LindaCare Terms and Conditions
1. LindaCare Services.
(a) LindaCare shall provide Technical Services to the Patients (collectively, the “Technical Services”) under the general supervision of Provider. The Technical Services shall include the following:
· Monitoring Patient data for all levels of alerts between scheduled remote follow ups;
· Scheduling of Patient remote follow up monitoring and device monitoring at scheduled time intervals;
· Notifying Provider of patient alerts received in accordance with the Provider protocols and in the Provider’s selected method of notification (the “Provider Protocols”);
· Providing the Provider with electronic or paper reports of each patient remote follow up; and
· Acting as an intermediary between the patient and manufacture for replacement of transmitters when required.
(b) LindaCare shall have no liability for the determination of which of Provider’s Patients shall be enrolled in the Technical Services, and Provider shall indemnify and hold harmless LindaCare for any claims or damages, including reasonable attorneys’ fees, asserted against LindaCare by a third party, based upon decisions to enroll any particular patient in the Technical Services arising out of Provider’s negligence or intentional misconduct. Notwithstanding anything contained herein to the contrary, LindaCare shall not be responsible for providing review, analysis, and/or diagnostic opinion of patient reports.
2. Provider Responsibilities.
(a) Provider shall be responsible for general supervision of the Technical Services provided by LindaCare. General supervision means that the Technical Services are furnished under the Provider’s overall direction and control even though the Provider’s presence is not required during the performance of the Technical Services. Under general supervision, The Provider is responsible to ensure that the non-physician personnel who perform the Technical Services are appropriately trained and that the equipment and supplies are appropriately maintained.
(b) Provider shall be responsible for identifying all Patients requiring Technical Services and, if required by law, for obtaining from patients any required authorization or consent to receive Technical Services from personnel supplied by LindaCare.
(c) Provider shall assist LindaCare with obtaining access to the remote monitoring data from the applicable vendors as necessary for Provider to provide the Technical Services. In addition, Provider shall promptly provide LindaCare with such information, including demographic information, device information, billing and insurance information as reasonably requested by LindaCare for each of Provider’s patients receiving Technical Services from LindaCare. In the event that a patient is transferred from another provider of Technical Services, Provider shall promptly contact such existing services provider to direct and effectuate the transfer of service to LindaCare.
(d) Provider agrees to receive the reports provided by LindaCare to Provider in connection with the Technical Services by the mode of transmission elected in writing and sent to LindaCare by the Provider. In the event that Provider wishes to change the mode of transmission for such reports, Provider must so advise LindaCare of the requested new mode of transmission in writing at least ten (10) days in advance of such change.
(e) Provider shall be responsible for any and all review, analysis, and/or diagnostic opinion of patient reports provided by LindaCare. Nothing in this Agreement shall be construed to interfere with or in any way affect Provider’s obligation to exercise independent medical judgment in rendering health care services to patients, nor shall this Agreement change or alter any clinical relationship which exists or may come to exist between Provider and a patient. Personnel supplied by LindaCare to perform the Technical Services are under the dominion and control of Provider when performing the Technical Services for the Patients, and \
(a) Provided Provider continuously complies with the terms and conditions of this Agreement, LindaCare hereby grants, and Provider hereby accepts, a nonexclusive, nontransferable, royalty-free license, without right of further sublicense, to access and use the System for the purposes set forth in this Agreement (the “Access License”). The Access License shall remain in effect during the Term of the Agreement and will expire immediately upon the expiration, cancellation, or termination of the Agreement.
(b) Provider, at its sole expense, shall be responsible for providing the minimum computer system requirements and technical expertise to support access to the System. Software provided by third parties (“Third-Party Software”) (e.g., PDF viewers) may be required to enable the full functionality of the System. Use by Provider of Third-Party Software shall be subject to all license restrictions of the respective owner(s). LindaCare disclaims any and all warranties and liabilities concerning the use of Third-Party Software. Provider shall comply with all terms and conditions of any licenses applicable to Third-Party Software and to any components of the System of which Provider is not the intellectual property owner.
