instantvob Platform Terms and Conditions

Welcome to the instantvob Platform. These Terms and Conditions will serve as the agreement (“Agreement”) between instantvob and Customer,  each a “Party” and together the “Parties.”

1.           Basic Relationship

a.            Solutions and Services. instantvob offers a variety of proprietary solutions and professional services (the “Solutions” and “Services”), which are delivered through the Platform. Solutions consist of functionality delivered by instantvob’s Intellectual Property, and Services are provided by instantvob personnel trained in its proprietary business methods. The Solutions and Services to be provided to Customer are those set forth in the applicable Order Form(s), and are accessed via the Platform. Solutions may include or rely upon functionality provided by Third Party Solutions. The Order Forms are incorporated into and governed by this Agreement and any documents referenced herein. Solution names may change at instantvob’s discretion, and Customer is responsible for tracking any such changes as provided in the Documentation.

b.            Performance by instantvob. instantvob warrants that the Solutions, as made available or delivered, will substantially conform to the Documentation provided for such Solutions. instantvob personnel will provide Services in a professional and workmanlike manner and respond to any reasonable inquiry or request by Customer related to the Solutions or Services. To the extent applicable, the Parties’ respective performance under this Agreement will be consistent with the compliance requirements of the Health Insurance Portability and Accountability Act of, as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH Act) and any subsequent amendments (collectively, “HIPAA”).

c.            Customer Resources and Cooperation. Customer will: (i) allocate sufficient resources on a timely basis to perform its obligations under each Order Form and this Agreement; (ii) provide instantvob with reasonable access to its employees as necessary for instantvob to perform its duties and provide the Solutions and Services; and (iii)ensure that its personnel provide accurate, timely, and full responses to any reasonable inquiry or request by instantvob. Each Party shall designate a representative who will be reasonably available during regular business hours to confer together to promote efficient performance and clear communication regarding this Agreement.

d.           Order Forms. Services under this Agreement will be defined in sequentially numbered Order Forms executed by the Parties. Each Order Form will detail the Services to be provided, the location, rates, duration, and any amendments necessary to this Agreement. Unless otherwise agreed in writing, instantvob’s time and materials rates for Services will be its then-current rates as provided in the Documentation. Each executed Order Form is incorporated herein by reference and forms a part of this Agreement. Terms and conditions in an Order Form will supersede any conflicting terms in this Agreement to the extent necessary for the implementation of the Order Form or accomplishment of the specific project assignment defined therein; provided, however, that modification of any Fundamental Provisions requires specific reference to the modified provision.

2.           Access and License; Restrictions

a.            Access. Subject to the terms of this Agreement and the applicable Order Form, and timely payment of all applicable Fees, instantvob grants Customer and its End Users a non-exclusive, non-transferable right to access and use the Platform, solely through Authorized Users, during the applicable Order Form term and solely for Customer’s internal revenue cycle management activities on behalf of its End Clients (“Permitted Use”). Access to the Platform is provided via cloud-based means, including web-based portal, API, or other methods as specified in the Documentation or the applicable Order Form.

b.            License to Output. instantvob grants Customer a non-exclusive, worldwide, royalty-free license during the Term to use, display, and reproduce Output solely for the Permitted Use. Customer may not resell, sublicense, or otherwise distribute Output except as an integral part of its revenue cycle management services to End Clients, and not as a standalone product or service.

c.            Restrictions. Customer shall not, and shall not permit any third party to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying structure, ideas, know-how, or algorithms relevant to the Platform, Services, or any software, Documentation, or data related to the Platform or Services; (ii) copy, frame, mirror, modify, or create derivative works of any part of the Platform, Services, or Documentation, except as expressly permitted herein; (iii) use the Platform, Services, or Output to develop or offer a competing product or service; (iv) remove, obscure, or alter any proprietary notices or legends contained in the Platform, Services, or Documentation; (v) access or use the Platform or Services for purposes of benchmarking, competitive analysis, or for the benefit of a third party; (vi) interfere with or disrupt the integrity, security, or performance of the Platform or Services; (g) use the Platform, Services, or Output in violation of any applicable law, regulation, or third-party rights, including but not limited to HIPAA; (vii) share, disclose, or otherwise permit the use of any Platform or Services credentials by anyone other than the individual to whom such credentials are issued; or (viii) integrate, connect, or otherwise interface the Platform with any third-party system, software, or service except as expressly permitted in writing by instantvob or as set forth in the applicable Order Form.

