As set forth in an Order, Statement of Work or other agreement signed an Infinx customer, the following terms and conditions apply to Infinx’s customer’s use of all Infinx software and SaaS solutions. All other Infinx services are governed by the Infinx Services Terms And Conditions located at www.infinx.com/Services-Terms).”
INFINX SAAS TERMS AND CONDITIONS
READ CAREFULLY THE FOLLOWING INFINX SAAS TERMS AND CONDITIONS, WHICH CONTAIN THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN TIS INTERNATIONAL (US), INC., A DELAWARE CORPORATION, DOING BUSINESS AS INFINX HEALTHCARE (INCLUDING ITS OFF-SHORE AFFILIATE, INFINX SERVICES PVT. LTD., LOCATED IN INDIA (“VENDOR’S AFFILIATE”) AND COLLECTIVELY WITH VENDOR’S AFFILIATE AND ITS OTHER AFFILIATED ENTITIES “VENDOR” OR “INFINX”), AND YOU, THE BUSINESS OR OTHER ENTITY ON BEHALF OF WHICH YOU ARE ACCESSING THIS SITE OR ANY OF THE SAAS SERVICES, “CUSTOMER”), REGARDING THE PROVISION AND USE OF THIS SITE AND THE SAAS SERVICES. You represent and warrant to Infinx that you have full legal authority to accept these terms of service and that you are not banned from accessing or using the site under the laws of the United States or any other country.
1. ACCEPTANCE OF TERMS.
Infinx owns and operates certain websites (https://internalapi.infinx.com, https://ipa.infinx.com, https://live.ibridgeworkflow.com and/or www.infinx.com, among others), including all services, products, forums and other content and information made available here (collectively, the “Sites”), in addition to various software products (such as the Infinx Prior Authorization Software (IPAS) , Infinx Clinical Decision Support Mechanism (CDSM) and Insurance Verification and Benefits (IVB) solutions), application program interfaces (APIs), and other online tools and software available via the Sites (collectively, the “SaaS Services”).
These Terms are in addition to (not in lieu of) any other agreement (whether in writing or clickwrap) that you enter into with Infinx (now or in the future) relating to the SaaS Services or otherwise for business process outsourcing, including without limitation, any Infinx Prior Authorization Services Order, Master Services Agreement, Statement of Work and/or Business Associate Agreement (each, a “Primary Agreement” and collectively, the “Primary Agreements”). If there is any conflict or inconsistency between any provision of these Terms and any Primary Agreement, the provision of the Primary Agreement shall control. If you do not agree to all of these Terms, or if you are not eligible or authorized to enter into these Terms, then do not access or use the site or any of the SaaS Services. COMPLETING THE REGISTRATION PROCESS OR OTHERWISE ACCESSING OR USING ANY ASPECT OF THE SITES OR SAAS SERVICES WILL CONSTITUTE ACCEPTANCE AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY ALL OF THESE TERMS, WITHOUT MODIFICATION.
Infinx may modify or terminate operation of the Sites (including without limitation, any of the SaaS Services), in whole or in part, at any time.
Customer must be at least 18 years old to visit the Sites. Otherwise, Customer is prohibited from accessing, registering for or using the Sites. Infinx will not collect personally identifiable information from any person that is actually known to it to be a child under the age of 18.
The SaaS Services are available only to users that can form legally binding contracts under applicable law (and in the case of individuals, who are at least 18 years old). Otherwise, Customer is prohibited from accessing, registering for or using any of the SaaS Services. If applicable, any employee of a Customer shall be deemed to be acting on behalf of the Customer at all times.
Infinx may refuse to offer or continue offering the SaaS Services to any person or entity and may change its eligibility criteria from time to time.
Customer must complete the registration process to obtain the SaaS Services and other premium aspects of the Sites. If Customer does not register, then few other parts of the Sites (if any) will be available to Customer.
To register, Customer must provide Infinx with current, complete and accurate information, as more specifically required by the then current registration procedures. By way of illustration and not limitation, Customer may be required to specify a username and password for each individual user, and to provide the name of an individual contact, company name, address, zip code, legitimate electronic mail address and certain additional information. Customer shall maintain and update its registration data from time to time, to ensure that it is always current, complete and accurate.
Upon acceptance, Infinx will provide access credentials to the Customer. Customer is solely responsible for maintaining the confidentiality of its access credentials and other account information, and will be solely liable for any and all activities under its account. Customer shall be responsible for keeping all account information up-to-date. Customer agrees to notify Infinx immediately of any unauthorized use of Customer’s account or any other breach of security.