(c) LindaCare shall assign to Provider (i) a unique uniform resource locator (“Provider URL”) on the World-Wide Web for accessing the System via the Internet or a dedicated communications line, (ii) a unique provider identifier for secure access to the System, and (iii) a unique user identifier (User ID) and password for an Authorized User with administrative privileges (“Admin User”).
(d) Provider agrees that LindaCare retains all rights, title and interest in the System, including, and without limitation, any and all portions, modifications and derivative works of the System. Provider further agrees that it will not acquire any rights in the System other than the rights expressly specified in this Agreement.
4. Representations and Warranties.
(a) Provider hereby represents, warrants and covenants, as of the Effective Date and throughout the term of this Agreement, that the Provider:
· has the power and authority to enter into this Agreement;
· is under no contractual or other restriction or obligation which is inconsistent with the execution of this Agreement, the performance of its/his/her duties hereunder;
· he/she or its physicians maintain(s) a valid, unlimited, and unrestricted license to practice medicine in those state(s) where he/she will be providing professional medical services including general supervision of the Technical Services if required by law;
· is not the subject of any pending federal or state disciplinary action or sanction, and is not currently and has never been subject to, or threatened with, any investigation, censure, probation, suspension or other adverse action with respect to Physician’s license in any jurisdiction; and
· has never been suspended, terminated, excluded or sanctioned by Medicare, Medicaid or any other payor program. In the event any of the foregoing representations and warranties becomes untrue during the Term, Provider shall immediately notify LindaCare.
(b) LINDACARE represents and warrants that it is authorized to perform the Technical Services through its personnel and owns or has all necessary rights and licenses to perform the Technical Services, including the System, to Client in accordance with this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. LINDACARE SPECIFICALLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SERVICES AND SUBJECT MATTER OF THIS AGREEMENT.
(a) In consideration for the provision of the Technical Services, Provider shall pay LindaCare the fees and other charges that may be applicable and described in the Services Agreement.
(b) Provider shall have sole authority to obtain reimbursement from the third-party payors, including Medicare, for any services provided hereunder. Provider shall have sole authority for determining whether the Technical Services are reimbursable by the various third-party payors and shall indemnify LindaCare for any costs or liabilities incurred by LindaCare as a result of Provider seeking reimbursement from third parties for the Technical Services. Provider is solely responsible for determining Medicare’s and other payors’ payment policies and billing in accordance with these policies.
(c) LindaCare shall not refund any fees if Provider makes a determination regarding the retroactive ineligibility of a Patient, including ineligibility of a Patient for insurance coverage for the Technical Services.
(d) No later than thirty (30) days after invoice date, Provider shall pay LindaCare the fees and charges set due hereunder. In the event of late payment, Provider shall pay LindaCare a late fee as outlined in the Services Agreement. Notwithstanding the foregoing, LindaCare shall have the right to discontinue the provision of Technical Services to Provider until all overdue fees and other charges are paid.
(e) All fees for the Technical Services are exclusive of any applicable taxes, duties or governmentally-imposed levies (including, but not limited to, value-added taxes, sales, property or use taxes) or shipping, transportation and insurance costs, all of which are the sole responsibility of the Provider and shall be promptly paid or reimbursed by Provider.
(f) LindaCare reserves the right to change fees for the use of the Technical Services at the end of one (1) year after the Effective Date by giving not less than thirty (30) days written notice prior to the Effective Date. The written notice shall include the amount of the fee change.
(g) In the event of a fee increase, LindaCare will honor orders / service placed by Provider prior to the effective date of the applicable fee increase with delivery dates within thirty (30) days of such date. The effective date for any such fee increase will not be less than thirty (30) days after notice of such increase is given to Provider.
6. Term and Termination.
(a) This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year thereafter (the “Initial Term”), unless otherwise terminated as provided below. Thereafter, unless either party provides ninety (90) days’ notice of non-renewal or the Agreement is otherwise terminated as herein provided, the Agreement shall automatically renew for additional successive one (1) year terms (each a “Renewal Term”, and together with the Initial Term, collectively, the “Term”).