d.           End-User Terms; Flow-Down. Customer shall ensure that each Authorized User and End Client is bound by Terms of Use upon registration, which shall include at a minimum the End-User Terms identified in Exhibit D. Customer shall flow down the End-User Terms to its End Clients and ensure their compliance. Customer remains responsible for all acts and omissions of its Authorized Users and End Clients as if such acts or omissions were those of Customer.

e.            Changes; Updates. instantvob may make updates, enhancements, or modifications to the Services, including features, workflows, and interfaces, provided that such changes do not materially diminish the core functionality of the Service line purchased. instantvob may deprecate features upon at least ninety (90) days’ prior written notice to Customer, where reasonable.

f.             Service Level Agreement. The Parties agree that the Service Level Agreement (SLA) attached as Exhibit B is incorporated by reference into this Agreement and governs the service levels applicable to the Services. Any service credits provided under the SLA shall be Customer’s sole and exclusive remedy for any failure to meet the service levels set forth therein.

3.           Implementation; Support; Security

a.            Implementation. instantvob will perform Implementation Services as described in the applicable Order Form. The Initial License Fee is due upon execution of the Order Form and is non-refundable once instantvob commences work.

b.            Support; Service Levels. instantvob will provide Support Services and maintain service levels in accordance with the terms set forth in the applicable Order Form, and as further described in the SLA.

c.            Security. instantvob will maintain an information security program with administrative, physical, and technical safeguards appropriate to the nature of the Services and the sensitivity of Customer Data, designed to protect the confidentiality, integrity, and availability of Customer Data processed and stored within the Platform, prevent unauthorized access, and comply with HIPAA and the Business Associate Agreement.

d.           Subprocessors. instantvob may use affiliates and/or subprocessors to perform its obligations, provided that instantvob remains responsible for their compliance with the terms of this Agreement. A current list of material subprocessors will be made available to Customer upon request.

e.            Business Associate Agreement. To the extent instantvob is a Business Associate to Customer under HIPAA or the HITECH Act, the Parties will execute and comply with the Business Associate Agreement (“BAA”) attached as Exhibit C and incorporated herein by reference. In the event of a conflict between this Agreement and the BAA with respect to PHI, the BAA shall control.

4.           Fees; Invoicing; Taxes; Audit

a.            Fees. Customer shall pay to instantvob all fees for the Solutions and Services as set forth in the applicable Order Form (the “Fees”), including: (a) the Initial License Fee; (b) per-Transaction fees for instantvob and iBot; (c) any committed minimums; and (d) any other fees specified in the Order Form. Unless otherwise stated, all Fees are stated and payable in U.S. Dollars.

b.            Pricing. The applicable Order Form will specify Customer’s per-Transaction fees for each Service line. For clarity, instantvob and iBot are priced on a usage basis per Transaction.

c.            Invoicing; Payment. Unless otherwise specified in the applicable Order Form, instantvob will invoice Customer monthly in arrears for usage-based Fees and in advance for recurring or one-time Fees. Customer shall pay all undisputed invoices within thirty (30) days of the invoice date. Any late payment shall be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed under applicable law. Customer shall reimburse instantvob for all reasonable costs of collection, including attorneys’ fees, for undisputed overdue amounts.

d.           Disputed Amounts. Customer must notify instantvob in writing of any good-faith dispute regarding an invoice within fifteen (15) days of the invoice date, providing reasonable detail of the dispute. The Parties will work in good faith to resolve any such dispute. A dispute related to a portion of the Fees shall not relieve Customer from paying any other undisputed amounts in accordance with this Agreement.

e.            Suspension for Non-Payment. If Customer fails to pay any undisputed amounts when due, instantvob may, upon written notice, suspend the provision of Services if such amounts remain unpaid for more than three (3) days after notice of non-payment. Suspension of Services shall not relieve Customer of its payment obligations under this Agreement.

f.             Taxes. Fees are exclusive of all applicable taxes. Customer shall be responsible for all sales, use, value-added, goods and services, and similar taxes or charges assessed in connection with the Solutions and Services, excluding taxes based on instantvob’s net income. If Customer is tax-exempt, it shall provide a valid exemption certificate to instantvob.

g.            Usage Verification. instantvob will maintain transaction records to substantiate any volume or transaction-based Fees hereunder. Upon reasonable notice and not more than twice in any twelve (12) month period, instantvob may audit Customer’s usage of the Services solely for purposes of metering and invoicing accuracy. Such audits shall be conducted in a manner designed to minimize disruption and maintain the confidentiality of Customer’s information.