The following terms have the indicated meanings:
- “AMA” means American Medical Association, a not-for-profit corporation, located at AMA Plaza, 330 North Wabash Avenue, Suite 39300, Chicago, Illinois 60611-5885, USA.
- “AMA Agreement” means the applicable CPT® DISTRIBUTION LICENSE AGREEMENT or similar agreement by and between Infinx and the AMA providing for the use of CPT Editorial Content by Infinx and its users.
- “Analytics” means statistics, metrics and other analyses that are based on or derived from the SaaS Services or Results, which are developed in the aggregate with other data or results or in a manner that does not disclose Customer’s identity or source code;
- “Billable Transaction” means an order request submitted by Customer to Infinx. For purposes of illustration, an order request may constitute an individual insurance verification, benefits verification, benefits estimate, prior authorization request, a Medicare Appropriate Use Criteria (AUC) order or another type of order request. Unless otherwise specified in an Order, a Billable Transaction may include only one (1) CPT code in a request constituting a “Billable Transaction”, such that any request with two (2) or more CPT codes will be treated as a separate “Billable Transaction” for billing and for purposes of determining any turn-around time SLA.
- “Confidential Information” means all non-public information furnished by a party to the other party in performance of these Terms that is clearly identified as confidential in writing at the time of disclosure or which reasonably should be considered as confidential from its nature or from the circumstances surrounding its disclosure or as otherwise considered confidential in accordance with applicable law, including, without limitation, the HIPAA Regulations. The terms of these Terms and the Order shall be considered Confidential Information of Infinx. “Confidential Information” excludes PHI (which is governed by the terms of the BAA)and any information that (a) is or has become generally known to the public through no unlawful act of the recipient; (b) was known to the recipient at the time of its disclosure by the discloser; (c) was independently developed by the recipient without any use of Confidential Information; (d) becomes known to the recipient from a source other than the disclosing party without breach of these Terms and otherwise not in violation of the disclosing party’s rights; or, (e) the recipient is legally compelled to disclose such confidential information, provided that the recipient shall give advance notice of such compelled disclosure to the discloser.
- “Customer Data” means Customer and its employees and representatives’ registration information, and the health information of individuals and other data provided by Customer, which will be stored, analyzed, processed and used by the SaaS Services;
- “CPT Editorial Content” means content from the print publication Current Procedural Terminology, Fourth Edition (“CPT Book”) and the data file(s) of Current Procedural Terminology (“CPT®”) including CPT® Standard, all as available from the AMA (individually and collectively called “CPT Data File”) published by the AMA in the English language as used in the United States, a coding work of nomenclature and codes for reporting of healthcare services.
- “Documentation” means any user instructions, help information and other documentation regarding the SaaS Services that are provided by Infinx to Customer in electronic or other form;
- “Holidays” means generally recognized US Federal holidays (approximately 10 holidays in each calendar year);
- “Order” means a separate Order, Quotation, Sales Acknowledgement or Statement of Work that is signed by Infinx and Customer or otherwise validly issued and accepted by which the parties agree upon the services to be provided and the costs thereof.
- “Platform” means the technology platform developed and/or used by Infinx in providing the Sites, Software and SaaS Services (including all related ideas, concepts, systems, hardware, software, interfaces, tools, utilities, content, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information);
- “Results” means the work products resulting from the SaaS Services that are delivered to Customer by Infinx, which are based on processing the Customer Data;
- “Software” means all software, scripts and HTML or similar codes, if any, that are provided by Infinx to Customer and intended by Infinx for Customer’s use in accessing and/or controlling the SaaS Services (such as, for example, in making queries and requesting reports).
- “Territory” shall mean the following countries: Algeria, Argentina, Australia, Bahamas, Belgium, Bermuda, Brazil, British Virgin Islands, Canada, Cayman Islands, Chile, China, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Guatemala, Hong Kong, India, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Republic of Korea (South Korea), Kuwait, Lebanon, Mexico, New Zealand, Norway, Panama, Philippines, Portugal, Qatar, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, United States and its territories, and Venezuela.