(b) If either party materially breaches this Agreement, the non-breaching party may provide written notice specifying the nature of the breach. The breaching party shall have fifteen (15) days to cure from receipt of notice. If not so cured, the non-breaching party may immediately terminate this Agreement.
(c) At any time during the Term, a party may terminate this Agreement for convenience and without cause, upon providing the other party sixty (60) days prior written notice.
(d) Provider agrees any provisions of this Agreement that by their terms, require performance after the termination or expiration of the Agreement or have application to events that may occur after such termination or expiration, shall survive and continue after any termination or expiration of this Agreement.
7. Compliance with Law.
(a) Each party hereto shall at all times comply with all applicable:
· federal, state and local laws, rules, regulations, agency directives and policies of governmental authorities and
· Medicare, Medicaid and third-party payors’ rules, regulations and policies concerning treatment, reimbursement and billing procedures or practices.
(b) In addition, each party agrees to comply with all applicable law regarding the use and disclosure of patient information, including, without limitation, the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 and related regulations promulgated by the Secretary (commonly referred to as the HITECH Act), and the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d and any current and future regulations promulgated thereunder including, without limitation, the federal privacy security regulations contained in 45 C.F.R. Parts 160 and 164 (collectively “HIPAA”). Each party agrees not to use or further disclose, or to cause the use or further disclosure, of any Protected Health Information (as defined in 45 C.F.R. § 164.501) or Individually Identifiable Health Information (as defined in 42 U.S.C. § 1320d), other than as permitted by HIPAA Requirements and the terms of this Agreement. In addition to the HIPAA Requirements, each party agrees to be bound by all federal, state and local rules and regulations which require parties to keep patient information confidential, private and secure.
(c) In the event there is a change in the applicable law, or in the reasoned interpretation of any of the applicable law or the adoption of new federal or state legislation, any of which are reasonably likely to materially and adversely affect the manner in which either party may perform under this Agreement or which shall make this Agreement unlawful, the parties shall immediately enter into good faith negotiations regarding a new arrangement pursuant to this Agreement that complies with the law regulation or policy and that approximates as closely as possible the economic position of the parties prior to the change. If the Agreement cannot be so modified, then any party may terminate its participation no less than thirty (30) days after the start of good faith negotiations (or if any party refuses to respond to a request to negotiate, then the notifying party may notify the non- responding party in writing that its failure to begin good faith negotiation immediately will result in termination of the Agreement with regard to that party upon the ninetieth (90th) day following receipt of notice by the non-complying party).
“Confidential Information” means non-public information that the party disclosing the information designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such.
Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which:
(a) is generally available to the public without breach of this Agreement;
(b) is lawfully obtained from a third party without a confidentiality obligation;
(c) is known to the receiving party without a confidentiality obligation prior to such disclosure; or
(d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. Each party agrees that it shall not use in any way, except as expressly permitted by this Agreement, or disclose to any third party except as may be required by law, any of the other party’s Confidential Information. Each party shall take all reasonable precautions necessary to protect the confidentiality of the other party’s Confidential Information. This Section 6 shall survive the expiration or termination of this Agreement.
9. Relationship of Parties.
In making and performing this Agreement, the parties act, and shall continue to act at all times while it is in effect, as independent contractors. Nothing in this Agreement constitutes or should be construed to be or to create a principal-agent, employer-employee, or master servant relationship between the parties hereto. As an independent contractor, a party (and their employees) shall not be entitled to participate in, or make any claim of entitlement to, any salary, wages and/or employment-related compensation, health insurance, retirement benefits, disability benefits, vacation pay, sick leave or any other employee programs or benefits of any kind of the other party.
10. Indemnification; Limitation of Liability.
(a) The liability, if any, of LindaCare to Provider for damages, whether arising from breach of this Agreement, breach of warranty, negligence, indemnity hereunder, strict liability or other tort, or otherwise with respect to the actions or omissions by LindaCare with respect to this Agreement and/or the Technical Services, is limited to an amount not to exceed Twenty Five Thousand Dollars ($25,000.00). NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL LINDACARE OR ITS AFFILIATES, SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING (INCLUDING DOWNTIME COSTS, COSTS RELATED TO PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICE OR DAMAGES FOR LOSS OF DATA).
