. Non-material updates, such as administrative updates or corrections that do not affect the Customer’s rights or obligations, may be made without notice. 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 17.15. 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 Billing and Collection Services 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.
17.8. Governing Law and Venue; Limitation of Actions. The Agreement will be construed according to, and the rights of the parties will be governed by, 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.
17.9. No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
17.10. 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.
17.11. 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.
17.12. 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.
17.13. 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.
17.14. 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); 6 (Proprietary Rights), 7 (Data Rights), 8 (Feedback), 9 (Fees) (for any unpaid amounts due and payable by Customer), 10.3 (Disclaimer of Warranties), 11 (Indemnification), 14 (Confidentiality), 15 (Limitation of Liability and Damages), 16 (Term; Termination), and 17 (General Provisions).
17.15. 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@prompthealth.com and legal@prompthealth.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.
17.16. 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.
17.17. 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.
17.18. 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.
EXHIBIT A
Services and Prompt Obligations
1. Benefit Verification Services. To the extent the parties have entered into an Order Form, or another written agreement, pursuant to which Prompt has agreed to provide Benefit Verification Services to Customer, Prompt will provide the following benefit verification services (the “Benefit Verification Services”):
1.1. Perform insurance benefit verification services for patients for whom Customer has populated complete and accurate patient demographic and Payor information in the PTS EMR System. Prompt may use any of the following methods to conduct such benefit verification services, at Prompt’s discretion: direct Payor portal access, telephone outreach, and/or EDI-based eligibility tools;
1.2. Perform such Benefit Verification Services within a commercially reasonable timeframe after patient information is entered or updated by Customer in the PTS EMR System;
1.3. Record relevant benefit and coverage details obtained during the verification process in the patient’s insurance profile and/or billing case notes within the PTS EMR System; and
1.4. Notify Customer through the PTS EMR System if any discrepancies, missing information, or follow-up items are identified during the benefit verification process.
2. Payor Authorization Services. To the extent the parties have entered into an Order Form, or another written agreement, pursuant to which Prompt has agreed to provide Payor Authorization Services to Customer, Prompt will provide the following payer authorization services (the “Payor Authorization Services”):
2.1. Serve as the central point of contact for all Payor authorization inquiries and updates;
2.2. Monitor and adhere to Payor-specific turnaround times, proactively addressing any delays;
2.3. Provide status of Payor authorizations transparently within the patient's record or billing case notes;
2.4. Maintain a current matrix to reflect differences in Payor authorization requirements by Payor, state, and visit type; and
2.5. Track and report on the following performance indicators:
2.5.1. Average time from intake to authorization approval.
2.5.2. Denial rates attributed to missing or late authorizations.
2.5.3. Volume of authorizations processed, categorized by payer and clinic.
EXHIBIT B
Customer Obligations
In addition to the obligations otherwise set forth in the Agreement, in connection with Prompt’s provision of the Services, Customer shall be responsible for the following:
1. Providing Prompt with full, timely, and ongoing access to all systems necessary to perform the Services, including Payor portals, enrollment systems, EFT/ERA systems, bank accounts (as applicable), and a Prompt-authorized clearinghouse. Customer will promptly revoke or remove Prompt’s access to these systems upon termination of the Agreement, as appropriate.
2. Fulfilling its responsibilities by complying with all PTS EMR System requirements and maintaining records in the standardized format required by Prompt.
3. Responding promptly to Prompt requests for missing or supporting information.
4. Resolving any credentialing or enrollment deficiencies leading to claim denials. Customer shall notify Prompt in writing within one (1) business day following resolution of each such deficiency.
5. Ensuring that Prompt is provided with all necessary and complete records and information from which to verify insurance and/or obtain proper authorization, or otherwise provide the Services, in a timely manner. Such records and information shall be maintained and provided to Prompt through the standardized format provided through the PTS EMR System. Customer will ensure that it complies with the requirements and terms and conditions of the PTS EMR System at all times.
6. Cooperating with Prompt as may be necessary (including providing documentation or other information that may be requested by Prompt from time to time) to permit Prompt to perform its duties hereunder.
7. Ensuring the accuracy and completeness of all patient insurance information and for ensuring the medical necessity and appropriateness of the services Customer renders for which a claim will be submitted, and for any and all liabilities arising therefrom.
8. All coding of claims, including without limitation clinical documentation, diagnosis coding, procedure coding, charge capture, modifier usage, claim content, and coding-related compliance.
9. All credentialing and enrollment obligations, including as follows: Ensuring that all applicable credentialing and enrollment activities are completed and kept current for Customer and all personnel or parties providing services on Customer’s behalf. Any claims denied due to credentialing or enrollment issues will be placed on hold, and Prompt will not make any resubmissions or collection efforts on such claims until these issues are resolved. Customer shall notify Prompt in writing within one (1) business day following the resolution of such credentialing and/or enrollment issues to enable the resubmission of claims. Customer acknowledges that delays in resolving credentialing and/or enrollment issues may result in claim submission past the timely filing limit, which may lead to permanent denial. In such cases, Prompt will not be held responsible for any reimbursement or financial liability related to claims denials related to Customer’s credentialing or enrollment deficiencies.
10. Unless the parties have entered into an Order Form, or another written agreement, pursuant to which Prompt has agreed to provide Benefit Verification Services and/or Payor Authorization Services to Customer, Customer is responsible for all patient eligibility verification and payor authorization-related services, including, but not limited to, the following:
10.1. Eligibility Verification: Customer will respond promptly to requests for missing or supporting information for Prompt to complete verification. Customer will also provide accurate and complete patient demographics, insurance information, and required documentation.
10.2. Monitoring Visits and Caps: Customer will respond promptly to requests for missing or supporting information.
10.3. Handling Denials: Customer will notify Prompt of any schedule changes, new procedures, or updates that may impact authorizations.
10.4. Coverage Verification and Documentation:
10.4.1. After Prompt has verified coverage, Customer is responsible for obtaining and tracking prior authorization approvals and insurance limits. Customer must provide Prompt with all relevant documentation, including up-to-date and accurate copies of insurance cards, prescriptions, signed payment schedules, signed claim forms, and any other pertinent information necessary for maximum reimbursement.
10.4.2. Customer acknowledges that: (i) incomplete or inaccurate data may result in delays or denials for which Prompt will not be held responsible, and (ii) any alerts or reports provided by Prompt regarding eligibility, authorizations, or other front-office-related matters are informational only and do not transfer operational responsibility to Prompt.
11. Maintaining all original source documentation as necessary to enable verification and/or documentation of any claims submitted to Payors.
12. Complying with all applicable policies and procedures provided by Prompt.
13. Collecting and delivering to Prompt up-to-date contact information for each of Customer’s customers, including email address, mailing address, and phone number.