5.           Term; Termination; Effect of Termination

a.            Term. Unless earlier terminated as set forth herein, the term of this Agreement will begin on the Effective Date set forth in the first Order Form and continue for an initial period of three (3) years (“Initial Term”). Thereafter, the Agreement will automatically renew for successive twelve (12) month periods (each a “Renewal Term” and with the Initial Term, simply the “Term”) unless either Party provides at least sixty (60) days’ prior written notice of non-renewal before the expiration of the Initial Term or the then-current Renewal Term.

b.            Termination for Cause. Either Party may terminate this Agreement or any affected Order Form in the event of a material breach by the other Party, by providing written notice describing the breach. The breaching Party will have thirty (30) days from receipt of such notice to cure the breach (ten (10) days for payment breaches). If the breach is not cured within the applicable period, the Agreement or relevant Order Form may be terminated as specified in the notice.

c.            Termination for Convenience by instantvob. instantvob may terminate this Agreement or any Order Form for convenience upon thirty (30) days’ prior written notice to Customer.

d.           Termination for Convenience by Customer; Removal or Termination of Individual Facility or End Client. Customer may terminate any Order Form, or remove or terminate access for an individual facility location or End Client, at any time for convenience by providing thirty (30) days’ prior written notice to instantvob. Upon such termination or removal, Customer shall pay an early termination fee equal to the average monthly usage fees for the prior six (6) months (or the full term if less than six months have elapsed) multiplied by the number of months remaining in the then-current term, or any remaining committed minimums for the term, whichever is greater. No refunds will be provided for prepaid or minimum Fees (or, for a Facility or End Client, for prepaid or minimum Fees attributable to the removed or terminated Facility or End Client).

e.            Termination Due to Change in Law. Either Party may terminate this Agreement or any affected Order Form upon thirty (30) days’ prior written notice if a change in applicable law or regulation makes performance of the Agreement illegal or commercially impracticable for that Party. In such event, neither Party shall be liable to the other for any damages resulting solely from such termination, except that Customer shall remain responsible for payment of all fees accrued up to the effective date of termination.

f.             Suspension for Risk. instantvob may suspend the Services immediately upon written notice if it reasonably determines that suspension is necessary to address a security risk, prevent harm, or comply with applicable law or regulation. instantvob will restore access promptly once the underlying issue is resolved.

g.            Effect of Termination. Upon expiration or termination of this Agreement or any Order Form for any reason: (i) all rights and licenses granted to Customer to use the applicable Services will immediately terminate; (ii) Customer shall pay all Fees and other amounts accrued or owed as of the effective date of termination; (iii) instantvob will, upon written request, make available to Customer a copy of Customer Data in a commercially reasonable format for a period of thirty (30) days following termination; and (iv) any provisions of this Agreement which by their nature should survive termination, including but not limited to confidentiality, intellectual property, payment, indemnification, and limitation of liability, shall survive and continue in full force and effect.

6.           Confidentiality; Non-Solicitation; Data Use

a.            Confidential Information. “Confidential Information” means any non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with this Agreement that is identified as confidential or that should reasonably be understood to be confidential, including but not limited to product plans, pricing, business processes, systems, security, client lists, End Client identities, and Customer Data. Confidential Information does not include information that: (i) is or becomes publicly available through no breach of this Agreement by the Receiving Party; (ii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iii) is rightfully obtained by the Receiving Party from a third party without restriction and without breach of any obligation of confidentiality.

b.            Use and Protection. The Receiving Party will: (i) use the Disclosing Party’s Confidential Information solely as necessary to perform its obligations or exercise its rights under this Agreement; (ii) not disclose such Confidential Information to any third party except to its and its affiliates’ officers, directors, employees, legal and financial advisors, and subprocessors who have a need to know such information for purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein; and (iii) protect the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.

c.            Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law, regulation, subpoena, or court order, provided that, to the extent legally permitted, the Receiving Party gives prompt written notice to the Disclosing Party and cooperates, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy.

d.           Non-Solicitation of End Clients. During the Term and for twelve (12) months thereafter, instantvob will not knowingly solicit End Clients, identified to instantvob solely through Customer’s Confidential Information or Customer Data, to purchase revenue cycle management services that materially compete with Customer’s then-current services. This restriction does not apply to: (i) generalized advertising not targeted at specific End Clients; (ii) interactions with End Clients that were instantvob’s customers or active prospects prior to disclosure by Customer, as evidenced in instantvob’s written records; or (iii) End Clients that independently contact instantvob without instantvob’s solicitation and without use of Customer’s Confidential Information or Customer Data.

e.            Feedback. Customer may provide suggestions, comments, or other feedback regarding the Services (collectively, “Feedback”). instantvob may use such Feedback without restriction, and Customer assigns to instantvob all right, title, and interest in and to such Feedback.

f.             Aggregated and Usage Data. instantvob may collect and use Usage Data and Aggregated Data to operate, maintain, secure, and improve the Services and to develop new products and services, provided that such data does not identify Customer, any End Client, or any individual.