(b) Provider shall indemnify and hold harmless LindaCare and each of its shareholders, parents, subsidiaries, Affiliates, officers, directors, managers, employees, agents and representatives against any and all claims, losses and actions (including reasonable attorneys’ fees and costs), caused, in whole or in part, by Provider’s (or its subcontractors or agents) negligence, willful misconduct, fraud, embezzlement, or any other dishonest act in the performance of its obligations under this Agreement, including, without limitation, and claims with respect to Provider’s billing and collection for its services or Provider’s breach of any representation, warranty, or covenant contained herein.
(c) LindaCare will, at its own expense, indemnify, defend, and hold harmless Provider and its officers, directors, employees and agents, from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses resulting from or pertaining to any third-party claim that the System infringes the intellectual property rights of any third party. LindaCare’s indemnification obligation under this Section 10 will not apply to claims in connection with:
· Provider’s use of the System outside the scope of the Access License;
· any infringement caused by use of third-party materials in combination with the System;
· any third-party claim not promptly reported to LindaCare, solely to the extent that LindaCare is prejudiced by such delay;
· any modifications to the System made by any party other than LindaCare or a party acting at LindaCare’s express direction; and
· claimed infringement of any right in which Provider or any subsidiary or affiliate of Provider has any ownership or interest (by license or otherwise).
(d) The provisions of this Section 10 shall survive the expiration or termination of this Agreement.
(a) Provider shall maintain, at all times during the Term, professional liability insurance on an occurrence basis in amounts not less than $1,300,000 per occurrence and $3,900,000 in the aggregate, and Provider shall ensure that each of the Physicians maintains such levels of professional liability insurance.
(b) Each party hereto shall maintain, at all times during the Term: (i) general liability insurance with coverage limits in an amount not less than $1,000,000 in the aggregate, (ii) such other insurance as may be required by statute for its employees and contractors, including but not limited to workers’ compensation insurance; and (iii) cybersecurity liability insurance with coverage limits in an amount not less than $1,000,000 in the aggregate.
(c) Upon request of the other party, each party shall provide the other party with copies of the applicable certificates of insurance required hereunder. The insurance coverage required herein shall not be deemed a limitation of the indemnities contained herein.
LindaCare may subcontract, in whole or in part, the performance of any of its obligations under this Agreement without the consent of the Provider. In the event of a subcontracting by LindaCare, LindaCare shall remain responsible for the provision and performance of such services by its subcontractor(s) and all payments to its subcontractor(s).
13. Force Majeure.
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions, wars, insurrections, natural disasters and/or any other cause beyond the reasonable control of the party whose performance is affected.
Any notice required or permitted to be given under this Agreement shall be sufficient if in writing, when delivered by hand, one (1) day after deposit with a nationally recognized overnight carrier for next day delivery or three (3) days after sent by certified mail, return receipt requested, to the parties at the addresses set forth on the first page hereof (unless such other contact information is provided to the other party in writing).
All terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by each of the parties hereto, their respective legal representatives and their permitted successors and assigns. Provider’s rights, obligations or liabilities under this Agreement may not be assigned in whole or in part by Provider, including by change in control of the ownership of the Provider, to a third party without the prior written consent of LindaCare.
This Agreement constitutes the entire understanding and agreement between the parties concerning the subject matter hereof and supersedes all prior written or oral agreements or understandings existing between the parties concerning the subject matter hereof. Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, or extend the scope or intent of this Agreement or any provision hereof.
This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut, exclusive of principles of conflicts of law. The parties agree that all disputes shall be litigated in the state and federal courts of Hartford County, Connecticut. The parties hereby consent to jurisdiction in the aforementioned courts.
Each party to this Agreement acknowledges that it has been represented by independent legal counsel of its own selection in connection with the negotiation, review and execution of this Agreement. This Agreement may not be modified except by express written agreement of the parties. The invalidity or unenforceability of one or more provisions of this Agreement shall not affect any other provision of this Agreement.
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and both of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes.
The provisions of this Section 14 shall survive expiration or termination of this Agreement.