Customer Platform Agreement

Platform Agreement
You and Your Company (“Customer”) agree to this Platform Agreement comprising of the following Terms, Conditions and Business Associate Agreement (“BAA”), where the BAA is applicable, with SkedgeAlert, Inc., a Washington corporation (“SkedgeAlert”).

 

Recitals
SkedgeAlert facilitates scheduling appointments between service providers and their clients, using web or mobile applications, messaging, texting and other communication technologies (the “Platform”). Customer desires to utilize the Platform, in accordance with the terms of this Agreement.

 

Terms and Conditions

 

  1. Definitions. In addition to capitalized terms defined elsewhere in this Agreement, capitalized terms used in this Agreement shall have the following meanings:

    1. “Alert” is a singular scheduling request for a specific appointment date, time, and location sent by the Customer utilizing the Platform.

    2. “Authorized Person” is an individual who has been authorized by a Customer and approved by SkedgeAlert to access and use the Platform on behalf of Customer in accordance with the terms of this Agreement. Customer’s Authorized Person(s) may include, but are not limited to, Customer’s employees, consultants, contractors and agents.  

    3. “BAA” is the Business Associate Agreement attached as Exhibit A to this Agreement.

    4. “Client” is a client of Customer who has created a user account on the Platform. 

    5. “Client Information” means information, including personally identifiable information that a Client may share with Customer or SkedgeAlert.

    6. “Confirmed Appointment” means each appointment for which a Client has requested and confirmed a single appointment Alert. A Confirmed Appointment occurs on the date of appointment confirmation and not on the date of appointment.

    7. “Connection”, “Connected” is the functionality that, with the approval of both a specific Client and Customer, allows for the communication and sharing of Customer Data and Client Information between Customer and Client. This functionality will cease to be available in the event that the Connection is terminated. 

    8. “Customer” is the entity that has entered into this Agreement. 

    9. “Customer Data” means all electronic data or information provided by Customer (i) to SkedgeAlert, by any means or (ii) to Clients utilizing the Platform. Customer Data may include Client Information. 

    10. “Customer’s Trademarks” means the trademarks, service marks, service or trade names, logos, and other proprietary designations of Customer.

    11. “Effective Date” means the date set forth on the first page of this Agreement.

    12.  "Feedback” means any ideas, feedback, suggestions, enhancement requests, recommendations or inventions which Customer or its Authorized Person(s) create or contribute in part or in whole towards the Platform.

    13. “Fees” means the fees set forth in the Fee Schedule.

    14. “Fee Schedule” means the then current Fee Schedule applicable to the period set forth therein. This can be seen on the SkedgeAlert website.

    15. “Malicious Code” means any program, routine, device, or other feature, including without limitation, a so-called time bomb, automatic shut-down, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door, or any other harmful code or device which (i) is designed to delete, disable, deactivate, provide unauthorized access, interfere with, or otherwise harm any software, program, data, device, system or service; (ii) is intended to provide unauthorized access or to produce unauthorized modifications; or (iii) causes any software or system, or portion thereof, to be erased, to become inoperable or otherwise incapable of being used in the full manner for which it was designed and licensed for any reason.

    16. “Plan” means the type of SkedgeAlert services available for the Customer to subscribe to.

    17. “Platform” means the website, computer networks, servers, APIs and other data and information and technology provided or made available by SkedgeAlert to enable Customers and Clients to establish Connections and schedule and manage appointments using web or mobile applications, messaging, texting and other communication technologies.

    18. “Provider” means an individual who provides a service to a Client on behalf of Customer. Provider includes, but is not limited to, a physician, nurse practitioner, therapist, technician, specialist or other health care provider. It also includes many types of non-health care providers. 

    19. “SkedgeAlert Data” means all electronic data or information provided by SkedgeAlert on or through the Platform.

  2. SkedgeAlert Platform

    1. Right of Access.  Subject to the terms of this Agreement, SkedgeAlert grants to Customer a limited, non-exclusive right during the Term to access and use the Platform in the manner permitted by this Agreement. Customer may access and use the Platform only through the means SkedgeAlert designates and only in accordance with the policies and procedures SkedgeAlert designates for use of the Platform. No rights are granted to Customer other than those expressly set forth in this Agreement.  