7.           Data Privacy; HIPAA

a.            Compliance. Each Party will comply with HIPAA and all applicable federal, state, and local privacy laws in connection with its performance under this Agreement, to the extent applicable to its role. If applicable, the Parties agree to comply with the BAA. For personal data that does not constitute PHI, each Party will comply with all applicable privacy and data protection laws as they relate to data processed and stored within the Platform.

b.            Breach Notification. instantvob will notify Customer without unreasonable delay, and in any event within the timeframes required by law, after becoming aware of a Security Incident or breach of PHI as defined in the BAA. instantvob will cooperate with Customer in any investigation, remediation, and required notifications related to such incidents.

c.            Data Location; Transfer. instantvob may process and store data in the United States and in other jurisdictions where instantvob or its authorized subprocessors operate, subject to applicable law and the terms of the BAA.

8.           Intellectual Property; Ownership

a.            instantvob Intellectual Property. The Platform, Services, including without limitation instantvobTM, iBotTM, all software, algorithms, proprietary workflows, prompts, questions, processes, Documentation, user interfaces, and all enhancements, updates, modifications, and derivative works thereof, and all underlying technology and related intellectual property rights, are and shall remain the sole and exclusive property of instantvob and its licensors. All rights, title, and interest in and to the Platform (including any enhancements, modifications, and underlying technology) are retained exclusively by instantvob. Customer and its End Users are granted only a limited, non-exclusive license to access and use the Platform as expressly set forth in this Agreement. This Agreement does not constitute a sale of any software, technology, or intellectual property of instantvob. Customer shall not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices on the Platform, Services, Documentation, or any materials provided by instantvob.

b.            Customer Intellectual Property. As between the Parties, Customer retains all rights, title, and interest in and to Customer Data and Customer’s trademarks and logos.

c.            Derivative Works and Inventions. Any derivative work, enhancement, modification, or invention created by or on behalf of Customer or its agents that is based upon, uses, or incorporates any part of the Services, Documentation, or other instantvob intellectual property, whether alone or in combination with other materials, shall be deemed a derivative work of instantvob’s intellectual property and shall be owned exclusively by instantvob. Customer hereby assigns, and shall cause its employees, agents, and representatives to assign, all right, title, and interest in and to any such derivative works or inventions to instantvob and agrees to cooperate as necessary to effectuate such assignment.

d.           License to Host Customer Data. Customer grants instantvob a limited, non-exclusive, non-transferable, worldwide license to host, copy, process, transmit, and display Customer Data, as well as any data input into the system by Customer’s customers or End Users, solely as necessary to provide the Services and Support, to comply with applicable law, and as otherwise permitted under this Agreement and the BAA.

e.            Output Rights. Subject to the limited license expressly granted to Customer herein, instantvob retains all ownership and intellectual property rights in and to the Services and any Output generated thereby. Customer’s rights in Output are limited to the license expressly granted in this Agreement and do not include any rights to the underlying software, algorithms, or methodologies.

f.             No Implied Rights. Except as expressly set forth in this Agreement, no rights or licenses are granted to Customer by implication, estoppel, or otherwise, including any rights to instantvob’s intellectual property or Confidential Information.

9.           Warranties; Disclaimers

a.            Mutual Warranties. Each Party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (ii) it has the full power and authority to enter into and perform its obligations under this Agreement; and (iii) its execution, delivery, and performance of this Agreement will not violate any other agreement to which it is a party.

b.            instantvob Warranties. instantvob warrants that: (i) the Services, as made available or delivered, will materially conform to the Documentation provided for such Services; (ii) Implementation and Support Services will be performed in a professional and workmanlike manner by qualified personnel; (iii) the Services, as provided by instantvob, do not knowingly contain malicious code designed to damage or exfiltrate data; and (iv) instantvob will comply with the BAA and all applicable laws in delivering the Services.

c.            Customer Warranties. Customer warrants that: (i) it has obtained and will maintain all necessary consents and rights to submit Customer Data and to enable instantvob’s use and processing of such data in accordance with this Agreement; (ii) it will use the Services only in accordance with the Documentation, End-User Terms, and all applicable laws and regulations; and (iii) it will ensure that its Authorized Users and End Clients comply with this Agreement and the End-User Terms.

