These Terms of Service, together with any other document referenced (whether by means of a hyperlink or otherwise) in these Terms of Service (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 Simple 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.”
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONTAIN IMPORTANT INFORMATION THAT AFFECTS YOU AND YOUR USE OF THE SERVICES. IF YOU ARE ACCESSING OR USING THE SERVICES IN YOUR WORK OR BUSINESS CAPACITY OR ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL ALSO REFER TO THE COMPANY OR ENTITY WHICH YOU REPRESENT OR ARE EMPLOYED BY, ITS AFFILIATES, AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL ADDITIONAL TERMS INCORPORATED HEREIN BY REFERENCE ON YOUR OWN BEHALF AND, AS APPLICABLE, ON BEHALF OF THE COMPANY OR ENTITY WHICH EMPLOYS YOU OR WHICH YOU REPRESENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
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 of such changes, such as by sending you an email notification, by providing notice through the Services, or by updating the “Last Updated” date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms (as may be amended or updated) to ensure that you understand the terms and conditions that apply to your access to and use of the Services. If you do not agree to any amended Terms, you must immediately stop accessing and using the Services and give us written notice.
1. DEFINITIONS. The following definitions shall apply to these Terms:
1.1 “Administrator” means that certain individual at the Customer who will be provided the Access Protocols to permit Users (each as defined herein) to access the Platform and use the Services.
1.2 “Confidential Information” means any business, technical and financial information, and any other nonpublic information of a party (the “Disclosing Party”) or of a third party that the Disclosing Party is required to maintain as confidential (which, for these purposes, shall be deemed the Confidential Information of the Disclosing Party), whether disclosed orally or in written or digital media, that it discloses to the other party (the “Receiving Party”) and identifies as “confidential” or with a similar legend at the time of such disclosure or that the Receiving Party knows or should have known is the confidential or proprietary information of the Disclosing Party. Confidential Information does not include information that (a) is already in the Receiving Party’s possession free of any confidentiality obligations at the time of disclosure; (b) is or becomes publicly known through no wrongful act or failure by the Receiving Party; or (c) a third party subsequently discloses to the Receiving Party on a non-confidential basis, if such third party owes no duty of confidentiality to the Disclosing Party regarding such information and rightfully acquired such information.
1.3 “Data” means 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.
1.4 “Fees” means subscription fees and any other related fees payable by the Customer to the Company for access and use of the Platform and Services.
1.5 “Platform” means the Company’s proprietary platform, as described in more detail on the applicable Service Order.
1.6 “Services” means 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 the applicable Service Order.
1.7 “Service Order” means each executed Service Order that incorporates these Terms.
1.8 “User” means an individual who is authorized by the Customer and the Administrator to access the Platform using the Access Protocols (as defined herein) 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 (as defined below). As soon as reasonably practicable after the Effective Date, 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, and the Customer acknowledges that nothing in these Terms will be construed to grant the Customer any right to obtain or use such code.
2.2 Enrolled Patients; Access to the Services. The Customer agrees to enroll all of the Customer’s patients in the Platform (each enrolled patient is referred to as a “Patient” and, collectively, as the “Patients”) as soon as practicable after the Effective Date and, further, agrees to enroll all additional Customer patients into the Platform on a continuous basis after the Effective Date. The Customer acknowledges that it is the responsibility of the Administrator to provide the appropriate credentials or other Access Protocols to the Users to access the Platform. 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 by the Customer or any User, 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 to the Company 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 (including, without limitation, in connection with clinical trials), 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 (as defined below), 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 in the applicable Service Order 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, except as provided in Section 9 of these Terms, all payment obligations are non-cancellable.
3.2 Invoicing and Payments. The Customer may be charged a recurring annual subscription fee, monthly usage fees, or both, as set forth in the applicable Service Order. 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 charged, levied or assessed arising from these Terms in a timely manner, 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, and agrees to pay, all costs of collection, including, without limitation, 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 to the Company, but only after the Company notifies the Customer of such failure and such failure continues for fifteen (15) days. The Customer agrees that 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 the suspension of the Services resulting from the Customer’s non-payment.