- “User of CPT Editorial Content” means an individual who: (a) accesses, uses, or manipulates CPT Editorial Content as part of the Software or SaaS Services; or, (b) accesses, uses, or manipulates the Software or SaaS Services to produce or enable an output (data, reports, or the like) that could not have been created without the CPT Editorial Content embedded in the Software or SaaS Services even though CPT Editorial Content may not be visible or directly accessible; or, (c) makes use of an output of the Software or SaaS Services that relies on or could not have been created without the CPT Editorial Content embedded in the Software or SaaS Services even though CPT Editorial Content may not be visible or directly accessible.
5. SAAS SERVICES
- SaaS Services. To the extent set forth on an Order, Infinx will provide (i) Prior Authorization process management services using its highly trained team members and Infinx’s proprietary online workflow management platform known as IPAS (Intelligent Prior Authorization Software) as set forth on Addendum A, subject to Customer complying with its responsibilities and providing the deliverables set forth thereto, and/or (ii) Clinical Decision Support Mechanism (CDSM) services solely by providing Customer with access to its proprietary online Infinx CDMS tool subject to Customer complying with its responsibilities and providing the deliverables set forth thereto. Subject to all terms and conditions in these Terms, Infinx grants Customer (without right to sublicense) a nonexclusive, nontransferable right and license to (a) access and use the applicable portion of the SaaS Services, in connection with other services provided to Customer pursuant to the Primary Agreements, through a web-based interface at the Sites, solely for Customer’s internal business purposes and solely within the Territory (unless Customer enters into these Terms under a shrink-wrap or click-wrap license only in which event the use is limited to within the US), and (b) use the Software (in executable format) and Documentation, solely in connection with Customer’s authorized access and use of the SaaS Services. Customer’s access and use of the SaaS Services and Software shall comply with all other conditions set forth herein, at the Sites or in Customer’s Order for the SaaS Services (such as, for example, any requirements regarding data formats, number of users, size limits, time limits or prohibited uses). Access to the SaaS Services requires minimum acceptable equipment and telecommunications capability. Unless otherwise stated by the nature of the Service, the SaaS Services provided by Infinx do not include equipment, peripherals, devices or connectivity between Customer and Infinx for the transmission or receipt of SaaS Services by Customer. Customer may only make copies of the SaaS Services and Software for back up or archival purposes. Customer is prohibited from publishing, distributing via the Internet or other public computer based information system, creating derivative works (including translating), transferring, selling, leasing, licensing or otherwise making available to any unauthorized party the Software or SaaS Services, or a copy or portion of the Software or SaaS Services. Customer is responsible for ensuring that anyone with authorized access to the Software and SaaS Services will comply with the provisions of these Terms.
- Customer Data. Customer hereby grants Infinx a nonexclusive, royalty-free, worldwide right and license to access, copy, store, process, distribute, transmit and otherwise use the Customer Data for the purposes of providing SaaS Services to the Customer and in connection with providing technical support and maintenance for the SaaS Services. Customer also hereby grants Infinx a nonexclusive, royalty-free, worldwide right and license to access, copy, store, process and otherwise use Customer Data in connection with (a) developing, improving, extending and testing existing and potential future Sites, Platforms and SaaS Services and (b) designing, developing and producing Analytics. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and Infinx’s access, possession and use as permitted herein.
- Systems. At its sole cost and expense, Customer is responsible for providing all (a) rights, licenses and permissions necessary for Infinx to receive and use the Customer Data, (b) modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the SaaS Services from Customer’s facility and (c) corresponding backup, recovery, network security and maintenance services (collectively, “Customer Systems”). Customer shall ensure that Customer Systems are compatible with the SaaS Services and comply with all configurations and specifications described in the Primary Agreements, at the Sites or in the Documentation.
- Limitations. Infinx will use commercially reasonable efforts to make the SaaS Services available to Customer at all times, subject to downtimes for scheduled maintenance, upgrades, repairs and emergency outages. Infinx will not be responsible or liable for any failure in the SaaS Services resulting from or attributable to (a) unusually high usage volumes, (b) failures in any telecommunications services, networks or systems, (c) Customer’s or any third party’s negligence, acts or omissions, (d) any force majeure or other cause beyond Infinx’s reasonable control or (e) unauthorized access to the Sites or SaaS Services, breach of firewalls or other hacking.
- Support. Infinx will use commercially reasonable efforts to provide Customer with basic remote training and technical support and updates for the SaaS Services and Software in accordance with its standard practices to handle issues, errors, upgrades and maintenance. Infinx’s IPAS team will be available during US business hours and can be reached directly through its toll-free telephone number as well as through a dedicated e-mail address (which is provided directly to the operations team so that issues are timely addressed). Customer agrees that Infinx may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Customer Data or Customer Systems.