    2. Permitted Use of Platform. Customer will use the Platform for the purpose of scheduling appointments between Clients and Customer and also for maintaining Customer’s appointment calendar.

    3. Customer Data. Customer owns all Customer Data and/or has all necessary rights to utilize the Customer Data and Client Information as set forth in this Agreement. Customer is responsible for obtaining all legally required consents from Clients necessary for sharing Customer Data and Client Information with SkedgeAlert in compliance with applicable laws. Customer grants SkedgeAlert a non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, create derivative works of, display, and perform the Customer Data for the purpose of operating, providing and developing the Platform, including the right to track and record usage patterns, trends, and other statistical data related to Customer’s use of the Platform.  Customer is fully responsible for backing up the Customer Data. Subject to applicable laws and the terms of the BAA attached hereto as Exhibit A, where the BAA is applicable, SkedgeAlert shall have no responsibility to use, disclose, store, retain, maintain, protect, update, amend, destroy or delete Customer Data for any reason or to any person or entity, including Customer or Clients; and SkedgeAlert shall have the absolute right to retain, store, transmit, modify, delete, destroy, anonymize, and otherwise manipulate the Customer Data, in SkedgeAlert’s sole discretion, and without notice to Customer. SkedgeAlert may delete or retain any Customer Data that remains in the Platform after this Agreement terminates, subject to the requirements set forth in the BAA, where the BAA is applicable.

    4. Customer’s Responsibilities. Customer agrees that it is solely responsible for (i) preserving its legal status and providing SkedgeAlert evidence thereof on request; (ii) compliance with the terms of this Agreement by Customer’s  Authorized Persons, vendors and subcontractors and all actions and omissions of its Authorized Persons, vendors and subcontractors under this Agreement; (iii) the accuracy, quality, integrity and legality of Customer Data and keeping the Customer Data complete, accurate, and up to date; (iv) using commercially reasonable efforts to prevent unauthorized access to or use of the Platform; (v) using the Platform in accordance with the terms of this Agreement; (vi) providing all software programs or services or equipment or labor which Customer uses in connection with access or use of the Platform at Customer’s sole cost; (vi) ensuring that Customer has all necessary rights to software programs or services that Customer uses in connection with the Platform, and that such activities do not and will not infringe the intellectual property or other proprietary rights of any third party;  (vii) protecting access to the Platform by Authorized Person(s) including the adequate protection of  passwords, login credentials, and devices; (viii) ensuring Customer applications and any software or services used in conjunction with the Platform are current with the latest security patches or updates; and (ix) complying with all applicable laws and regulations with respect to its use of the Platform. 

    5. Restrictions.  Without limiting the foregoing, Customer may not with respect to the Platform: (i) allow access or use by anyone other than its Authorized Person(s); (ii) send information on behalf of a third party (other than a Client) or directly or indirectly offer or provide the Platform as a service to third parties (other than Clients);  (iii) store or transmit material that is infringing, libelous, otherwise unlawful or tortuous, or that violates third-party privacy rights; (iv) provide identification, password or other information of it or its Authorized Person(s), to any service that, as determined by SkedgeAlert in its sole discretion, scrapes, crawls, data-mines, or otherwise uses such information; (v) interfere with or disrupt the integrity or performance of the Platform or any or third-party data contained therein; (vi) attempt to gain unauthorized access to the Platform; (vii) store or transmit any Malicious Code; (viii) post or distribute any updates, advertisements, or other information or send any information through the Platform that  denigrates, or discourages the use thereof, or promotes or solicits the use of services that are an alternative to or compete therewith (whether Customer’s or a third party’s); (ix) reproduce, reverse engineer, distribute, publish, transmit, modify, adapt, translate, sell, resell, rent, lease license, or otherwise commercially exploit the Platform or any part thereof; (x) copy, frame, or mirror any part or content of the Platform (other than copying or framing on Customer’s own internal networks or otherwise for Customer’s own internal business purposes); (xi) access the Platform to, whether directly or indirectly, build or develop or assist with the building or developing of a competitive product or service or copy any features, functions or graphics thereof; or (xii) remove, obscure, or alter any notice of any trademarks, service marks, service or trade names, logos, and other proprietary designations of SkedgeAlert.