D.           Disclaimer. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, THE PLATFORM, SERVICES, DOCUMENTATION, AND ANY PROCESSED WORK OR OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” INSTANTVOB DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE PLATFORM, SERVICES, OR OUTPUTS WILL BE ERROR-FREE, UNINTERRUPTED, OR MEET CUSTOMER’S OR ANY THIRD PARTY’S REQUIREMENTS. CUSTOMER’S SOLE REMEDY FOR ANY DEFECTIVE PROCESSED WORK SHALL BE TO REQUIRE INSTANTVOB TO REPROCESS THE UNDERLYING CUSTOMER DATA, IF APPLICABLE. INSTANTVOB SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE UNDER THIS AGREEMENT TO THE EXTENT SUCH FAILURE OR DELAY IS CAUSED BY THE ACTS OR OMISSIONS OF ITS THIRD-PARTY HOSTING PROVIDERS, INCLUDING BUT NOT LIMITED TO AMAZON WEB SERVICES (AWS) OR ANY OTHER CLOUD SERVICE PROVIDER.

e.            Benefit Verification/Insurance Eligibility Disclaimer. “Benefit Verification/Insurance Eligibility” services are defined as the effort by instantvob to obtain information regarding available coverage for Patient Services from a third party. All Benefit Verification/Insurance Eligibility requests received shall be completed within a reasonable time frame. instantvob does not guarantee a particular time frame for completion of Benefit Verification/Insurance Eligibility requests but will make reasonable efforts to expedite and complete requests as soon as possible. In the event a request cannot be completed due to the inability to contact the necessary third party, such request will be completed as would be immediately feasible. INSTANTVOB MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY BENEFIT VERIFICATION/INSURANCE ELIGIBILITY INFORMATION OBTAINED FROM THIRD-PARTY PAYERS OR OTHER SOURCES. INSTANTVOB SHALL NOT PROVIDE ANY ADVICE, INTERPRETATION, OPINION, OR OTHERWISE REGARDING THE CONTENT OF ANY BENEFIT VERIFICATIONS/INSURANCE ELIGIBILITY. CUSTOMER ACKNOWLEDGES THAT OUTPUT PROVIDED BY INSTANTVOB IS INFORMATIONAL ONLY, IS NOT A GUARANTEE OF PAYMENT OR COVERAGE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ALL BILLING, COLLECTION, AND REVENUE DECISIONS MADE BASED ON SUCH OUTPUT. INSTANTVOB SHALL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING FROM CUSTOMER’S RELIANCE ON BENEFIT VERIFICATION/INSURANCE ELIGIBILITY OUTPUT, INCLUDING WITHOUT LIMITATION ANY DENIED CLAIMS, UNDERPAYMENTS, OR FAILURE TO COLLECT REVENUE.

10.        Indemnification

a.            By instantvob. instantvob shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents from and against any losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim alleging that the Services, as provided by instantvob and used by Customer in accordance with this Agreement, infringe any U.S. patent, copyright, or trademark, or misappropriate a trade secret. If such a claim arises, instantvob may, at its option and expense: (i) procure for Customer the right to continue using the Services; (ii) modify or replace the Services so that they become non-infringing; or (iii) if neither (i) nor (ii) is commercially reasonable, terminate the affected Order Form and refund any prepaid, unused Fees for the terminated portion. instantvob shall have no obligation for claims to the extent arising from: (1) Customer’s or any Authorized User’s misuse, modification, or combination of the Services with non-instantvob products, services, or data; (2) use of Output beyond the scope of this Agreement; or (3) Customer Data.

b.            By Customer. Customer shall indemnify, defend, and hold harmless instantvob and its officers, directors, employees, and agents from and against any losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any claim resulting from: (i) Customer Data (including claims by End Clients or individuals); (ii) Customer’s or any Authorized User’s use of the Services in violation of this Agreement, the End-User Terms, or applicable law; or (iii) Customer’s revenue cycle management services and representations to End Clients.

c.            Indemnification Procedure. The indemnified Party must: (i) promptly notify the indemnifying Party in writing of any claim for which indemnification is sought (provided that failure to provide prompt notice shall not relieve the indemnifying Party of its obligations except to the extent materially prejudiced thereby); (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that any settlement fully releases the indemnified Party and does not impose obligations other than payment of money covered by the indemnifying Party); and (iii) provide reasonable cooperation at the indemnifying Party’s expense.