- Quality Assurance. At all times Infinx will make reasonable efforts to respond to and cure all confirmed errors committed by Infinx in its performance of the SaaS Services. In addition, the parties agree to meet no less often than once per quarter to review the overall quality of the SaaS Services, including, without limitation, a discussion of service level performance and accuracy, complaint handling procedures, and other topics as mutually agreed by the parties. The parties agree to share information and data sufficient to support all quality reviews.
- Prior Authorization Determinations. Infinx has no control over, and shall have no liability for, (a) the granting or denial of any prior authorization request submitted to any health-care plan, insurance provider, or any other party or payer, or for remitting, communicating or transmitting information or data provided or input by Customer, (b) acting upon or taking action consistent with pre-submission feedback or communications from any health-care plan, insurance provider, or any other party or payer, or (c) acting upon or taking action consistent with the most recent and/or aggregated policies, criteria, determinations, trends and/or methods of a given health-care plan, insurance provider, or any other party or payer standards with respect to specific types or categories of authorization submissions.
- Beta Services. Infinx may, from time to time, offer services for certain specialties on a “beta” basis where the services have not been deemed fully tested and functional in which case special introductory fees will be quoted. Beta Services will not be subject to any service level guarantees or corresponding credits.
6. AMA AGREEMENT PROVISIONS FOR USE OF CPT EDITORIAL CONTENT.
- Customer acknowledges that the provision of CPT Editorial Content in the Software or SaaS Services is subject to the terms of the AMA Agreement and access to updated CPT Editorial Content is dependent on a continuing contractual relationship between Infinx and the AMA.
- Customer shall accurately count Users for CPT Editorial Content as contained in the Software or SaaS Services and shall report to Infinx the accurately counted number of Users of CPT Editorial Content, as contained in the Software or SaaS Services (in order that Infinx may accurately report and pay royalties to the AMA). Notwithstanding anything in this Agreement to the contrary, Customer grants Infinx permission to provide the AMA with the names of Customer and its users (including Users of CPT Editorial Content) for purposes of complying with the AMA Agreement.
- To the extent possible under the applicable laws, the warranties and liability of the AMA for CPT Editorial Content as contained in the Software or SaaS Services, is limited and CPT Editorial Content, as contained in the Software or SaaS Services, is provided “as is” without any liability to the AMA. The AMA has no liability for consequential or special damages, or lost profits for sequence, accuracy, or completeness of data, or that it will meet Customer’s requirements, and the AMA’s sole responsibility is to make available to Infinx replacement copies of the CPT Editorial Content if the data is not intact; and the AMA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in CPT Editorial Content.
- The AMA is a third-party beneficiary of these Terms and is entitled to enforce directly against Customer all provisions of these Terms pertaining to Customer’s access to or use of CPT Editorial Content, or any provisions that disclaim or limit the AMA’s obligations and liabilities.
- U.S. Government Rights. The Software or SaaS Services includes the CPT Editorial Content which is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. The AMA does not agree to license the CPT Editorial Content to the Federal Government based on the license in FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items) or any other license provision. The AMA reserves all rights to approve any license with any Federal agency.
7. SECURITY AND HIPAA COMPLIANCE.
- In order for Infinx to furnish services to Customer, Customer must at times disclose to Infinx protected health information (“PHI”) governed by the Health Insurance Portability and Accountability Act of 1996, Pub. 104-191 (“HIPAA”), as amended, and the accompanying regulations promulgated thereunder at 45 C.F.R. Parts 160 and 164 and 45 C.F.R. Parts 160, 162 and 164, as amended, and regulations adopted thereunder by the U.S. Department of Health and Human Services as may be amended from time to time, and the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) as may be amended from time to time (collectively, the “HIPAA Regulations”). Accordingly, Infinx and Customer agree to enter into a Business Associate Agreement (“BAA”) in order to comply with the Business Associate requirements of HIPAA and other governmental requirements. Infinx further agrees that if it becomes aware of any breach or violation of patient privacy or security, or of any misuse of Customer’s patient data, originating from Infinx or Vendor’s Affiliate (or any of their personnel) or otherwise relating to the SaaS Services it will immediately notify Customer.
