This Master Service Agreement (“MSA”) is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between Alpha Nodus, inc., a Delaware corporation with place of business at 9600 Great Hills Trail, Suite 150W, Austin, TX 78759, and customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control
SERVICES AND SUPPORT
Services. Subject to the terms of this MSA, Alpha Nodus will use commercially reasonable efforts to provide Customer the Services set forth in the applicable Order Form (“Services”). As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Alpha Nodus reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
Support. Subject to the terms hereof, Alpha Nodus will provide Customer with service level availability and reasonable technical support services in accordance with the terms set forth in Exhibit C.
TERM AND TERMINATION
Term. This MSA is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (“Renewal Term”) (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.. These Terms, as may be updated from time to time, will commence on the date they are accepted by Customer and continue until terminated in accordance with this section.
Termination for Cause. A Party may terminate this MSA for cause (a) upon written notice of the other Party of a material breach if such breach remains uncured after thirty (30) days from the date of the breaching Party’s receipt of such notice; or (b) if the other Party becomes a subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or assignment of the benefit of creditors. Non-payment of Fees by Customer past ninety (90) days from an invoice date.
Termination for Convenience. Either party may terminate these Terms for any reason upon ninety (90) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, Customer may not terminate these Terms until such Order Form(s) has expired or been terminated in accordance with its terms.
Cancellation. A Party may terminate the MSA and an applicable Order Form by providing notice to the other party of termination ninety (90) days prior to the end of the then-current Term.
Effect of Termination & Survival. Upon termination of these Terms, the terms of this section and the terms of the following sections will survive: Section 5 to 9
FEES AND PAYMENT TERMS
Usage Fees. Customer will pay Alpha Nodus the then applicable Fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Usage Fees”). Alpha Nodus reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
Minimum Spend: Both the Minimum Spend Period and the Minimum Spend Amount are provided for in each applicable Order Form. All of Customer’s actual Usage Fees incurred will be applied toward the applicable Minimum Spend Amount for each Minimum Spend Period. If Customer’s Usage Fees goes over the Minimum Spend Amount, then Customer shall pay for such usage based on fees provided in Exhibit A. If customer’s Usage Fee is under the Minimum Spend Amount, then Customer shall only pay for its actual usage based on the fees provided in Exhibit A. If Customer terminates an Order Form prior to the expiration of the Initial Service Term or then-current Renewal Term, except for the extent such termination is due to Alpha Nodus’s failure to cure a material breach in accordance with the MSA, then Customer is responsible for paying a Minimum Spend Amount for the remaining portion of the Initial Service Term or then-current Renewal Term upon termination.
Maximum Spend: Both the Maximum Spend Period and the Maximum Spend Amount are provided for in each applicable Order Form. All of Customer’s actual Usage Fee incurred will be applied towards the applicable Maximum Spend Amount for each Maximum Spend Period at a Discounted Price provided in Exhibit A. Alpha Nodus will not exceed the Maximum Spend Amount for the Maximum Spend Period in Usage Fees for the Services outlined in the Order Form. If Alpha Nodus goes over the Maximum Spend Amount for the Maximum Spend Period, Customer is not obligated to pay for any overages above and beyond the Maximum Spend Amount for the Maximum Spend Period.
Payment disputes. If Customer believes that Alpha Nodus has billed Customer incorrectly, Customer must contact Alpha Nodus no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Alpha Nodus’ customer support department.
Net Payment Terms. Alpha Nodus will bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Alpha Nodus within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including attorney’s fees, and may result in immediate termination of Service.
Taxes. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Alpha Nodus’s net income.
RESPONSIBILITIES AND RESTRICTIONS
Customer Implementation Responsibility. In order for Alpha Nodus to deliver the Services, Customer will, at its sole cost and expense, provide Alpha Nodus with uninterrupted access and make necessary configuration to the information system as specified, but not limited to, below:
Connectivity and data stream. Customer will provide Alpha Nodus with a secure site-to-site VPN connectivity such that customer information system may be accessed through Alpha Nodus’s infrastructure. Additionally, Customer will make an unfiltered HL7 stream with ORM and/or SIU messages available to Alpha Nodus.
Permissions and credentials. Customer will provide Alpha Nodus with all the credentials to access the Customer’s information systems and payor portals with equivalent permissions as the Customer’s prior authorization and scheduling agents to perform their daily tasks of processing visits for prior authorizations or scheduling.
Information system configuration. Customer will configure its information system to add necessary queues and status for differentiating the work queues for automation and exceptions.
Training and Historic data. Customer will provide Alpha Nodus with the necessary historic data as well as training of internal processes and training manuals so that Alpha Nodus may provide the Services.
Alpha Nodus shall not be liable or responsible for for any delays in the performance of the Service to the extent resulting from (a) any delay by Customer in providing Alpha Nodus with records, documentation or data, (b) Customer’s provision of incomplete or inaccurate records, documentation or data, or (c) Alpha Nodus’s inability to access customer’s software or system as required for performance of the Services. Customer will reimburse Alpha Nodus for any cost incurred by Alpha Nodus a result of any of the foregoing. No credits or penalties shall be assessed against Alpha Nodus to the extent arising out of Customer’s failure to meet its obligation.
