BREEZYBILLING SERVICES AGREEMENT AND BUSINESS ASSOCIATE AGREEMENT (EUA)
THIS SERVICES AGREEMENT AND BAA SERVICES AGREEMENT sets forth the provisions under which Customer will use the Services provided by BreezyBilling, as such Services may be defined from time to time on the Order Form (s) agreed to and executed by the Parties (“Order Form”).
RECITALS
WHEREAS, BreezyBilling provides services to the healthcare industry, including claims processing, medical review, medical billing and other services; and
WHEREAS, Customer wishes to engage BreezyBilling to provide it with certain practice management, claims and billing services as set forth in the applicable Order Form whereby BreezyBilling will file insurance claims with government and commercial companies by electronic and paper means on behalf of Customer; with such services to be provided by BreezyBilling upon the terms provided for in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
AGREEMENT
DEFINITIONS
“Agreement” means this services Agreement, Business Associate Agreement (“BAA”), and any applicable Order Form. As to any particular Order Form, the Order Form, BAA, and these terms together constitute the entire Agreement of the parties. In the event of a conflict between the provisions of this Agreement and the specific provisions in an Order Form, the provisions in the Order Form shall control but only for the applicable Services in such Order Form.
“Authorized Users” means Customer or individuals who are accessing the Services: (i) on behalf of Customer; or (ii) are authorized by Customer and who do not compete with BreezyBilling.
“BreezyBilling” means BreezyNotes EHR DBA BreezyBilling, a Minnesota corporation, its successors and assigns.
“BreezyBilling IP” means patents, trademarks, drawings, inventions, copyrights, samples, processes, moral rights, rights of publicity, rights of ownership, designs, design rights, trade secrets, specifications, instruction manuals, technology, materials, information, data, good will, improvements, and writings and all rights therein.
“Confidential Information” means all nonpublic information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (i) nonpublic information relating to the Disclosing Party’s technology, products, services, processes, data, customers, employees, business plans and methods, promotional and marketing activities, finances and other business affairs, and (ii) third-party information that the Disclosing Party is obligated to keep confidential.
“Customer” means the individual or entity specified as the “Customer” in the applicable Order Form and that is bound to this Agreement.
“Effective Date” means the date of Customer’s acceptance of this Agreement by signing the applicable Order Form with BreezyBilling.
“Order Form” means an order form signed by an authorized representative of each party that defines the Services and shall be incorporated by reference into, and governed by this Agreement.
“Payer” means a commercial, state or federal health insurance plan provider that sets service rates, collects payments, processes claims, and pays provider claims.
“Scheduled Maintenance” means any maintenance at the BreezyBilling contracted data center to which Customer is connected (a) of which Customer will be notified three (3) business days in advance, and (b) that is performed during a standard maintenance window from 12 AM to 4 AM Central Time.
“Software Service” means the BreezyNotes Practice Management software for the storage, access and management of electronic health records, which includes electronic medical records services, client scheduling services, practice management services, client and insurance billing services, and client progress tracking and management.
“Urgent Maintenance” means any maintenance efforts requiring immediate action to correct a problem that will likely cause material service outages. BreezyBilling will provide notice of Urgent Maintenance to Customer’s designated point of contact as soon as is practicable under the circumstances.
ARTICLE 1
PROVISION OF SERVICES
1.1 Medical Billing Services. BreezyBilling agrees to provide certain medical billing, RCM, Practice Management, and other related services to Customer that are agreed to by the parties on the terms set forth in an Order Form (the “Services”) and subject to the conditions set forth in this Agreement. Each Order Form will define: (i) the Services to be provided, (ii) BreezyBilling’s compensation and payment deadlines, (iii) any additional terms and conditions applicable to the Services, if any, and (iv) such other details as the parties may deem appropriate. Unless otherwise provided therein, each Order Form will become effective upon execution by the parties and shall be incorporated by reference into, and governed by, this Agreement. Any changes to any Order Form shall be permitted only upon written agreement of the parties. In the event of a conflict between the provisions of this Agreement and the specific provisions in an Order Form, the provisions in the Order Form shall control but only for the applicable Services in such Order Form.
1.2 Software Service. [LHDL1] Unless expressly stated otherwise within an Order Form, the Services shall include access for Customer to the Software Service.
A. Grant of License to the Software Service. BreezyBilling grants Customer and its Authorized Users, a limited, non-exclusive, revocable, non-sublicensable, non-transferable, limited right and license to access and use the Software Service during the Term to store, retrieve, update, share and process Personal Health Information (“PHI” as defined in Exhibit A).