- The parties acknowledge that the HIPAA Regulations may be modified from time to time. The parties specifically agree to take such action as necessary to implement the standards and requirements of the HIPAA Regulations and other applicable laws and regulations relating to the privacy and security of PHI. Further, the parties acknowledge that pricing hereunder is based on legal requirements in effect on the Effective Date (as defined in the Order), and that compliance with additional or different legal requirements may result in changes of scope and pricing. Upon Customer’s request, Infinx agrees to enter into good faith negotiations with Customer concerning the terms of an amendment to these Terms and/or the BAA embodying written assurances consistent with the standards and requirements of the HIPAA Regulations or other applicable laws and regulations relating to the privacy and security of PHI. If the parties fail to reach such an amendment within ninety (90) days after commencement of negotiations, either party may terminate these Terms and all Orders by providing written notice to the other party, effective sixty (60) days after the date of such notice
- Customer acknowledges and agrees that the SaaS Services are provided using cloud-computing resources, which are remote from and may not owned or controlled by Infinx, and that no storage device or data transmission over the Internet can be warranted to be 100% secure. Accordingly, and except as set forth in the BAA between the parties, Infinx cannot guarantee the security of any Customer Data, and Customer hereby agrees that all Customer Data and other information is provided to Infinx at Customer’s own risk. Customer acknowledges that Infinx may find it necessary to disable access to SaaS Services at any time if Infinx has reason to believe that Customer or an affiliate has violated these Terms or presents a security risk after reasonable notice to Customer and an opportunity to remedy the alleged violation. Notwithstanding the foregoing, the terms of any BAA or similar agreement between the parties shall govern and control to the extent of any conflict with the terms of any policies.
- Compliance with Laws. By entering into this Agreement, the Parties specifically intend to comply with all applicable state and federal laws, rules and regulations, as they may be amended from time to time. In the event that any part of this Agreement is determined to violate federal, state, or local laws, rules, or regulations, the Parties agree to negotiate in good faith revisions to the provision or provisions which are in violation so as to remove such violation(s).
Except as required by law, a party receiving Confidential Information of the other party shall not disclose, and shall not permit to be disclosed, such Confidential Information to any third party, including disclosure of any data or document (in any form) that contains or reflects Confidential Information and including any analysis or derivative of the Confidential Information, other than as required by law, as necessary to enforce or perform the SaaS Services under these Terms or to a party’s and its affiliates’ directors, officers, employees, financial and legal advisors, potential investors and investors (including the Vendor’s Affiliate), none of whom may be a competitor of the party whose Confidential Information is being disclosed, who need to know such information, all of whom such party shall advise, in writing at or before the time of the disclosure, of the confidentiality and non-disclosure provisions contained herein.
Except as expressly provided below, Infinx and Customer are each solely responsible for its own costs and expenses related to the Sites and SaaS Services. As set forth in an Order, Customer will be charged fees for other services and, in paying for such services, Customer may receive access to and use certain SaaS Services as described therein without additional charge. Except as set forth in an Order, payment will be due within fifteen (15) days after receipt of the applicable invoice. If invoice is disputed, Customer must provide Infinx with written notice of the specific reasons for such dispute within three (3) business days after receipt of such invoice. Price changes for SaaS Services will be pursuant to an Order. If Customer elects to access or use any fee-bearing Service, Customer agrees to pay all applicable fees resulting from all use of that Service under its account, in the amounts, at the times and subject to any specified conditions. Such fees may be specified as being payable in advance or in arrears; fees may be fixed, contingent or variable (e.g., depending on usage factors); and fees may be specified on a recurring basis (e.g., subscription fees and/or usage fees, which may be payable monthly, quarterly or annually) or non-recurring basis (e.g., one-time activation fees). Unless specified otherwise, all amounts due hereunder shall be paid upon order in US dollars, in immediately available funds by Electronic Funds Transfer, ACH, wire transfer or credit card (payments made by credit card are subject to a 3% service fee), in full without set-off, counterclaim or deduction. Any amount not paid when due shall bear a late payment charge until paid at the rate of 1.0% per month or the maximum amount permitted by law, whichever is less. If any payment under these Terms or any Primary Agreement which is past due, Infinx shall have the right to take whatever action it deems appropriate (including without limitation, suspending or terminating Customer’s account or its access and use of the SaaS Services). Customer agrees to reimburse Infinx for all reasonable costs (including attorneys’ fees) incurred in collecting payments. All payments to Infinx are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be liable for the payment of all such charges (excluding taxes based upon the Infinx’s net income).