  3. Authorized Persons, Account Security

    1. Customer will agree upon a list of Customer’s agents who are authorized to utilize the Platform (“Authorized Person(s)”). Customer’s Authorized Person(s) may include, but are not limited to Customer’s employees, consultants, contractors and agents, duly approved by Customer to utilize the Platform. Customer may add and/or replace Authorized Person(s).

    2. Each Authorized Person will establish a user account within the Platform and create a unique user identification and password.  Authorized Person(s) cannot share user identifications or passwords. Customer is responsible for all acts and omissions of its Authorized Person(s). Customer and its Authorized Person(s) will provide accurate, current and complete information about Customer and its Authorized Person(s) in any registration, forms, or other communication provided to SkedgeAlert, and will keep such information current and complete at all times.  Customer shall maintain the security of Customer’s and its Authorized Person(s) usernames, passwords and other similar information. Customer will promptly notify SkedgeAlert if Customer discovers or otherwise suspects any security breaches with respect to its Authorized Person(s), including any unauthorized use or disclosure of a username or password.

    3. Customer understands that any person with the usernames, passwords or similar information of Customer or its Authorized Person(s) may be able to access the Platform, including Customer Data and other confidential information. 

  4. Fees

    1. Fee Schedule.  Customer shall pay fees (“Fees”) in accordance with the terms of this Agreement and the then current Fee Schedule.  Fees are quoted and payable in United States dollars. The Fees and Fee Schedule are subject to change. SkedgeAlert will provide Customer with thirty (30) days prior notice of each subsequent change to the Fees and Fee Schedule.  

    2. Payment Terms.  Amounts payable to SkedgeAlert under this Agreement are invoiced and paid as set forth in the Fee Schedule or on the website.  Terms or conditions accompanying any purchase order created by Customer shall have no effect and shall not be binding on SkedgeAlert unless separately agreed to by SkedgeAlert in writing.

    3. Guarantee. Customer may be eligible for a refund for monthly provider fees under the following conditions:

      1. Where any one provider has not had 1 Confirmed Appointment booked in a monthly billing cycle using the SkedgeAlert services, and where;

        1. Customer must have sent at least 10 alerts per week for that provider during that monthly billing cycle,

        2. Customer must have sent alerts with at least 20 recipients on each alert

      2. The Customer must submit the request for each provider for the guarantee refund, following the conditions above, within 15 days of the end of their monthly billing cycle

      3. The refund amount per provider is the incremental provider monthly amount for the SkedgeAlert services plan selected

    4. Termination for Failure to Pay.  If any Fees payable are not received from Customer within fourteen (14) days of invoice, then at SkedgeAlert’s discretion, (a) such charges may accrue late interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) SkedgeAlert may terminate or otherwise suspend Customer’s access to and use of the Platform until such Fees are paid in full, and/or (c) SkedgeAlert may condition future use of the Platform on payment terms shorter than those specified herein.

    5. Payment Disputes.  SkedgeAlert shall not exercise its rights under the preceding section if (a) the applicable Fees are under reasonable and good-faith dispute; (b) all Fees due that are not under dispute are paid in full; and (c) Customer is cooperating diligently to resolve the dispute.

    6. Taxes.  SkedgeAlert shall invoice and Customer shall be responsible for all taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, or federal jurisdiction. Customer will be responsible for all costs and expenses incurred by Customer in association with this Agreement and accessing and using the Platform. SkedgeAlert shall be responsible for all taxes based on SkedgeAlert’s income, property or employees.  

    7. Renewals. The plan the Customer is currently subscribed to will automatically renew at the end of its term. SkedgeAlert will make efforts to remind the Customer of the upcoming renewal. For Customers who would like to change to a different plan at the end of their current plan’s term, which may amount to a difference in price, they should email SkedgeAlert at contactus@skedgealert.com.  

