Terms of Service
Master Service Agreement governing your access to and use of the Simpl Healthcare platform. Last Updated: 2024
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
These Terms of Service, together with any other document referenced herein (collectively, these "Terms"), govern your access to, and use of, the websites, mobile applications and other products and services (collectively, the "Services") that are provided by Simpl Healthcare, Inc., a Delaware corporation, and its affiliates and subsidiaries ("Simpl," "we" or "us"). The date that you accept these Terms is referred to as the "Effective Date."
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice, such as by sending you an email notification, by providing notice through the Services, or by updating the "Last Updated" date. Your continued use of the Services will confirm your acceptance of the revised Terms.
1. Definitions
"Administrator"
The individual at the Customer who will be provided the Access Protocols to permit Users to access the Platform and use the Services.
"Confidential Information"
Any business, technical and financial information, and any other nonpublic information of a party that it discloses to the other party and identifies as "confidential," or that the Receiving Party knows or should have known is confidential. Confidential Information does not include information: (a) already in the Receiving Party's possession free of any confidentiality obligations; (b) that is or becomes publicly known through no wrongful act of the Receiving Party; or (c) subsequently disclosed to the Receiving Party on a non-confidential basis by a third party who rightfully acquired such information.
"Data"
All data and information entered into the Platform by Users in connection with the use of the Services, such as billing information, patient information, patient communications, insurance information, or anything else the Customer inputs into the Platform.
"Fees"
Subscription fees and any other related fees payable by the Customer to the Company for access and use of the Platform and Services.
"Platform"
The Company's proprietary platform, as described in more detail on Exhibit A.
"Services"
Those professional services provided to the Customer by the Company in connection with the use of the Platform, together with the provision and operation of the Platform, all as described on Exhibit A.
"User"
An individual who is authorized by the Customer and the Administrator to access the Platform using the Access Protocols provided to such individual by the Company and the Customer.
2. Services
2.1 The Company Platform
Subject to the terms and conditions contained in these Terms, the Company hereby grants to the Customer and its Users a non-exclusive, non-transferable right to access and use the Platform and Services solely for the Customer's business operations during the Term. The Company shall provide to the Administrator the necessary credentials, passwords, security protocols and policies and network links or connections to allow the Customer and its Users to access the Platform (the "Access Protocols"). The Customer and its Users may only use the Platform in accordance with the Access Protocols. The Customer will not decompile, disassemble, reverse engineer, scrape, create derivative works from or otherwise attempt to obtain or perceive the source code from which any software component of the Platform or the Services are compiled or interpreted.
2.2 Enrolled Patients; Access to the Services
The Customer agrees to enroll all of the Customer's patients in the Platform as soon as practicable after the Effective Date and, further, agrees to enroll all additional Customer patients into the Platform on a continuous basis. The Customer shall: (a) notify the Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security; (b) report to the Company immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected; and (c) not provide false identity information to gain access to or use the Services.
2.3 Data Usage
The Customer is solely responsible for collecting, inputting and updating all Data, and the Customer represents and warrants that the Customer has obtained all consents and/or approvals required in order to provide the Data to the Company. The Customer grants the Company a royalty-free, non-exclusive and perpetual license to use the Data for the purpose of operating the Platform and providing the Services. Further, the Company may anonymize, de-identify, license, sublicense, analyze and otherwise use the Data in whatever manner the Company determines, subject to any applicable laws or patient consent requirements.
2.4 Company Obligations
The Platform shall perform in all material respects in accordance with these Terms. The Company will provide standard maintenance for the Platform during the Term, which will include "bug fixes" and other minor modifications to the Platform as may be identified by the Company from time to time.
3. Subscription Fees
3.1 Subscription Fees
The Customer will pay to the Company the Fees set forth on Exhibit A and will also reimburse the Company for all reasonable and actual out-of-pocket expenses that the Customer approves in advance. All amounts paid are non-refundable and all payment obligations are non-cancellable (except as provided in Section 9 of these Terms).
3.2 Invoicing and Payments
The Customer may be charged a recurring annual subscription fee, monthly usage fees, or both, as set forth on Exhibit A. The Company charges and collects in advance for use of the Services. All invoices are due and payable within thirty (30) days from the invoice date.
3.3 Taxes
All Fees exclude taxes, levies, duties or similar government assessments, and the Company may charge, and the Customer will be solely responsible for and agrees to pay, any applicable federal, state and local taxes, other than those income taxes based on the Company's net income.