11. CUSTOMER CONDUCT.
The Service is provided to Customer only for its internal business purposes. Any unauthorized use of the Service is expressly prohibited (including without limitation, accessing any Service for which the Customer is not authorized, or any use not expressly permitted in these Terms, such as, for example, reselling the SaaS Services). Customer is solely responsible for all acts or omissions that occur under its account, username or password, including the provision of Customer Data to Infinx. Reproducing, copying or distributing any content, materials or design elements from the Sites for any purpose is strictly prohibited without Infinx’s express prior written permission. As a condition of use, Customer agrees that it will not use the SaaS Services for any purpose that is illegal or prohibited by these Terms or any Primary Agreement, or any other purpose not reasonably intended by Infinx. In connection with using the SaaS Services, Customer agrees to abide by all applicable local, state, national and international laws, regulations and rules. Without limiting the foregoing, Customer agrees not to provide any Customer Data, access or use any Service or take any action that, in any manner:
- infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any party;
- imposes an unreasonable or disproportionately large load on Infinx’s computing, storage or communications infrastructure, or attempts to gain unauthorized access to the SaaS Services, other accounts, computer systems or networks connected to the Services, through password mining or otherwise;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Infinx or other third party;
- creates accounts by any automated means or under false or misleading pretenses;
- harvests, scrapes or collects any information from the Sites, other than as authorized by Infinx;
- uses any script, bot or other automated means that only simulates compliance with these Terms or other requirement applicable to the Services; or,
- which, in Infinx’s reasonable discretion, adversely affects the performance or function of the Services or interferes with the ability of other authorized parties to access the Services
Infinx may, at its sole discretion, immediately suspend or terminate any Customer’s account or access to the Services, without credit, should its conduct fail (or appear to fail) to strictly conform to any provision above or if, in Infinx’s sole discretion, the performance, integrity or security of the Services is in danger of being compromised as a result of any events or circumstances.
Neither party shall solicit for employment (except for general solicitations such as advertisements, job fairs, etc.) or hire as employees or retain as independent contractors the other party’s employees or independent contractors which have been involved in the performance of the Services until one (1) year after the end of the Services. In the event of any such employment or retention, the party who hires or retains such a person shall pay to the other party an amount equal to the greater of (i) two hundred percent (200%) of the prior annual total compensation of such employee, or (ii) twenty thousand dollars ($20,000).
13. THIRD PARTY SITES
Customer may access the Sites from, and link from the Sites to, other websites on the Internet that are not under Infinx’s control. Customer acknowledges and agrees that Infinx is not responsible for the accuracy, legality, appropriateness or any other aspect of the content or function of such websites. The inclusion of any such link does not imply endorsement of the website by Infinx or any association with its operators. Additional or different terms and conditions may apply when Customer accesses and uses other websites.
14. PROPRIETARY RIGHTS.
- Customer Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall own and retain all right, title and interest (including all patent rights, copyright rights, trade secret rights, trademark rights and other intellectual property and proprietary rights) in and to the Customer Data and Results, excepting any Feedback.
- Infinx Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Infinx (and its licensors) shall own retain all rights, title and interests (including all patent rights, copyright rights, trade secret rights, trademark rights and other intellectual property and proprietary rights) in and to the Sites, Services, Platform, Software, Documentation and Analytics. All comments, inputs, suggestions, and feedback regarding or relating to any of Infinx’s products or services submitted by Customer to Infinx (“Feedback”) shall be considered Infinx’s property and Customer agrees to assign to Infinx, at no charge, all world-wide rights, title and interest in copyrights and other intellectual property rights in and to the Feedback. Infinx shall be free to use and disseminate such Feedback on an unrestricted basis for any purpose in connection with its products and services.
- Restrictions. Customer shall not, directly or indirectly (a) use any Software or other information gained from the Sites to create any software, platform or documentation that is similar to any of the Software, Platform or Documentation, (b) attempt to access any Platform component or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Platform or (except and only to the extent these restrictions are expressly prohibited by applicable statutory law) the Software, (c) encumber, sublicense, distribute, transfer, rent, lease, lend or use the Software in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use the Software or Results, or allow the transfer, transmission, export or re-export of all or any part of the Software, Results or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.
- General Learning. Customer agrees that Infinx is free to use and disclose the Analytics and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer); provided, Infinx will not use or disclose any Customer Data.
