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Customer Subscription Agreement

Terms and conditions of our web-based medical billing software

BY PRESSING ‘I AGREE’ CUSTOMER AGREES TO ENTER INTO THIS AGREEMENT.

IF CUSTOMER DOES NOT AGREE TO THESE TERMS, DO NOT PRESS ‘I AGREE’ AND CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.

This Customer Subscription Agreement (Agreement) is between Kareo, a California corporation (Kareo), and the entity or individual agreeing to these terms (Customer), and covers all services provided by Kareo to Customer.

  1. 1) WEB-BASED MEDICAL BILLING SOFTWARE

    This Agreement provides Customer access to a proprietary online medical billing subscription service with functionality for:

    • Practice Management, such as patient eligibility and appointments;
    • Medical Billing & Collections, such as check coding and sending insurance claims;
    • Electronic Medical Records, such as document management, sending prescriptions and ordering lab services;
    • Clearinghouse Services, such as claim submissions, verify insurance eligibility and electronic remittance reports; and
    • Analytics & Data, such as custom reporting and charting.

    Kareo will provide this functionality through http://www.kareo.com within its server environment under the terms below (Service) and through a desktop software client that will act as the interface to the Service (this software will be contracted for under an end user license agreement provided as part of the installation of that software). This Agreement contemplates one or more orders for the Services, which orders are governed by the terms of this Agreement and will describe the Services ordered in more detail (these orders may be provided electronically online or via written order forms).

    • Customer may allow its (a) employees and contractors to access the Services in compliance with the terms of this Agreement, which access must be for the sole benefit of Customer, and (b) clients (only if acting as a service provider to them) access to the Service as part of providing medical billing, accounts receivable management, transcription, coding, or other medical office support services to such clients (Service Provider).
    • Customer is responsible for the compliance with this Agreement by its employees, contractors and clients, as the case may be.
    • Each employee, contractor and client, as the case may be, must agree to Kareo’s end user license agreement before using the Kareo desktop software.

  2. 2) USE OF SERVICES

    1. a) Kareo Responsibilities

      Kareo must (i) use commercially reasonable efforts to make the Services available, except for (x) scheduled outages, or (y) unavailability caused by force majeure, and (ii) provide customer support for the Services (if enrolled) as further detailed at: http://www.kareo.com/terms/customer-support-policy.

    2. b) Customer Responsibilities

      Customer (i) is solely responsible for Customer Data, (ii) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify Kareo promptly of any such unauthorized access, and (iii) may use the Services only in accordance with its user guide and applicable law.

      Customer may not (w) sell, resell, rent or lease the Services, (x) use the Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights), (y) interfere with or disrupt the integrity or performance of the Services, or (z) attempt to gain unauthorized access to the Services or their related systems or networks.

  3. 3) PAYMENT TERMS

    Based on the services and configuration selected by Customer from http://www.kareo.com/terms/pricing-policy. Customer must pay all fees (US$) with a credit card, via ACH or otherwise upon receipt of an invoice from Kareo. If the credit card or ACH is not valid or the payment is not otherwise made, Customer must pay the amount owed upon receipt of an invoice. Customer is responsible for sales, use, VAT and other similar taxes. All fees may be changed on 30 days advance notice, unless otherwise described below. There is no separate fee for the license to the desktop software.

    Subscription Fees Support Fees - Electronic Clearinghouse Fees
    - Patient Statement Mailing Fees
    - Paper Claim Mailing Fees
    - Excess Data Storage Fees     		- Training
    - Data Conversion
    - Data Interface
    - Other services
    - Due in Advance
    - Pro-Rated in Arrears (for new Providers added in a month)     		- Due in Advance - Due in Arrears - Due in Advance
    Due in Advance:
    Example: Kareo would bill you around the 1st of the month for the service provided in that month)

    Due in Arrears:
    Example: Kareo would bill you around the 1st of the month for the service provided in the prior month)

    1. a) Credit Card and ACH

      Customer agrees to provide Kareo with updated credit card or ACH information, and expressly authorizes Kareo to charge Customer’s credit card or ACH account each month for an amount equal to Customer’s then current balance. In the event that either:

      1. (i) Customer's credit card or ACH information changes,
      2. (ii) Customer’s credit card or ACH information expires, or
      3. (iii) Customer is notified by Kareo of an unsuccessful attempt by Kareo to charge Customer’s credit card or ACH account for Customer’s monthly invoice total,

      then Customer agrees to update its account with valid credit card or ACH information as soon as possible, but in no event later than 5 days. If the credit card number or ACH authorization is revoked, disputed or not valid for any reason (including without limitation expiration of a credit card), Kareo may suspend or terminate Customer’s use of the Services upon notice to Customer via email (using the then current account email address in the Service).