B. Access to the Software Service. To access the Software Service, Customer must create an account by providing BreezyBilling with contact information, status as a health care provider, and health system affiliation (“Customer Personal Information”). By accessing the Software Services, Customer represents to BreezyBilling that it is a properly credentialed healthcare provider. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User.
C. User Obligations.
1. Customer agrees to implement and maintain physical and electronic security measures to safeguard the Software Service when Customer accesses, inputs, displays, stores, shares, and updates or processes any PHI. Customer is responsible for any unauthorized access to or use of its Software Service account.
2. Notice of Breach. During the Term, Customer agrees to immediately notify BreezyBilling of any known or suspected breach, unauthorized use or disclosure of information using the Software Service, and will cooperate with BreezyBilling in mitigating and investigating the same at BreezyBilling’s direction.
3. Compliance with Law. Customer is solely responsible to ensure that when accessing and using the Software Service, Customer complies with all applicable laws and regulations, including but not limited to those laws applicable to maintaining security, privacy, and confidentiality of PHI.
4. Professional Standards and Responsibility. . Customer is solely responsible to uphold any professional or technical standards that may apply to the healthcare services Customer provides. The Software Service may provide information to assist Customer with clinical decision-making. However, BreezyBilling makes no representation concerning the completeness, accuracy, or utility of any information in the Software Service. Unless otherwise stated herein, BreezyBilling has no liability to Customer or its patients or clients based on Customer’s use of the Software Service.
D. Authorized Uses; Prohibited Uses of the Software Service. Customer shall not access or use the Software Services for any purpose except for the specific terms set out in the applicable Order Form. Customer shall not use the Software service to (i) infringe any third party’s intellectual property rights; (ii) circumvent or reverse engineer any content, feature or functionality of the Software Service; (iii) permit unauthorized persons to access or use the Software Service; (iv) create a competitive Software Service; (v) use the Software Service other than as permitted in this Agreement; and/or (vi) use the Software Service to perpetuate a crime or fraud or to violate any federal, state or local laws or regulations.
E. Cooperation with BreezyBilling. Customer agrees to cooperate with BreezyBilling in its administration of the Software Service which shall include providing reasonable assistance in evaluating the Software Service as well as collecting and reporting data requested by BreezyBilling for its administration use.
F. Service Availability and Service Levels. BreezyBilling agrees to use commercially reasonable measures to make the Software Service available to Customer on an uninterrupted basis 24‑hour‑a‑day, 7‑day‑a‑week basis, except for (i) Scheduled Maintenance; (ii) Urgent Maintenance; and (iii) any unavailability caused by circumstances beyond BreezyBilling's control as described in Section 9.13 of the Agreement.
1. Service Level Commitments. BreezyBilling shall ensure that there will be Software Services availability with uninterrupted 99.99% or better (measured monthly on HTTP service for Web servers and on SQL service for database servers) (“Uptime Requirement”). Customer Support phone and email response time objectives of one business day or less during normal business hours with after-hours response times one business day or less.
2. Actual Scheduled Maintenance downtime shall not exceed ten hours per calendar month per Service. For application and patch updates, notice to Customer as follows: seven (7) business days notice prior to any application of non-critical patches; and (ii) forty-eight (48) hours notice prior to any critical patches; and (iii) thirty (30) days notice prior to upgrading or modifying the operating system or SQL applications or any other hosted applications. Notice of Scheduled Maintenance will be provided by email to Customer’s designated point of contact, or such other email address as Customer may identify from time to time.
3. Computer Systems and Implementation. BreezyBilling will specify requirements to access the Software Service from time to time. Customer agrees and understands that it is solely responsible for obtaining, installing, configuring, and/or maintaining all hardware, software, and communication systems necessary to access the Software Service.
1.3 Relationship of the Parties. BreezyBilling’s relationship to Customer will be that of an independent contractor, and BreezyBilling is not an agent or employee of, and has no authority to bind, Customer by contract or otherwise. BreezyBilling will perform the Services under the general direction of Customer, but BreezyBilling will determine the manner and means by which the Services are accomplished. Further, it is not the intention of this Agreement or of the parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity, other than the parties hereto, a right of action under this Agreement or in any manner whatsoever.