4. INTELLECTUAL PROPERTY.
4.1 Customer Data and Confidential Information. The Customer hereby grants the Company a non-exclusive, worldwide, sub-licensable license to use, reproduce, transmit, and distribute the Data for the purpose of providing the Services hereunder.
4.2 Other Intellectual Rights. Other than the rights granted to the Customer to access and use the Platform as contemplated herein, the Company retains the sole and exclusive right, title and interest in and to the Platform (and all API interfaces and specifications), the Company’s trademarks, trade names, domain names, service marks, documentation, the Services and the Company’s Confidential Information. The Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by the Customer, including Users, relating to the operation of the Platform or the Services. The Company and its licensors reserve all rights not expressly granted to the Company in these Terms, and nothing in these Terms shall be deemed to grant any implied right or license.
5. CONFIDENTIALITY
5.1 Obligations. Each Receiving Party agrees that: (a) it will keep all Confidential Information of the Disclosing Party in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure; (b) it will not disclose any Confidential Information of the Disclosing Party to any third party, except as expressly permitted hereunder or with the prior written consent of the Disclosing Party; and (c) it will not make use of any Confidential Information of the Disclosing Party for its own purposes or for the benefit of anyone other than the Disclosing Party (except as necessary to exercise its rights or fulfill its obligations hereunder). Each Receiving Party will be deemed to have met its obligations hereunder if it treats the Disclosing Party’s Confidential Information with the same degree of care as it treats its own sensitive business information of like kind, but in no event shall the Receiving Party use less than commercially reasonable efforts to prevent unauthorized disclosure of such Confidential Information. Upon termination or expiration of these Terms, or at any earlier time that the Disclosing Party shall so request, the Receiving Party will deliver promptly to the Disclosing Party, or, at the Disclosing Party’s option, the Receiving Party will destroy, all Confidential Information of the Disclosing Party obtained hereunder (and all copies thereof) that the Receiving Party may then possess or have under its control.
5.2 Exceptions. Notwithstanding the foregoing, each party may disclose the Confidential Information of the Disclosing Party to the limited extent required (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under these Terms, including to make such court filings as it may be required to do. A party also may disclose the Confidential Information of the Disclosing Party to actual and potential acquirers of the Receiving Party (including accounting, legal and financial advisors), who, in each case are obligated to keep such information confidential pursuant to a binding obligation at least as protective of the Disclosing Party’s confidential information as the terms of this Section 5.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
6.1 Each party hereby represents and warrants to the other party that: (a) it is a validly existing business entity, duly licensed and qualified to carry on its business/operations and perform its obligations under these Terms; (b) it has all rights, licenses, permits, qualifications and consents necessary to perform its obligations and grant the licenses made hereunder; (c) it will comply with all laws in the performance of its obligations and exercise of its rights hereunder, including, without limitation, the Health Insurance Portability and Accountability Act of 1996; and (d) its performance under these Terms does not and will not violate or cause a breach of the terms of any other agreement to which it is a party. In addition, the Company represents and warrants that it will deliver and perform all Services in a professional and workmanlike manner in accordance with industry standards and these Terms.
6.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, (A) THE COMPANY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW; (B) THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT; AND (C) THE COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED OR ERROR-FREE BASIS OR THAT THE SERVICES AND INFORMATION THEREIN WILL BE ERROR FREE. THE COMPANY MAKES NO REPRESENTATION REGARDING THE ACCURACY AND COMPLETENESS OF ANY STATISTICS, PARAMETERS, DATA OR INFORMATION MONITORED OR DISPLAYED THROUGH THE SERVICES. THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, MONITOR, CURE OR PREVENT (A) ANY SERVICES OR INFORMATION PRODUCED BY MEDICAL OR SCIENTIFIC MEASUREMENT DEVICES, (B) ANY DIAGNOSIS, ADVICE OR PRESCRIPTION BY ANY PHYSICIAN OR OTHER HEALTHCARE PROVIDER, AND/OR (C) ANY OTHER SERVICES OR TREATMENTS BY PHYSICIANS OR OTHER HEALTHCARE PROVIDERS OF ANY KIND.