- Term. The term of these Terms shall begin as of the first day that Services are performed by Infinx pursuant to an Order (which date may be prior to, as of, or after the Effective Date) and shall continue indefinitely until terminated pursuant to the provisions below.
- Termination Without Cause. At any time that no Orders are outstanding, either Party may terminate these Terms with or without cause at any time by delivering ten (10) days prior written notice to the other Party. Customer and its employees and other representatives may stop accessing and using the Sites and Services, at any time, with or without cause, with or without notice.
- Termination for Default/Breach. In the event of a material default or breach hereunder by either Party, the other Party may terminate these Terms, including any outstanding Orders, by delivering written notice to the other Party describing the default/breach and such default/breach remains uncured thirty (30) days thereafter (except for defaults based on a failure to pay fees for Services due hereunder which must be cured within five (5) business days).
- Termination for Bankruptcy. Either Party may terminate these Terms immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debt when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
- Surviving Sections. Upon the termination of these Terms and any Orders for any reason, all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations), and Sections 1, 4, 6, 8, 10 12,and 14-23, inclusive, and any other provisions whose survival is implied shall survive termination, and the Parties’ rights and responsibilities thereunder, shall remain in full force and effect. After termination or any continuous 3-month period of inactivity, Infinx has no obligation to maintain any content in Customer’s account or to transfer or export any Customer Data or other Customer information, data or content to Customer or any other User or third party. The fees to be charged, if any, for any transfer or export (in report dump format) will be as quoted based on then current rates
- Suspension for Non-Payment. In the event of the failure of Customer to timely make any payments due hereunder, Infinx may suspend performance of all or any portion of the Services, including any effective Orders, by delivering written notice to Customer describing the failure and such failure remains uncured ten (10) days thereafter.
16. LIMITED WARRANTIES; DISCLAIMER OF WARRANTIES.
- Infinx Representations. Infinx represents, warrants and covenants to Customer (but which shall not be applicable during any trial or pilot period) that: (i) The Services shall be performed by Infinx at Infinx’s facilities; (ii) Infinx shall provide Customer with daily, weekly and monthly reports as agreed by the parties; (iii) Infinx will perform the Services in a manner that is compliant with the HIPAA Regulations; (iv) The work product resulting from the provision of the Services and Software hereunder (“Infinx’s Work Product”) shall not violate or in any way infringe, to Infinx’s knowledge, upon any third party intellectual or proprietary rights; (e) all Services will be performed by appropriately trained and experienced individuals who will be supervised in such a manner so as to maintain Infinx’s compliance with the requirements of these Terms and any Order; and, (v) neither Infinx nor its agents (1) have been convicted of a federal health care crime, (2) have been excluded from participation in any federal health care programs; or (3) is currently under investigation or involved in any legal proceeding which may lead to such a conviction or exclusion. Infinx agrees that, as between the parties, Customer shall exclusively own any data and information (including Customer’s Confidential Information and patient information) provided by or on behalf of Customer in connection with the Services, including any derivative works containing such data and information.
- Customer Representations. Customer represents, warrants and covenants to Infinx that: (i) Customer shall provide all information/data and systems access necessary for Infinx to perform the Services, and any information/data shall be accurate, truthful and complete; (ii) The data, materials and components provided by Customer to Infinx hereunder, including, without limitation, Customer’s software, methods, controls, codes and other embodiments of Customer’s intellectual property, shall not violate or in any way infringe, to Customer’s knowledge, upon any third party intellectual or proprietary rights; (iii) Customer shall diligently review and assess the Infinx Work Product as it is provided to Customer and promptly provide feedback and requests for any necessary corrections or further reviews; and (iv) neither Customer nor its agents (1) have been convicted of a federal health care crime, (2) have been excluded from participation in any federal health care programs; or (3) is currently under investigation or involved in any legal proceeding which may lead to such a conviction or exclusion.
- Service Level Guarantees. The SLA Addendum, attached hereto as Addendum B and incorporated by this reference, provides certain service level guarantees and corresponding credits to Customer.
- No Other Guarantees or Warranties. EXCEPT AS SET FORTH IN THIS SECTION 16, THE SITES AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE SITES AND SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. INFINX AND ITS AFFILIATES, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICES WILL BE SECURE, ERROR-FREE, UNINTERRUPTED OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED.
17. LIMITATIONS OF LIABILITY.
- Customer agrees that Infinx shall not be responsible or liable for any unauthorized access, alteration or use of Customer’s account, transmissions or data, whether accomplished via the Sites or Customer Systems.