ARTICLE 2
PAYMENT FOR SERVICES
2.1 Charges for Services. Customer shall pay all fees set forth in the Pricing Addendum to the applicable Order Form, per the terms of the Pricing Addendum, unless otherwise specified.
2.2 Payments. Unless otherwise specified in an Order Form, invoices for Services rendered hereunder shall be submitted monthly on the 10th of each month for the prior month’s fees and payment shall due by Customer within thirty (30) days after receipt of such invoice. BreezyBilling will add a 5% penalty to any balance that is overdue 30 days, accrued monthly. All fees paid are non-refundable except as expressly set forth in this Agreement.
2.3 Billing Disputes. Customer will notify BreezyBilling in writing of any disputed charges on any invoice within fifteen (15) days from the date of the applicable invoice with sufficient detail to allow the parties to resolve the dispute in good faith, and Customer and BreezyBilling will work together to resolve the disputed charges. Otherwise, such invoice shall be deemed approved for all purposes. Overdue fees shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law. In the event that any fees become more than thirty (30) days overdue, BreezyBilling may suspend performance of the Services upon written notice to Customer. BreezyBilling shall not have any liability for such suspension.
ARTICLE 3
TERM AND TERMINATION
3.1 Term. This Agreement shall commence upon the Effective Date and shall continue thereafter until terminated pursuant to the terms of this Agreement (the “Term”).
3.2 Services Term. The provision of Services term of an Order Form (each a “Services Term”) shall commence as of the “Start Date” specified in the applicable Order Form and shall continue as specified in the Order Form. Thereafter, unless otherwise specified in the applicable Order Form, the Services Term shall automatically renew for successive periods of one (1) year, unless BreezyBilling or Customer provides written notice of nonrenewal to the other party at least sixty (60) days before the end of that current Services Term.
3.2 Termination. This Agreement may be terminated as follows:
A. Immediately, in writing upon the mutual agreement of BreezyBilling and Customer.
B. By either party for cause if the other party breaches a material term or condition of this Agreement and fails to cure such breach within thirty (30) days of receipt of prior written notice of such breach.
C. At such time as all Order Form(s) have expired.
D. Immediately upon written notice to the other party, if the other party assigns all or part of its assets for the benefit of creditors, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors (collectively “Petitions”), if (a) such Petitions are not dismissed within sixty (60) days of filing, or (b) the other party fails to inform the terminating party of a Petition in writing within five (5) business days of the filing of the Petition.
3.3 Effect of Termination. Customer shall pay for all fees incurred and/or accrued up to and including the effective date of termination or expiration of this Agreement and any Order Forms. Upon termination of this Agreement, (i) Customer’s rights under this Agreement and any Order Forms shall immediately terminate; (ii) each party shall return to the other party all documents and other tangible manifestations in whatever form of the other party’s Confidential Information received by such party pursuant to this Agreement (and all copies and reproductions thereof), or, if the other party so requests, immediately destroy any such Confidential Information (and all copies and reproductions thereof), and certify such return and/or destruction to the other party; and (iii) Customer shall give BreezyBilling access to their billing software for a period of 30 days after termination to finalize work on any claims submitted prior to termination.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Existence and Authority. BreezyBilling and Customer represent and warrant that they are: (i) duly formed and validly existing entities in the jurisdiction of their incorporation and will be at all times during the Term; (ii) free and able to enter into this Agreement and any ancillary agreement or Order Form executed in connection with this Agreement and to perform its obligations under the Agreement; (iii) shall comply with all applicable laws rules, and regulations in its performance of its obligations under this Agreement and applicable to its business; and (iv) shall render all services hereunder in a professional and workmanlike manner.
4.2 Customer Warranties. Customer represents and warrants to BreezyBilling that (i) this Agreement constitutes the legal, valid and binding obligations of Customer enforceable against Customer in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally; and (ii) Customer has all rights and/or authorization required by law for BreezyBilling to communicate with all healthcare Payers and use all Customer Content, including without limitation, all personal and other claims information provided by Customer to BreezyBilling in BreezyBilling’s performance of the Services.
4.3 Disclaimer, Exclusion of Warranties. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE SERVICES AND THE SERVICES AND THE BREEZYBILLING CONTENT AS WELL AS ANY INFORMATION CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BREEZYBILLING DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT) WITH REGARD TO THE SERVICES, THE SOFTWARE SERVICE AND THE BREEZYBILLING CONTENT. BREEZYBILLING DISCLAIMS ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS, LOSS OF DATA, OR LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SOFTWARE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BREEZYBILLING DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SOFTWARE SERVICE.