3.4 Overdue Fees
The Company reserves the right to charge the Customer interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, on any undisputed Fees not received within fifteen (15) days of the payment due date. If any collection efforts are required, the Customer shall be liable for all costs of collection, including reasonable attorneys' fees, costs and expenses. Nonpayment of undisputed Fees is a material breach of these Terms.
3.5 Suspension for Non-Payment
The Company reserves the right to suspend delivery of the Services and access to the Platform if the Customer fails to timely pay any undisputed amounts due, but only after the Company notifies the Customer of such failure and such failure continues for fifteen (15) days. The Company shall not be liable to the Customer or to any third party for any liabilities, claims or expenses arising from or relating to such suspension resulting from the Customer's non-payment.
4. Intellectual Property
The Customer hereby grants the Company a non-exclusive, worldwide, sub-licensable license to use, reproduce and display the Customer's trademarks, trade names, logos, and domain names solely in connection with the promotion and marketing of the Services, as permitted by these Terms.
Except as otherwise provided in these Terms, these Terms do not grant either party any rights, implied or otherwise, to the other party's content or intellectual property. As between the parties, the Company owns all rights, title and interest in and to the Platform and Services, including all intellectual property rights therein.
5. Confidentiality
Each party agrees to use the Confidential Information of the other party solely in connection with these Terms and not to disclose or permit access to such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, that each party may disclose the other party's Confidential Information to its employees, officers, directors, contractors, representatives, or agents (collectively, "Representatives") who need to know such Confidential Information for purposes of these Terms and who are bound by written confidentiality obligations no less restrictive than those contained herein.
Each party shall be liable to the other party for any unauthorized disclosure by its Representatives. Each party shall protect the other party's Confidential Information with at least the same degree of care it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. The obligations of confidentiality shall survive for a period of five (5) years from the date of disclosure.
6. HIPAA Compliance and Protected Health Information
To the extent that either party is required to comply with HIPAA in connection with the provision or use of the Services, the parties acknowledge that the Company will act as a "Business Associate" (as defined by HIPAA) of the Customer and the parties agree to execute a Business Associate Agreement (the "BAA") prior to the commencement of any Services. The parties agree that the BAA will be incorporated herein by reference and is made a part of these Terms.
7. Indemnification
7.1 Indemnification by the Customer
Subject to Section 7.3, the Customer agrees to defend, indemnify and hold harmless the Company, and its officers, directors, employees, shareholders, contractors and representatives, from and against any and all claims, actions, proceedings, demands, damages, losses, costs or expenses, including, without limitation, attorneys' fees, arising from or in connection with: (a) breach of any representation, warranty, covenant or obligation of the Customer under these Terms; (b) any negligence, fraud or willful misconduct by the Customer in connection with these Terms; or (c) the Customer's breach of any applicable law or regulation.
7.2 Indemnification by the Company
Subject to Section 7.3, the Company agrees to defend, indemnify and hold harmless the Customer, and its officers, directors, employees, shareholders, contractors and representatives, from and against any and all claims, actions, proceedings, demands, damages, losses, costs or expenses, including, without limitation, attorneys' fees, arising from or in connection with any claim that the Company's Platform, as provided to the Customer, infringes any copyright, U.S. patent or trademark, or misappropriates any trade secret, of any third party. If such a claim is made or appears likely, the Company may, at its sole option: (a) procure a right for the Customer to continue using the Platform; (b) replace or modify the Platform with non-infringing software that does not materially impair functionality; (c) modify the Platform to become non-infringing; or (d) terminate these Terms and refund any Fees paid for the remainder of the then-current term.
7.3 Procedures
Indemnification obligations are conditioned upon: (a) the Indemnified Party promptly notifying the Indemnifying Party in writing of any threatened or actual claim or suit; (b) the Indemnifying Party having sole control of the defense or settlement of any claim or suit; and (c) the Indemnified Party cooperating with the Indemnifying Party to facilitate the settlement or defense of any claim or suit.
8. Limitation of Liability
8.1 Excluded Damages: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FROM LOSS OF PROFITS, FINANCING, BUSINESS OR REPUTATIONAL HARM, REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER IN AN ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Cap: EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 (CONFIDENTIALITY) OR SUCH PARTY'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO THE COMPANY BY THE CUSTOMER FOR THE INITIAL TERM OR APPLICABLE RENEWAL PERIOD IN WHICH THE APPLICABLE CLAIM AROSE; PROVIDED THAT EACH PARTY'S MAXIMUM AGGREGATE INDEMNIFICATION OBLIGATION SHALL BE FIVE HUNDRED THOUSAND DOLLARS ($500,000).