  4. 4) WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY

    1. a) Kareo Limited Warranty

      Kareo warrants to Customer, (i) that commercially reasonable efforts will be made to maintain the online availability of the Services for a minimum of availability in any given month as provided in the chart below (excluding scheduled outages), (ii) the functionality of the Services may change but will not materially decrease during a paid term, and (iii) that the customer support may change but will not materially degrade during any paid term.

      Availability Warranty Credit/Refund
      99% 5% of monthly recurring fee for each hour of failure to reach this target
      (maximum refund/credit is the monthly recurring fee)

    2. b) Limited Remedy and Disclaimer

      Customer’s exclusive remedy and Kareo’s sole obligation for breach of the warranty in (a)(i) immediately above will be for Kareo to provide a credit as provided in the chart above (if this Agreement is not renewed, then a refund), for the month in question; provided that Customer notifies Kareo of such breach within 30 days of the end of the month in question. KAREO DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

    3. c) Mutual Compliance with Laws Warranty

      Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this Agreement.

  5. 5) MUTUAL CONFIDENTIALITY

    1. a) Definition of Confidential Information

      Confidential Information means all confidential information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Kareo’s Confidential Information includes without limitation the Services.

    2. b) Protection of Confidential Information

      The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors and clients (as the case may be) who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

    3. c) Exclusions

      Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.

  6. 6) PROPRIETARY RIGHTS

    1. a) Reservation of Rights by Kareo

      The software, workflow processes, user interface, designs, know-how and other technologies provided by Kareo as part of the Services are the proprietary property of Kareo and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Kareo. Kareo reserves all rights unless expressly granted in this Agreement.

    2. b) Customer Restrictions

      Customer may not:

      1. i. Use the Services or the Licensed Documentation beyond its internal operations;
      2. ii. Reverse engineer the Services or the Licensed Documentation;
      3. iii. Remove or modify any proprietary marking or restrictive legends in the Service; or
      4. iv. Access the Service to (w) build a competitive product or service, or (x) copy any feature, function or graphic of the Service for competitive purposes.

    3. c) Customer Data

      All data uploaded by Customer remains the sole property of Customer, as between Kareo and Customer (Customer Data), subject to the other terms of this Agreement. Customer grants Kareo a non-exclusive term license to use, modify, copy and prepare derivate works of the Customer Data for purposes of Kareo performing under this Agreement. Customer may at any time download its Customer Data from the Services. Kareo may use during and after this Agreement all aggregate non-identifiable information and data for purposes of enhancing the Services, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.

    4. d) Licensed Documentation

      The AMA Content, and the Services user guide, sample data, marketing materials and other material provided or accessible through the Services, are licensed to Customer as follows: Kareo grants Customer a non-exclusive, license for the duration of the Services to such material for Customer’s internal use solely with the Services, with the right to make additional copies of the material for such duration and purpose (Licensed Documentation).

      1. i. AMA Content means the coding work of nomenclature and codes for reporting of healthcare services from the print publication Current Procedural Terminology, Fourth Edition and the data file of Current Procedural Terminology (CPT) published by the American Medical Association in the English language as used in the United States.
      2. ii. AMA Restrictions: Customer may not use outside the United States, publish, distribute or create any derivate work (including without limitation translation), transfer, sell, lease, license or otherwise make available the AMA Content, or a portion or copy of such content, except as expressly provided in this Agreement. This sublicense is limited to one user for each active provider associated with Customer’s account. Customer is responsible for seeking additional user licenses directly from the American Medical Association if it requires more than one user license per active provider. CPT is a copyright and a registered trademark, of the American Medical Association.

  7. 7) EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY

    1. a) Exclusion of Certain Damages

      EXCEPT FOR A VIOLATION OF KAREO’S INTELLECTUAL PROPERTY RIGHTS OR FOR THE INDEMNITIES BELOW, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES).