ARTICLE 5
CONFIDENTIALITY AND DATA SECURITY
5.1 Protection of Confidential Information. The Receiving Party shall keep all Confidential Information confidential and shall not use or disclose Confidential Information except as permitted under this Agreement or as otherwise necessary to fulfill its obligations under this Agreement. The Receiving Party shall inform all of its employees, affiliates, contractors and consultants with a need to know Confidential Information to perform the Services, of their obligations under this Agreement and such employees, affiliates, contractors and consultants must be bound by confidentiality obligations as least as restrictive as those set forth in this Agreement. The Receiving Party shall use the same degree of care it uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information. The Receiving Party shall immediately notify the Disclosing Party of any use or disclosure of Confidential Information not permitted by this Agreement of which it becomes aware. Notwithstanding the foregoing, BreezyBilling’s obligations with respect to PHI shall be governed by the terms of Exhibit A, attached hereto and incorporated herein by reference. A party’s confidentiality obligations hereunder shall survive the termination of this Agreement, until such time as the information is no longer deemed confidential.
5.2 Exceptions. The Receiving Party shall have no obligation to preserve the confidentiality of any information which (i) was previously known to the Receiving Party free of any confidentiality obligation and not through an unauthorized disclosure; (ii) becomes publicly available by any means other than unauthorized disclosure; or (iii) is independently developed by the Receiving Party without reliance on any of the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary, in the event that the receiving party is legally compelled to disclose any of the Disclosing Party’s Confidential Information pursuant to a subpoena, order, process or other requirement of a judicial or other governmental agency, the Receiving Party may disclose such Confidential Information provided that the Receiving Party (a) notifies the Disclosing Party as soon as practicable prior to making such legally compelled disclosure, (b) provides any reasonably requested assistance to the Disclosing Party in obtaining a protective order, and (c) only discloses that portion of the Disclosing Party’s Confidential Information that, in the opinion of the Receiving Party’s legal counsel, it is legally compelled or otherwise required to disclose.
5.3 Use of PHI Entered into the Software Service. Subject to the terms of Exhibit A, Customer authorizes BreezyBilling to receive, store, transmit and maintain PHI as necessary to provide the Services to Customer.
5.4. Heightened Protection for Certain Information. Federal and state laws may impose restrictions on the use and disclosure of certain kinds of health information, including mental health records or such information pertaining to certain classes of individuals. Customer agrees that it is solely responsible for ensuring that may be properly disclosed for the purposes set forth in this Agreement, subject to the restrictions of applicable law.
5.5. Data Security. BreezyBilling will use commercially reasonable efforts to protect and prevent unauthorized disclosure of Customer Data while it is in BreezyBilling’s possession and control. Specifically, BreezyBilling agrees to take commercially reasonable steps to protect against: (a) reasonably anticipated threats or hazards to the privacy, security, integrity and/or confidentiality of Customer Data and Customer Confidential Information; and (b) unauthorized, accidental or unlawful destruction, loss, alteration or disclosure of or access to Customer Data.
ARTICLE 6
INDEMNIFICATION AND LIABILITY
6.1 Indemnification by BreezyBilling. BreezyBilling hereby agrees to defend, indemnify and hold harmless Customer, its officers, directors, employees and agents from and against any and all claims, losses, damages, liabilities, suits or proceedings including reasonable attorneys’ fees arising out of or relating to any third party’s claim that the Services infringe its valid United States patent, copyright, trade secret, trademark or other intellectual property rights; provided that Customer (i) promptly notifies BreezyBilling in writing of any such claim(s) of which it becomes aware, (ii) permits BreezyBilling sole control to defend, compromise or settle such claim(s), and (iii) provides reasonable information, assistance and authority at BreezyBilling’s expense to enable BreezyBilling to defend such claim(s). Subject to the foregoing, Customer may otherwise participate in the defense or settlement of any claim(s) at its own expense. If the Services are held or are reasonably believed by BreezyBilling to infringe a third party’s patent, copyright, trade secret, trademark or other intellectual property rights, BreezyBilling may, in its sole discretion, (a) modify the Services so that they are non-infringing, (b) replace the infringing portion of the Services with a non-infringing substitute of similar functionality, (c) obtain a license for Customer to continue to use the Services, and/or (d) if a-c are not commercially practicable, terminate the applicable Order Form upon thirty (30) days’ notice. This Section 6.1 shall not apply to the extent the applicable claim arises from (i) a modification of the Software Service not authorized by BreezyBilling or from Customer’s unauthorized use of the Software Service; or (ii) the combination of the Software Service with any product software or technology not provided by BreezyBilling. THIS SECTION 6.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BREEZYBILLING’S SOLE LIABILITY FOR ANY THIRD PARTY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.