8.3 Basis of the Bargain: The parties agree that the limitations of liability shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and these Terms entered into in reliance upon these limitations of liability.
9. Term and Termination
These Terms shall commence on the Effective Date and shall continue for a period of fifteen (15) months (the "Initial Term"), subject to the Pilot Period described on Exhibit A. At the end of the Initial Term, these Terms shall automatically renew for successive periods of twelve (12) months (each, a "Renewal Period") unless, at least thirty (30) days prior to the end of the Initial Term or any Renewal Period, one party provides the other party written notice of such party's intention not to renew.
Upon any termination of these Terms: (a) the Customer will immediately discontinue all use of the Platform and Services and any Company Confidential Information; (b) the Company will immediately discontinue all use of the Customer Confidential Information; and (c) the Customer will promptly pay to the Company all amounts accrued and payable under these Terms. The Company agrees to provide the Services to each Patient for a period of 12 months after the date that the Customer enrolled such Patient in the Platform.
10. Miscellaneous
10.1 Relationship of Parties
The parties are independent contractors. Nothing herein will be construed as creating any agency, partnership, or other form of joint enterprise between the parties, and neither party may create any obligations or responsibilities on behalf of the other party.
10.2 Governing Law; Jurisdiction; Venue
These Terms shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of laws provisions. The exclusive jurisdiction and venue for any action arising under these Terms shall be in the federal and state courts located in Travis County, Texas and both parties hereby irrevocably consent to such exclusive jurisdiction and venue.
10.3 Notices
All notices hereunder shall be in writing and shall be given by e-mail, personal delivery, overnight courier service, or by registered or certified mail addressed to the parties at their respective addresses.
10.4 Severability
If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
10.5 Waiver
Any failure of a party to exercise or enforce any of its rights under these Terms will not act as a waiver of such rights.
10.6 Assignment
Neither party may assign these Terms, in whole or in part, without the prior written consent of the other party, except that a party may assign these Terms without consent to a successor-in-interest as a result of a merger, stock or equity interests sale, consolidation or in connection with the sale or transfer of all or substantially all of its business or assets.
10.7 Entire Agreement
These Terms represent the entire agreement and supersede all previous agreements and understandings between the parties relating to the subject matter hereof and may be changed only in a writing signed by both parties.
10.8 Publicity
The Company may publicly refer to the Customer, including on the Company's website and in sales presentations, as a Company customer and may use the Customer's logo or name for such purposes. Similarly, the Customer may publicly refer to itself as a customer of the Company.
Exhibit A — Platform, Service Description, Pricing and Pilot Period
The Platform, which the Company provides as a software-as-a-service, are web applications designed to provide: (a) operational efficiencies and product innovation solutions for healthcare professional practices within the Company's portal; and (b) tools enhancing the patient experience in the Company's patient portal.
The Services include the following:
- Comprehensive Medical and Clinical data across 85% of US hospitals, clinics and labs
- 99% coverage of Medicare and Medicaid data
- All payors on Anthem and BCBS, with additional payors added from time to time
- Drug Adherence calendar and input from patients
- Reminders and notifications; messaging with providers and nurses
- AI Tools: Providers can turn on ambient listening on their devices to auto generate clinical notes
- Lab and vital trend analysis across medical data
Pricing & Pilot Period
Annual Subscription Fee: $75.00 per Patient/per 12 month period, payable on a monthly basis, in advance, on the 1st day of the month. The Company will invoice the Customer based on the total number of enrolled Patients as of the 1st day of the applicable month.
Pilot Period: Ninety (90) days. During the Pilot Period, no Fees will apply (except for any Pilot Use Fee specified), the Services are provided "AS IS" and no warranty obligations of the Company will apply, and the Customer may terminate these Terms with no less than ten (10) days' prior written notice before the end of the Pilot Period; otherwise, these Terms shall continue in effect for the Initial Term.
Pilot Use Fee: Not applicable
Contact Information
Email: support@simplhealthcare.com
Company: Simpl Healthcare, Inc. (Delaware Corporation)
Jurisdiction: Travis County, Texas, United States