Sole Source. Alpha Nodus shall be Customer’s sole source provider of the Services under this MSA. Customer shall not subscribe, license or sublicense any service that (a) compete with the Services, and (b) have the same application or purpose as the Service.
Accuracy of Information. Customer shall be solely responsible for providing Alpha Nodus with true, accurate and complete information, records, data, patient signatures, authorization and other documentation required for performance of the Services. Customer shall be responsible for the accuracy and completeness of all information provided. Customer represents and warrants that all information provided to Alpha Nodus is supported by relevant medical records and other documentation as appropriate, and that all information provided is true, accurate and complete. Customer shall defend, indemnify and hold Alpha Nodus harmless for and against any and all losses arising out of relating to, or in anyway connected with Customer’s breach of the representations and warranties contained in this Section, including all costs and expenses related to any audit of Alpha Nodus relating to such Customer provided information.
Authorization to Access information. Solely for the purposes of this MSA, Customer hereby authorizes Alpha Nodus to obtain and convey the information necessary to perform the Services.
Third Party Consents. Customer shall be administratively and financially responsible for obtaining and maintaining all third party consents and approvals required for Alpha Nodus to perform Services as authorized under this MSAand any applicable Order Form, including by not limited to any consents and approvals required to allow Alpha Nodus to access and use third-party software products. Customer represents and warrants that it has obtained all third-party consents required by applicable law or contract for Alpha Nodus to perform the Services contemplated herein.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Alpha Nodus or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Alpha Nodus hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
CONFIDENTIALITY, PROPRIETARY RIGHTS AND OWNERSHIP
Confidentiality. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Alpha Nodus includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Alpha Nodus to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Ownership. Alpha Nodus shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services and the Implementation Services or support, (c) any data that is derived from the use of the Services that does not directly or indirectly identify Customer, or any natural person and includes, but not limited to, volumes, frequencies, and service performance data, and (d) all intellectual property rights related to any of the foregoing. Customer shall own all right, title and interest in and to the Customer Data.
Notwithstanding anything to the contrary, Alpha Nodus shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Alpha Nodus will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Alpha Nodus offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
HIPAA Compliance. In the event Customer Data contains Protected Health Information (“PHI”) as such term is defined in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA”) and regulations promulgated thereunder, Customer affirms that the disclosure to and use of such Customer Data by Alpha Nodus is hereby permitted. The Parties agree to comply with the provisions of the Business Associate Agreement between the Parties, a copy of which is attached hereto as Exhibit D. Alpha Nodus shall be directly responsible for compliance with the privacy and security requirements applicable to Customer and the PHI.
REPRESENTATIONS, WARRANTY AND DISCLAIMER
Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
Warranties. During the Term of this MSA, Alpha Nodus shall use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Alpha Nodus or by third-party providers, or because of other causes beyond Alpha Nodus’s reasonable control, but Alpha Nodus shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
Disclaimer. ALPHA NODUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND ALPHA NODUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Indemnification by Alpha Nodus. Alpha Nodus shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Alpha Nodus is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Alpha Nodus will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Alpha Nodus, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Alpha Nodus, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Alpha Nodus to be infringing, Alpha Nodus may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
Indemnification by Customer. Customer agrees to defend, hold harmless and indemnify Alpha Nodus from and against any and all claims, actions, or demand, including attorney’s fees, arising from Customer’s acts or omissions under this MSA
LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ALPHA NODUS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ALPHA NODUS’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ALPHA NODUS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ALPHA NODUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Entire Agreement. This MSA and applicable Order Form(s) constitutes the entire agreement, and supersedes all prior agreements between Alpha Nodus and Customer regarding the subject matter hereof.
Assignment. Either party may, without consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all such Party’s assets provided that (a) the other Party is provided prior notice of such assignment and (b) any such successor agrees to fulfill its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
Severability. If any provision of this MSA is held by a court as competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
Publicity and Marketing. Alpha Nodus may use Customer’s name, logo and trademarks solely to identify Customer as a client of Alpha Nodus on Alpha Nodus’s marketing materials and in accordance with Customer’s trademark usage guidelines, if Customer provides same to Alpha Nodus. Alpha Nodus may share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes to develop and promote Services. Alpha Nodus will never disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer as the source of the information without explicit consent from the Customer.
Relationship of the Parties. The Parties are independent contractors. This MSA does not create partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
Notices. All notices provided by Alpha Nodus to Customer under this MSA may be delivered in writing by electronic mail to the electronic mail address provided for Customer’s Billing Email. Customer must give notice to Alpha Nodus in writing by electronic mail to firstname.lastname@example.org.
Governing Law, Jurisdiction, Venue. This MSA will be governed by the laws of the State of Texas, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in a court of general jurisdiction in Travis County, Texas. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Services by Customer.