6.2 Indemnification by Customer. Customer hereby agrees to defend, indemnify and hold harmless BreezyBilling, its officers, directors, governors, members, managers, employees and agents from and against any and all claims, losses, damages, liabilities, suits or proceedings including reasonable attorneys’ fees arising out of or relating to the Services, including, but not limited to Customer’s breach of this Agreement, Customer’s violation of applicable law, rule, or regulation, a modification of the Software Services, or the combination of the Software Services with any product, software or technology not provided by BreezyBilling. BreezyBilling shall (i) notify Customer in writing of any such claim(s) of which it becomes aware, (ii) permit Customer sole control to defend, compromise or settle such claim(s), provided Customer may not settle any such claim(s) without the consent of BreezyBilling, and (iii) provide reasonable information, assistance and authority at Customer’s expense to enable Customer to defend any such claim(s). BreezyBilling may otherwise participate in the defense or settlement of any such claim(s) at its own expense.
6.3. Limitation of Liability. EXCEPT WITH RESPECT TO BREEZYBILLING’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BREEZYBILLING OR ITS AFFILIATES, EMPLOYEES, MEMBERS, MANAGERS, GOVERNORS, AGENTS, CONTRACTORS, SUPPLIERS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT THE SERVICES, OR THE ACCESS OR USE OF THE SOFTWARE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED WARRANTY’S OR REMEDY’S ESSENTIAL PURPOSE. SUBJECT TO THE LIMITATIONS CONTAINED IN THIS AGREEMENT, EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR FOR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S ENTIRE CUMULATIVE AND AGGREGATE LIABILITY UNDER ANY AND ALL CAUSES OF ACTION ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AGGREGATE FEES PAID BY CUSTOMER TO BREEZYBILLING UNDER THE AFFECTED ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. Any claims arising in connection with this Agreement, except for claims arising out of Customer’s nonpayment must be brought within one (1) year of the date of the event giving rise to such action occurred.
Unauthorized Access; Lost or Corrupt Data. BREEZYBILLING IS NOT RESPONSIBLE FOR: (I) UNAUTHORIZED ACCESS TO customer’s ELECTRONIC HEALTH RECORDS, FACILITIES OR EQUIPMENT BY PERSONS USING THE SOFTWARE SERVICE; (II) ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SOFTWARE SERVICE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING CUSTOMER’S DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES. CUSTOMER HEREBY WAIVES ANY DAMAGES WHICH MAY RESULT FROM LOST OR DATA CORRUPTION, INCORRECT REPORTS, OR INCORRECT DATA FILES OCCASIONED BY PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE.
Damages Caused by Other Users. CUSTOMER ACKNOWLEDGE THAT OTHER USERS HAVE ACCESS TO AND ARE USING THE SOFTWARE SERVICE INCLUDING THOSE USERS CUSTOMER HAS AUTHORIZED TO ACCESS ITS ELECTRONIC HEALTH RECORDS, THE ACTIONS OF SUCH OTHER USERS ARE BEYOND BREEZYBILLING’S CONTROL. THEREFORE, BREEZYBILLING DOES NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY INFRINGEMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ELECTRONIC MEDICAL RECORDS OR PHI ON THE SOFTWARE SERVICE RESULTING FROM ANY USER’S ACTIONS OR FAILURES TO ACT.
6.4 Acknowledgement. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 6 ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE MAY NOT APPLY TO CUSTOMER.
ARTICLE 7
INTELLECTUAL PROPERTY
7.1 Ownership. Customer acknowledges and agrees that as between Customer and BreezyBilling, BreezyBilling is and shall remain the exclusive owner of the Services, including the Software Services (other than Customer’s PHI and any third party’s intellectual property included therein), BreezyBilling’s Confidential Information and all BreezyBilling IP. Except as expressly set forth herein, Customer shall have no rights or interest in BreezyBilling IP.