7. INDEMNIFICATION
7.1 Mutual. To the extent permitted by applicable law, each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party and its parent, subsidiaries, directors, officers, agents, representatives, and employees (each, an “Indemnified Party”) from and against any and all costs, expenses, claims, losses, liabilities, including reasonable, out-of-pocket attorneys’ fees (collectively, “Losses”) incurred by any of them as a result of any third party claim based on (a) a breach or alleged breach by the Indemnifying Party of any of its representations or warranties hereunder; or (b) the gross negligence or willful misconduct of the Indemnifying Party in carrying out its obligations hereunder or using the Services.
7.2 IP Indemnity. The Company will defend at its expense any suit brought against the Customer and will pay any settlement the Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Platform misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. If any portion of the Platform becomes, or in the Company’s opinion is likely to become, the subject of a claim of infringement, the Company may, at the Company’s option: (a) procure for the Customer the right to continue using the Platform; (b) replace the Platform with non-infringing software or services that do not materially impair the functionality of the Platform; (c) modify the Platform to become non-infringing; or (d) terminate these Terms and refund any Fees actually paid by the Customer to the Company for the remainder of the term then in effect, and upon such termination, the Customer will immediately cease all use of the Platform and the Services. This subsection states the sole and exclusive remedy of the Customer and the entire liability of the Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
7.3 Procedures. The Indemnifying Party’s obligations set forth in this Section 7 are expressly 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, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, 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 UNDER THESE TERMS, 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 IN ANY WAY, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, 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, HOWEVER, THAT EACH PARTY’S MAXIMUM AGGREGATE INDEMNIFICATION OBLIGATION UNDER THESE TERMS SHALL BE FIVE HUNDRED THOUSAND DOLLARS ($500,000).
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 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 and that all such limitations form an essential basis of the bargain between the parties.
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”). At the end of the Initial Term, these Terms shall automatically renew for successive periods of twelve (12) months (each, a “Renewal Period,” and along with the Initial Term, the “Term”) unless, at least thirty (30) days prior to the end of the Initial Term or any Renewal Period (as the case may be) one party provides the other party written notice of such party’s intention not to renew these Terms. Upon any termination of these Terms, (a) the Customer will immediately discontinue all use of the Platform and Services and any the 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 by the Customer and payable under these Terms. Notwithstanding such termination of 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 (and these Terms, as then in effect, shall continue to govern such relationship until the expiration of the 12-month subscription for the applicable Patient). The provisions of Sections 1, 3 (as to amounts due and outstanding hereunder), and 4 through 10, inclusive, shall survive termination or expiration of these Terms.
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 for this purpose.
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 (postage prepaid and return receipt requested) addressed to the parties at their respective addresses (or at such other address as a party may designate by notice to the other party).
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 of these Terms 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 or transfer these Terms or all of its rights and obligations under these Terms without the other party’s 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. These Terms will be binding upon and inure to the benefit of the Company and the Customer and their successors and permitted assigns.
10.7 Entire Agreement; Conflicts; Amendments. 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. In the event of a conflict among these Terms and any term set forth in a Statement of Work or attached exhibit or addenda, these Terms will control unless the conflicting term specifically references the inconsistent term of these Terms, in which case the conflicting term will control only for the limited purposes set forth in the document containing such term.
10.8 Publicity. The Company may publicly refer to the Customer, including on the Company’s website, in press releases 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, including on the Customer’s website and in sales presentation.