- IN NO EVENT SHALL INFINX (OR ITS AFFILIATES, LICENSORS AND SUPPLIERS) BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITES OR SERVICES, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS PAID TO INFINX BY CUSTOMER DURING THE PRIOR 6-MONTH PERIOD, OR THE AMOUNT SPECIFIED IN AN ORDER, EVEN IF INFINX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
- (c) INFINX SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH REGARD TO ACTIONS OF THIRD PARTIES (OTHER THAN VENDOR’S AFFILIATE), INCLUDING BUT NOT LIMITED TO DISPUTES CONCERNING PAYMENT OF CLAIMS, ELIGIBILITY STATUS OF A PATIENT, AUTHORIZATIONS FOR CREDIT, DEBIT OR CHECK TRANSACTIONS, PRE-AUTHORIZATION, PRE-CERTIFICATION, OR OTHER PAYER-SUBMITTED INFORMATION.
Customer agrees to (a) defend Infinx and its affiliates, licensors and suppliers, and their employees, contractors, officers, directors and representatives against any action or suit by a third party that arises out of any transaction or other dealings with any other user, or other third party in which Customer is involved, Customer’s use or misuse of the Service, or Customer’s breach of any of its representations, warranties or covenants under these Terms or the Primary Agreements and (b) indemnify the indemnitees for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such claim. Infinx reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which case Customer will provide Infinx with all reasonable information, cooperation and assistance to defend, compromise or settle the claim.
19. INTERNATIONAL USE.
Infinx makes no representation that the Sites or Services are appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. Accessing or using the Services from other locations as may be permitted hereunder may be done at Customer’s own initiative and Customer will be responsible for compliance with all local laws.
20. DISPUTES; CHOICE OF LAW AND FORUM.
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Customer and Infinx agree that any claim or cause of action arising out of or related to these Terms, Sites or Services must commence within one (1) year after the claim or cause of action arose; otherwise, such cause of action is permanently barred. These Terms shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms. Customer expressly agrees that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms or use of the Sites or Services shall be filed only in the state or federal courts located in the County of Santa Clara, California, USA, and Customer further agrees and submits to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. Customer is not authorized to use the Sites or Services in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
21. GENERAL PROVISIONS.
- These Terms (including the Policies, and together with the Primary Agreements) are the entire agreement between Customer and Infinx with respect to the Sites and Services, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Infinx with respect to the Services. No additional or different pre-printed standard terms or conditions contained in any quotation, purchase order, acknowledgement, invoice, or other form or correspondence submitted by either party shall be of any force or effect with respect to these Terms. If any provision of these Terms is found to be unenforceable, invalid or otherwise applicable laws, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable
- Customer’s rights and obligations under these Terms are personal to Customer, and are not assignable, transferable or sublicensable by Customer except with Infinx’s prior written consent other than to its affiliated entities or to a successor-in-interest or surviving entity in connection with a sale, merger or acquisition. Infinx may assign, transfer, subcontract or delegate these Terms and/or any or all of its rights and obligations hereunder without consent.
- All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. The failure of either party to enforce its rights under these Terms at any time or for any period (including without limitation, Infinx’s failure to enforce any use restriction) will not be construed as a waiver of such rights
- No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Terms, and neither party has any authority of any kind to bind the other in any respect.
- All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
22. COPYRIGHT AND TRADEMARK NOTICES.
These Terms and all content at the Site provided by Infinx are copyright © 2019-2021 TIS International (US), Inc. and/or its licensors or suppliers. INFINX is a trademark of Infinx. Current Procedural Terminology (“CPT®”) is copyrighted by the AMA and that CPT is a registered trademark of the AMA. The names and logos of other companies, products and services mentioned at the Site may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved. All notices of proprietary rights, including trademark and copyright notices, must appear on all permitted back up or archival copies made.
Infinx reserves the right, at its sole discretion, to modify or replace these Terms (including any Policy), in whole or in part, at any time. Infinx will use reasonable efforts to notify Customer at least 30 days in advance of the effective date of any material change. Change notices may be communicated by postings at the Sites and/or electronic mail. In any case, Customer should periodically check these Terms for changes. Continued use of the Sites or any of the Services following notice of any change constitutes Customer’s acceptance of that change. These Terms may not otherwise be amended, except by a written agreement executed by Customer and Infinx.
Infinx SaaS Terms and Conditions, Version 1.3.1, Promulgated June, 2021