7.2 Customer Intellectual Property. All Customer Confidential Information and Customer’s data and information provided and/or made available to Company under this Agreement by Customer (“Customer Content”) is, shall be and shall remain the exclusive property of Customer or its licensors, and BreezyBilling shall have no right or interest in Customer Content, except that Customer hereby grants BreezyBilling, for the Term, a non-exclusive, non-transferrable, royalty-free license to use Customer Content as necessary for BreezyBilling to perform the Services. . Customer owns and retains all rights to the PHI that Customer inputs or provides while using the Software Service.
7.3 De-Identified Data. In consideration for the provision of the Software Service, Customer agrees that BreezyBilling owns all rights, title, and interest in and any de‑identified information created from Customer’s use of the Software Service. Customer agrees that BreezyBilling may sell, license, or otherwise disclose this de‑identified information for any purpose without restriction, and that Customer has no interest in the proceeds resulting from the sale, license, or other commercialization of such de‑identified information.
7.4. Work Product. In utilizing the Software Service, Customer will be permitted to create certain reports and other work product (“Customer Work Product”). Customer Work Product created using the Software Service is and will remain Customer’s sole and exclusive property. Customer also will own the contents of any reports Customer generates when accessing or using the Software Service, provided, however, that the BreezyBilling IP shall remain the property of BreezyBilling.
ARTICLE 8
CLINICIAN RESPONSIBILITY
8.1 Claims. Customer acknowledges that the Services include BreezyBilling’s submission of claims on behalf of Customer and its providers to third party Payer for services performed or supplies provided by Customer and its providers. Customer hereby authorizes BreezyBilling to submit claims on Customer’s behalf for health care services rendered and supplies provided by Customer or its providers.
8.2 Liability. Customer acknowledges and agrees that Customer is solely responsible for any claim submitted on Customer’s behalf by BreezyBilling and that Customer shall remain solely responsible and liable for any later adjustment of that payment for any reason. Customer acknowledges and agrees that the misrepresentation or falsification of any record or other information relevant to any claim submitted under the terms of this Agreement may be a crime and, upon conviction, may subject Customer or its providers to imprisonment and fine under applicable laws. Customer agrees to indemnify and hold BreezyBilling harmless from any and all liability for any claim submitted by Customer found to have been misrepresented or falsified in any manner whatsoever. Customer further acknowledges and agrees that a Carrier has the right not to accept any claim submitted by BreezyBilling under this Agreement.
8.3 Audit. Customer acknowledges and agrees that the Secretary of the U.S. Dept. of Health and Human Services and any Carrier has the right to audit and confirm any information supplied by Customer and has access to any and all claims documentation in Customer’s possession to verify the accuracy of any information provided by Customer relevant to any claim submitted under this Agreement. Any payments made to Customer which any such audit, shows to have been made in error may be adjusted pursuant to any applicable Federal regulations, the Social Security Act, any Medicare guidelines and any other applicable laws. Customer further agrees that it shall not submit any claims which conflict with any such applicable laws. Customer acknowledges and agrees that it is Customer’s responsibility to maintain all original source documents required by law to enable verification of any claims submitted by Customer whether they are paper or electronic claims and, if such claims are electronic, they shall be easily traceable to any original documents associated with such electronic claim.
ARTICLE 9
MISCELLANEOUS
9.1 Successors, Assigns. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may, without the consent of the other, assign the Agreement to a controlled subsidiary of that party or a purchaser of all or substantially all of that party’s assets used in connection with performing this Agreement, provided the assigning party guarantees the performance of and causes the assignee to assume in writing all obligations of the assignor under this Agreement. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.
9.2 Insurance. During the Term, Customer shall obtain and maintain the following insurance coverage for the benefit of BreezyBilling: (a) commercial general liability in an amount not less than $1,000,000 per occurrence; (b) professional liability (errors and omissions) insurance in an amount not less than $1,000,000 per occurrence; and (c) privacy and network security (“cyber”) insurance covering loss arising out of or in connection with loss or disclosure of confidential information or PHI, in a minimum amount of $1 million per loss.
9.3 Injunctive Relief. It is possible that remedies at law in the event of a breach of this Agreement may be inadequate and, therefore, the parties hereto shall be entitled to equitable relief including, without limitation, injunctive relief, specific performance and other equitable remedies in addition to all other remedies provided herein or available to the parties hereto at law or in equity.