  5. Intellectual Property and Proprietary Rights

    1. Ownership; Reservation of Rights. SkedgeAlert owns all SkedgeAlert Data, the Platform, and, subject to the limited rights granted in this Agreement, reserves all right, title and interest in and to the Platform, including, without limitation, all Platform technology, content, features, design, trade secrets, patents, trademarks, copyrights and other intellectual property and proprietary rights. Customer agrees to claim no ownership or control over the Platform or SkedgeAlert Data.

    2. Feedback. Any ideas, feedback, suggestions, enhancement requests, recommendations or inventions which Customer or its Authorized Person(s) create or contribute in part or in whole towards the Platform (collectively, “Feedback”) shall be considered work(s) made for hire for SkedgeAlert and shall belong exclusively to SkedgeAlert.  If by operation of law, any of the Feedback, including all related intellectual property rights, are not owned in their entirety by SkedgeAlert automatically upon creation thereof, then Customer agrees to assign, and hereby assigns to SkedgeAlert, by the execution of this Agreement, the ownership of such Feedback, including all of Customer and its Authorized Person(s)’ rights, title and interest in and to the Feedback, including all copyrights, inventions, patents, and related intellectual property rights. If the foregoing conveyance of title or ownership to the Feedback, in part or in whole, is not possible for any reason, then Customer hereby grants to SkedgeAlert a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Platform and otherwise fully commercially exploit any and all Feedback.  The rights granted in this paragraph are absolute, irrevocable, world-wide and survive any termination of this Agreement.  Customer agrees that SkedgeAlert may contact and communicate with Customer and Clients to solicit feedback regarding the Platform.

    3. Use of Customer’s Trademarks; Marketing. Customer hereby grants to SkedgeAlert a limited revocable, royalty-free, worldwide license to use the Customer’s trademarks, service marks, service or trade names, logos, and other proprietary designations of Customer, (collectively “Customer’s Trademarks”), as follows: SkedgeAlert will incorporate Customer’s Trademarks into the Platform and into messages, communications, and correspondence with Customer and Clients. In addition, Customer authorizes SkedgeAlert to represent, market, and advertise Customer’s use of the Platform to third parties.

  6. Confidentiality; HIPAA; Privacy; Security; Communication

    1. Confidential Information.  “Confidential Information” of SkedgeAlert or of Customer means (a) non-public information, whether verbal or written, disclosed between the parties and relating to the parties’ research, design and development of software, source code, business plans, strategies, financial  strategies and plans, financial information, research and development and marketing, including, without limitation, trade secrets, software, source code, product design information, target clients, target customers, vendors and potential client lists, prices and pricing policies, research and development materials, prototypes, business plans, new products and services under development, and marketing, business and internet strategies; or (b) information which is designated as “confidential”. Confidential Information does not include information that (i) is, or becomes, publicly available without a breach of this Agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential; (iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; or (iv) is independently developed without reliance on the Confidential Information of the other party.  During and after the Term of this Agreement, neither party will use or disclose the other’s Confidential Information, except to its employees, contractors, advisors, or consultants who have a need for such access consistent with the purposes of this Agreement and who are under an obligation to maintain its confidentiality no less stringent than the terms of this Section 6.1.  Each party shall use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) in protecting the other party’s Confidential Information.  Either party may disclose the other’s Confidential Information if required to do so to comply with a court order or other government demand that has the force of law, provided that before disclosure that party must seek the highest level of protection available and provide the other party with reasonable notice to seek a protective order. Each party shall be entitled to, in addition to all other rights and remedies available at law or in equity, specific performance and injunctive relief requiring the other party to comply with the terms of this Section 6.1.