    2. b) Limitation of Liability

      KAREO’S LIABILITY FOR ALL DAMAGES RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.

  8. 8) TERM, TERMINATION, SUSPENSION OF SERVICE AND RETURN OF DATA

    1. a) Term

      This Agreement continues from month-to-month (Term), and is terminable (with or without or cause): by Customer upon advance notice, and by Kareo upon at least 5 days advance notice.

      1. i. Actions upon Termination

        1. (w) Upon any termination as provided in 8(a) above by Customer, Kareo must refund any prepaid and unused fees covering the remainder of the Term.

        2. (x) Upon any termination as provided in 8(a) above by Kareo, Customer must pay any unpaid fees covering the remainder of the Term, and destroy all Kareo property. Customer upon request will confirm that it has complied with these requirements.

    2. b) Return of Data

      • Before termination of this Agreement, Customer may download its Customer Data.. The Customer Data will only be provided in Microsoft Excel (.XLS) or Common Separated Values (.CSV) file format and only includes patient records (including patient demographics, case information, and insurance policy information) and claim records (including encounter and claim information, billed amount, adjustments, payments, and current balance information).
      • After termination, Kareo has no obligation to maintain any of the Customer Data.
      • If Customer is acting as a Service Provider, the data of a client of Customer will be provided to that client upon the instruction of Customer and that client (unless based on Kareo’s belief applicable law requires otherwise).

    3. c) Suspension of Service for Violations of Law

      Kareo may immediately suspend the Services and remove applicable Customer Data if it in good faith believes that, as part of using the Services, Customer may have violated a law. Kareo may try to contact Customer in advance, but it is not required to do so.

  9. 9) INDEMNITY

    1. a) By Kareo

      If a third-party claims that Customer’s use of the Services (other than related to the Customer Data) infringes that party's patent, copyright or other proprietary right, Kareo will defend Customer against that claim at Kareo’s expense and pay all costs, damages, and attorney's fees, that a court finally awards or that are included in a settlement approved by Kareo, provided that Customer:

      1. i. promptly notifies Kareo in writing of the claim; and
      2. ii. allows Kareo to control, and cooperates with Kareo in, the defense and any related settlement.

      If such a claim is made, Kareo could continue to enable Customer to use the Services or to modify it. If Kareo determines that these alternatives are not reasonably available, Kareo may terminate the Services (without any liability to Customer) upon notice to Customer and with the return of any prepaid and unused fees.

    2. b) By Customer

      Customer must indemnify, defend, and hold harmless Kareo against all third-party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:

      1. i. Customer’s breach of any representation, warranty, obligation, covenant or agreement in this Agreement,
      2. ii. any unauthorized use, access or distribution of the Services by Customer,
      3. iii. violation of any individual’s privacy rights related to information submitted under Customer’s account, or
      4. iv. fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account.

  10. 10) GOVERNING LAW

    This Agreement is governed by the State of California, substantive laws, without regard to conflict of laws principles. Any dispute arising out of or related to this Agreement must be brought in the state and federal courts for Orange County, California. Customer consents to the personal jurisdiction of such courts and waives any claim that it is an inconvenient forum. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.

  11. 11) MISCELLANEOUS OTHER TERMS

    1. a) Entire Agreement and Changes

      This Agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it.

    2. b) No Assignment

      Neither party may assign or transfer this Agreement or an order to a third party, except that this Agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.

    3. c) Independent Contractors

      The parties are independent contractors with respect to each other.

    4. d) Enforceability

      If any term of this Agreement is invalid or unenforceable, the other terms remain in effect.

    5. e) No Additional Terms

      Kareo rejects additional or conflicting terms of a form-purchasing document.

    6. f) Order of Precedence

      If there is an inconsistency between this Agreement and an order, the order prevails.

    7. g) Survival of Terms

      Any terms that by their nature survive termination or expiration of this Agreement, will survive.

    8. h) CISG Not Apply

      The Convention on Contracts for the International Sale of Goods does not apply.

    9. i) Customer Name

      Kareo may use Customer's name and logo in customer lists and related promotional materials describing Customer as a customer of Kareo, which use must be in accordance with Customer’s trademark guidelines and policies.