9.4 Notices. Any notices or other communications required or permitted hereunder shall be in writing and shall be considered to have been duly given, when received, if delivered by hand, overnight courier, fax, confirmed e-mail with pdf attachment, or when deposited, if placed in the mails for delivery by air mail, postage prepaid, addressed to the appropriate party at his or its address set forth below (however, any such notice shall not be effective, if mailed, until three (3) business days after depositing in the mail or when actually received, whichever occurs first):
If to BreezyBilling, to:
Paul Jonas
BreezyBilling
7525 Mitchell Rd, Ste 215
Eden Prairie, MN 55344
Fax: (952) 934-5580
Email: paulj@breezynotes.com
If to Customer, to the address specified in the applicable Order Form.
9.5 Entire Agreement. This Agreement, together with the Exhibits and Schedules attached hereto and all Order Forms, agreements, documents, and instruments executed in connection with this Agreement, contains all of the terms agreed upon by the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings among the parties and may not be changed or terminated orally. No attempted change, termination or waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced.
9.6 Paragraph Headings. Paragraph headings herein have been inserted for reference only and shall not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or part, any of the terms or provisions of this Agreement.
9.7 Third Parties. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies on any persons other than the parties hereto and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement.
9.8 Subcontracting. BreezyBilling shall have the right to use subcontractors to perform any of its obligations hereunder.
9.9 Severability. In the event that any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect of any reason, the validity, legality and enforceability of any provision in every other respect and of the remaining provisions of this Agreement shall not be in any way impaired.
9.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9.11 Jurisdiction and Venue. This Agreement shall be subject to the exclusive jurisdiction of the courts of Hennepin County, Minnesota. The parties to this Agreement agree that any breach of any term or condition of this Agreement shall be deemed to be a breach occurring in the State of Minnesota by virtue of a failure to perform an act required to be performed in the State of Minnesota and irrevocably and expressly agree to submit to the jurisdiction of the courts of the State of Minnesota for the purpose of resolving any disputes among the parties relating to this Agreement or the transactions contemplated hereby. The parties irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof brought in Hennepin County, Minnesota and further irrevocably waive any claim that any suit, action or proceeding brought in Hennepin County, Minnesota has been brought in an inconvenient forum.
9.12 Force Majeure. Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, except for payment obligations. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations superimposed after the Effective Date, fire, communication line failures, power failures, earthquakes and other disasters. In such an event, the delayed party shall give written notice to the other party and shall take such actions reasonably possible to resume performance.
9.13 Survival. Any sections (or portions thereof) that either expressly by their terms, or in order to give full effect to their provisions must, survive the expiration or termination of this Agreement or any Order Form, shall so survive.
9.14 Construction. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota without regard to its principles of conflicts of laws. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not construe this Agreement against one party more strictly by reason of any rule of interpretation which relates to preparation of a document, it being agreed that the agents of all parties have participated in the preparation of this Agreement and that legal counsel was consulted by each party prior to its execution hereof.
Last Updated: March 2024
EXHIBIT A
HIPAA BUSINESS ASSOCIATE AGREEMENT (BAA) AND GLBA COMPLIANCE
BreezyBilling understands and acknowledges that this Exhibit shall apply in the event BreezyBilling provides Services to Customer under the Agreement whereby BreezyBilling shall receive from or create or receive on behalf of Customer Protected Health Information, or BreezyBilling creates, receives, maintains or transmits on behalf of Customer Electronic Protected Health Information (as those terms are defined under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)), and/or nonpublic personal information, as defined under the Gramm-Leach-Bliley Act and implementing regulations (“GLB”), during the performance of its obligations under the Agreement.
1. Except as otherwise specified herein, BreezyBilling may use or disclose Protected Health Information received from or created or received on behalf of Customer (“PHI”) and nonpublic personal information received from or created or received on behalf of Customer (“Personal Information”) to perform functions, activities, or services for, or on behalf of, Customer as specified in the Agreement and this Exhibit, provided that such usage or disclosure would not violate the HIPAA privacy and security regulations, GLB or other federal or state privacy and security laws applicable to Customer, if done by Customer.
2. With regard to its use and/or disclosure of PHI or Personal Information, BreezyBilling hereby agrees and represents and warrants to Customer that BreezyBilling shall:
a. not use or further disclose any PHI or Personal Information other than as permitted by the Agreement, this Exhibit or required by law;
b. at all times maintain and use appropriate safeguards to prevent uses or disclosures of any PHI or Personal Information other than as permitted by the Agreement, this Exhibit or required by law, and implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of electronic protected health information (“EPHI”) (as defined in 45 CFR Section 160.103) that BreezyBilling creates, receives, maintains, or transmits on behalf of United, including, at a minimum, the safeguards, policies and procedures with respect to EPHI set forth on to this Exhibit A.; and
c. ensure that any and all subcontractors or agents to whom BreezyBilling provides any PHI or Personal Information agrees in writing to the same conditions and restrictions that apply to BreezyBilling with regard to the PHI or Personal Information,
d. ensure that any and all subcontractors or agents to whom BreezyBilling provides EPHI agree in writing to implement reasonable and appropriate safeguards to protect EPHI.