11.        Limitation of Liability

a.            Exclusion of Certain Damages. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS INTERRUPTION, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

b.            Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, THE ENTIRE CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO INSTANTVOB UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

c.            Excluded Claims. “Excluded Claims” means: (i) Customer’s payment obligations under this Agreement; (ii) a Party’s breach of its confidentiality obligations (excluding the non-solicitation covenant, which remains subject to the liability cap); (iii) Customer’s breach of the use restrictions or violation of the End-User Terms; and (iv) a Party’s indemnification obligations under this Agreement, provided that instantvob’s indemnification liability for intellectual property infringement shall be capped at two (2) times the amount set forth in the Liability Cap above.

d.           Allocation of Risk. The Parties acknowledge and agree that the Fees and other terms of this Agreement reflect the allocation of risk set forth herein.

12.        Compliance; Healthcare Safeguards

a.            Anti-Kickback; Referrals. Each Party represents and warrants that it will not offer, pay, solicit, or receive any remuneration, in cash or in kind, directly or indirectly, to induce or reward referrals or the ordering of any item or service reimbursable by a federal healthcare program in violation of the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) or any similar state or local law. All Fees under this Agreement are for bona fide services provided at fair market value and are not determined in a manner that takes into account the value or volume of any referrals or business otherwise generated between the Parties.

b.            No Medical Advice. The Services are limited to providing verification of benefits and related outputs and do not constitute or provide medical, legal, coding, or billing advice. Customer is solely responsible for all decisions made based on Output and for independently verifying payer coverage and eligibility.

c.            Trade Controls; Sanctions. Each Party will comply with all applicable export, re-export, and sanctions laws and regulations in connection with its activities under this Agreement.

13.        Insurance

instantvob shall maintain commercially reasonable insurance coverage, including: (a) technology errors and omissions insurance with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate; (b) billing as a service errors and omissions insurance with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate; (c) cyber/privacy liability insurance with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate; and (d) general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. Upon Customer’s written request, instantvob will provide certificates of insurance evidencing such coverage.

14.        Publicity

instantvob may identify Customer as a customer in its marketing and promotional materials, including customer lists, provided that any use of Customer’s name or logo will comply with Customer’s reasonable trademark usage guidelines. Neither Party shall issue any press release or other public announcement regarding this Agreement without the prior written consent of the other Party.

15.        General

a.            Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets, provided that the assignee is not a direct competitor of the non-assigning Party and assumes all obligations under this Agreement.

b.            Governing Law; Venue. This Agreement shall be governed by, subject to, and construed in accordance with the laws of Florida, without regard to its conflicts of law provisions. Any action or suit related to this Agreement shall be brought exclusively in the United States District Court for the Southern District of Florida, or the state or courts located in Palm Beach County, Florida, if there is no federal jurisdiction and each Party consents to the personal jurisdiction of such courts. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL FOR A DISPUTE RELATED TO THIS AGREEMENT.  In the event a dispute arises, each Party agrees to meet in good faith for a period of thirty (30) days to try and resolve such dispute prior to the filing of any action. Notwithstanding the foregoing, either Party may seek injunctive relief or other equitable remedies in any court of competent jurisdiction to prevent or remedy any actual or threatened breach of the confidentiality or intellectual property provisions of this Agreement, without the necessity of posting bond or proving actual damages.

c.            Notices. All notices, requests, or demands required or permitted under this Agreement must be in writing and shall be deemed delivered and received (i) if personally delivered or delivered by recognized overnight courier service, when actually received by the Party to whom notice is sent, or (ii) if delivered by certified or registered mail, postage prepaid, at the close of business on the third business day following the day when placed in the mail, addressed to the appropriate Party at the address set forth in this Agreement (or as updated by notice).

d.           Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

e.            Force Majeure. No failure, delay, or default in performance of any obligation under this Agreement (other than payment obligations) shall constitute a breach if and to the extent caused by events or conditions beyond the reasonable control of the affected Party, provided that such Party gives prompt notice to the other Party and uses commercially reasonable efforts to resume performance.

f.             Entire Agreement; Amendments; Waiver. This Agreement, together with all Order Forms and exhibits, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous proposals, understandings, and agreements, whether written or oral. No amendment or modification of this Agreement shall be effective unless in writing and signed by duly authorized representatives of both Parties. No waiver of any provision shall be effective unless in writing and signed by the waiving Party. No waiver of any breach shall be deemed a waiver of any other or subsequent breach.

g.            Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remainder of this Agreement shall remain in full force and effect.

h.           Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic transmission of a signed Agreement shall be legal and binding on all Parties.