3. With regard to its use and/or disclosure of PHI, BreezyBilling hereby agrees and represents and warrants to Customer that BreezyBilling shall:
a. report to Customer any: (i) use or disclosure of any PHI of which it becomes aware that is not permitted by this Agreement and (ii) any Security Incident (defined in 45 CFR Section 164.304) of which it becomes aware as required by law;
b. mitigate, to the extent practicable, any harmful effect that is known to BreezyBilling of a use or disclosure of PHI by BreezyBilling in violation of the requirements of this Agreement;
c. in the time and manner designated by Customer, make available PHI in a Designated Record Set, to Customer, or as directed by Customer, to an individual, in order for Customer to respond to individuals’ requests for access to information about them in accordance with the HIPAA privacy regulation;
d. in the time and manner designated by Customer, make any amendments or corrections to the PHI in a Designated Record Set that Customer directs in accordance with the HIPAA privacy regulation;
e. in the time and manner designated by Customer, document such disclosures of PHI and information related to such disclosures as would be required for Customer to respond to a request by an individual for an accounting of disclosures of PHI in accordance with the HIPAA privacy regulations;
f. in the time and manner designated by Customer, make available to Customer, or as directed by Customer, to an individual, the information documented in accordance with subsection (e) above, to permit Customer to respond to a request by an individual for an accounting of disclosures, in accordance with the HIPAA privacy regulations; and
g. in the time and manner designated by Customer or the Secretary of HHS, make its internal practices, books and records relating to the use and disclosure of PHI available to Customer, or the Secretary of HHS for purposes of determining Customer’s compliance with the HIPAA privacy regulations.
4. Each term and condition of this Exhibit required by HIPAA and/or GLB shall be effective on the compliance date applicable to Customer or the Effective Date of this Agreement, under the HIPAA privacy and security regulation and/or GLB, respectively.
5. Upon the termination or expiration of this Agreement for any reason, BreezyBilling shall return to Customer or destroy all PHI and/or Personal Information and retain no copies in any form whatsoever. This provision shall apply to PHI and/or Personal Information that is in the possession of subcontractors, BreezyBilling or agents of BreezyBilling. If BreezyBilling determines that returning or destroying the PHI and/or Personal Information is infeasible, BreezyBilling will provide Customer notification of the conditions that make return or destruction infeasible and will extend the protections of this Agreement to such PHI and/or Personal Information and limit further uses and disclosures of such PHI and/or Personal Information to those purposes that make the return or destruction infeasible, for so long as BreezyBilling maintains such PHI and/or Personal Information.
6. BreezyBilling agrees that this BAA and/or the Agreement or an Order Form may be terminated by Customer upon written notice to BreezyBilling in the event that Customer determines that BreezyBilling has violated any material term of this Exhibit. Alternatively, Customer may choose to provide BreezyBilling with written notice of the existence of an alleged material breach of this Exhibit and afford BreezyBilling an opportunity to cure said breach upon mutually agreeable terms. Failure to cure, or a determination by Customer that cure is not practicable or possible, shall be grounds for the immediate termination of this Agreement.
7. Unless otherwise specified in this Agreement, all capitalized terms in this Exhibit not otherwise defined have the meaning established for purposes of Title 45 parts 160 and 164 of the United States Code of Federal Regulations, as amended from time to time.
8. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Customer to comply with the requirements of HIPAA, the HIPAA privacy and security regulations, GLB and other federal and state privacy, security and consumer rights laws and regulations applicable to Customer. BreezyBilling agrees to reasonably cooperate with and assist Customer in order for Customer to meet its obligations under applicable privacy and security laws and regulations.
9. This Exhibit A shall survive any termination of the Agreement.
10. The terms and conditions of this Exhibit A required by HIPAA shall be construed in light of any applicable interpretation of and/or guidance on the HIPAA privacy and security regulations issued by HHS from time to time. Any ambiguity in this Exhibit shall be resolved in favor of a meaning that permits Customer and BreezyBilling to comply with applicable laws and regulations.