Exhibit A – Definitions

“Affiliate” means, with respect to a person or entity, any entity controlled by, controlling, or under common control with such person or entity. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such company, entity, or party, or ownership or direct or indirect control of more than fifty percent (50%) of the outstanding voting securities or other voting interests.

“Aggregated Data” means Customer Data that has been de-identified in accordance with 45 C.F.R. § 164.514 and combined with data from other sources so it cannot reasonably identify Customer, any End Client, or any individual.

“Authorized Users” means Customer’s and its End Clients’ employees and contractors authorized by Customer to use the Services solely for Permitted Use.

“Customer Data” means data, content, and materials input into the Services by or on behalf of Customer or its End Clients, including PHI, as well as any data input into the system by Customer’s customers or End Users.

“Derivative Work” means a work that is based on one or more preexisting works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting work may be recast, transformed, or adapted. Any modifications to the Documentation or the Services or to any intellectual property of instantvob made by or for the benefit of the Customer shall be a Derivative Work thereof.

“Documentation” means the user guides, technical specifications, and policies provided by instantvob, including those specific to use of the Platform.

“End Client” means Customer’s client(s) receiving revenue cycle or related services from Customer who are permitted to use the Services under this Agreement and the applicable End-User Terms.

“End User” means any employee, contractor, or agent of Customer’s customer (End Client) who is authorized by Customer to access and use the Platform solely for the Permitted Use as set forth in this Agreement and the applicable Order Form.

“End-User Terms” means the end user terms of use set forth in Exhibit D (Platform Terms of Use for End Users) that Customer will present to and obtain assent from each Authorized User at the End Client before use of the Services.

“Environment” means an operating system with a single configuration and specific data sources, typically used for a specific audience or business purpose.

“Force Majeure Event” means any event or condition beyond a Party’s reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, civil disorder, labor strikes, pandemics, or failures of third-party infrastructure, but excluding lack of funds or credit.

“Fundamental Provisions” means the provisions of this Agreement relating to confidentiality, intellectual property, and indemnification.

“Go-Live” means the date on which the Services are first made available for production use by Customer, as specified in the applicable Order Form.

“Initial License Fee” means the non-refundable implementation fee specified in the Order Form for such Solution or Service.

“Implementation Services” means setup, configuration, connectivity, onboarding, and training services necessary for initial production use of the Services, as described in the Order Form.

“iBot” means instantvob’s long-form verification of benefits (“VOB”) service leveraging proprietary workflows, prompts, questions, and processes.

“instantvob” means instantvob’s rapid benefits verification service.

“Instance” means a collection of two Environments (production and test) offering a single Solution with a unique configuration and specified data sources.

“Order Form” means the order forms executed by instantvob and Customer relating to instantvob’s license to Customer of a specific Solution or Solutions, each of which are incorporated by reference in the Agreement.

“Output” means VOB results and other machine-generated outputs produced by the Services from Customer Data.

“Permitted Use” means Customer’s internal revenue cycle management activities on behalf of its End Clients, as further described in this Agreement.

“Platform” means the cloud-based software environment and associated technology infrastructure made available by instantvob for access and use by Customer and its End Users, as described in this Agreement and the Documentation.

“PHI” means protected health information as defined under HIPAA.

“Privacy Protected Derived Data” means the data and information (i) that has been de-identified using the Safe Harbor method, (ii) calculated by instantvob or its agents, through the aggregation and transformation of certain values derived from, isolated from, or inferred from Customer Data, in combination with information obtained from other customers or partners, and/or with information obtained from publicly available databases, and (iii) independently verified to not display or transmit information which could expose Customer’s Confidential Information or information about individuals contained in the Customer Data, in isolation or in combination with other data sources.

“Services” means the hosted software and related services made available by instantvob to Customer under this Agreement, including instantvob and iBot, Support Services, and Implementation Services.

“Subprocessor” means a third party engaged by instantvob to process Customer Data or perform obligations under this Agreement on behalf of instantvob.

“Support Services” means maintenance, support, and uptime commitments described in the Service Level Agreement (“SLA”) in Exhibit B.

“Third Party Solution” means any third-party software, service, or functionality provided or relied upon as part of the Solutions, as referenced in the applicable Order Form.

“Transaction” means a single benefits verification submission (instantvob or iBot) as further defined in the Order Form.

“Usage Data” means data related to use of the Services (e.g., logs, performance, queries) that does not include Customer Data, except in de-identified or aggregated form.

“User” means an individual person who accesses the Services outlined in this Agreement, directly or indirectly, including employees, agents, and Customer Contractors authorized to access the Services. For clarity, references to ‘User’ in this Agreement shall be interpreted as ‘Authorized User’ or ‘End User’ as context requires, and the term ‘User’ shall not be used elsewhere in the Agreement to avoid confusion.

“Upgrade” means a release, version, or maintenance fix of a Solution.

“Security Incident” means any actual or reasonably suspected unauthorized access to, acquisition of, or disclosure of Customer Data, including PHI, as defined in the BAA.

“Scheduled Uptime” means the Solution is available seven (7) days a week, twenty-four (24) hours a day (7×24), excluding Scheduled Downtime.

“Scheduled Downtime” means those times which the Solutions are not available due to scheduled maintenance, as defined in an Order Form.

Capitalized terms used in this Agreement but not defined in this Exhibit A shall have the meanings ascribed to them elsewhere in this Agreement or in the applicable Order Form.

Exhibit B – Service Level Agreement (SLA)

(a)          Uptime. instantvob will use reasonable efforts to provide 99.5% monthly uptime for production Services, excluding: (i) scheduled maintenance with at least 24 hours’ notice; (ii) emergency maintenance; (iii) a Force Majeure Event; (iv) outages attributable to Customer or third-party systems not controlled by instantvob; (v) Payer or clearinghouse unavailability; and (f) any other circumstances beyond instantvob’s reasonable control.

(b)          Support. Support hours are 9am to 4pm EST. Severity 1 incidents will be acknowledged within 60 minutes and instantvob will use reasonable efforts to provide a workaround within 8 hours.

(c)          Credits. If monthly uptime falls below 99.5%, Customer may request a credit equal to 5% of monthly Fees for the affected Service; below 99.0%, 10%. Credits are applied to future invoices and are the Customer’s sole and exclusive remedy for any failure to meet the uptime commitment or any other service level described herein. Credits must be requested in writing within thirty (30) days of the end of the month in which the failure occurred, and in no event shall the total credits issued in any calendar month exceed, in the aggregate, 10% of the monthly Fees for the affected Service.

(d)          Data Backups. Nightly snapshots retained for 30 days.

(e)          Security. instantvob maintains access controls, encryption in transit and at rest Exhibit D – Platform Terms of Use for End Users

Acceptance of Terms. By accessing or using the Platform, each End User agrees to comply with these Platform Terms of Use (the “Terms”) on behalf of the applicable End Client. If you do not agree to these Terms, you may not access or use the Platform.

Permitted Use. End Users may use the Platform solely for the End Client’s internal revenue cycle management activities as authorized by Customer and in accordance with the Agreement and applicable Order Form. Use of the Platform for any other purpose is strictly prohibited.

Compliance. End Users must comply with all applicable laws and regulations, including HIPAA and privacy laws, and must not submit any unlawful, misleading, or harmful content.

Credentials and Security. End Users are responsible for maintaining the confidentiality of each person’s access credentials and for all activities that occur under their accounts.

Restrictions. End Users shall not (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying technology of the Platform; (b) copy, modify, or create derivative works of the Platform; (c) use the Platform to develop or offer a competing product or service; (d) remove or obscure any proprietary notices; (e) interfere with or disrupt the Platform’s operation or security; (f) use the Platform in violation of any applicable law, regulation, or third-party rights; or (g) share access credentials with any other person.

Accuracy; Reliance. Output is based on information provided and payer sources and may not be comprehensive. Authorized Users must verify coverage and eligibility and are responsible for decisions made based on Output.

Confidentiality. End Users must treat all non-public information about the Platform and related documentation as confidential and may not disclose such information except as necessary to use the Platform.

Intellectual Property. The Platform and all related intellectual property are owned by instantvob. No rights are granted to End Users except for the limited right to access and use the Platform as expressly permitted in these Terms.

Suspension and Termination. instantvob or Customer may suspend or terminate End User access for any violation of these Terms. Upon termination, End Users must cease use of the Platform and destroy any non-retained copies of documentation.

No Warranties; Limitation of Liability. The Platform is provided to End Users “as is” and without warranties of any kind. To the maximum extent permitted by law, instantvob disclaims all warranties and limits liability to End Users as set forth in the Agreement.

Contact. Support inquiries should be directed to Customer; technical issues may be escalated to instantvob at support@instantvob.com .