    2. HIPAA; BAA (Only applicable to businesses required to be HIPAA Compliant).  In the performance of this Agreement, SkedgeAlert may use, disclose, receive, create, transmit, or maintain Protected Health Information or Electronic Protected Health Information, as those terms are defined in 45 CFR § 160.103 (“PHI”).  Therefore, notwithstanding anything in this Agreement to the contrary, each party agrees to comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Privacy Rule and Security Rule, 45 CFR Parts 160 and 164 (the “Privacy Rule” and the “Security Rule” respectively), and the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and any amendments, regulations, rules, and guidance issued thereto.  Without limiting the foregoing, SkedgeAlert may be considered a “business associate” pursuant to 45 CFR § 160.103 and the parties agree to enter the Business Associate Agreement (“BAA”), which is attached hereto as Exhibit A and incorporated herein. Customer is responsible for obtaining any legally required HIPAA authorization(s) from Clients to allow Customer to utilize the Platform as set forth herein. To the extent there is any conflict or inconsistency between this Agreement and the BAA, the terms of the BAA shall control.

    3. Privacy - Client Information. SkedgeAlert’s use and disclosure of Client Information is governed by SkedgeAlert’s Terms of Use available at https://www.skedgealert.com/tos/ as well as SkedgeAlert’s Privacy Policy available at https://www.skedgealert.com/privacy/. Customer acknowledges, that in order for Clients to register for and utilize the Platform, Clients must separately agree to SkedgeAlert’s Terms of Use and Privacy Policy.  Customer agrees to update its privacy related notices and policies to reflect the use of Client Information permitted in the SkedgeAlert Privacy Policy.  

    4. Security.  SkedgeAlert agrees that the Platform will use industry standard security measures.  Nevertheless, SkedgeAlert has no control over and makes no warranty as to the security and privacy of the devices and systems utilized by Customer and its Clients to utilize the Platform. Customer assumes all risks associated with the unauthorized use or disclosure of Customer Data or Client Information, resultant from Customer or its Clients failure to maintain appropriate security systems and privacy settings on their systems or devices utilized to access the Platform. Customer further agrees and acknowledges that use of the Platform may involve Customer and Clients sending and receiving text messages. Customer assumes the risk that Customer Data and Client Information may be compromised or unintentionally disclosed because of the lack of encryption technology available with text messages.  

    5. Communication with Client. Customer authorizes SkedgeAlert to directly communicate with its Clients by e-mail, phone, mobile application, web-application, texting and SMS/SNS messaging for the purpose of registering Clients on the Platform, scheduling Client appointments, obtaining Client feedback, and as otherwise set forth in this Agreement and the BAA, where the BAA is applicable. Customer expressly acknowledges and warrants that it has obtained necessary and lawful consent from its Clients authorizing SkedgeAlert to communicate with its Clients as set forth above.  Customer acknowledges and agrees that, as part of the communication authorized herein, SkedgeAlert is expressly authorized to represent itself as Customer’s agent acting on Customer’s behalf for the purpose of registering Clients on the Platform, scheduling Client appointments, and obtaining Client feedback. In doing so, SkedgeAlert may send communications (by e-mail, phone, mobile application, web-application, texting and SMS/SNS messaging) which identify Customer as the ‘sender’ and originator of said communication, sent by SkedgeAlert, on Customer’s behalf. 

  7. Warranties and Disclaimer

    1. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement and to perform its obligations as contemplated by this Agreement.

    2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  8. Indemnification

    1. Each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party, its officers, directors, employees, agents and representatives (each, an “Indemnified Party”) from and against any and all third party damages, costs, judgments, penalties and expenses of any kind (including reasonable legal fees and disbursements) (a “Claim”) that may be obtained against or suffered by an Indemnified Party as a result of the gross negligence or intentional misconduct of the Indemnifying Party or any breach by an Indemnifying Party of any of its representations, warranties, covenants or obligations set forth in this Agreement.  

  9. Limitation of Liability

    1. Limitation of Liability. EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS REGARDING INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIAL INFORMATION OR WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100.

    2. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS REGARDING INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIAL INFORMATION OR WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

  10. Term and Termination

    1. Term of Agreement. The term (“Term”) of this Agreement shall be from the Effective Date until the end of the term of the plan selected.  However, the plan will automatically renew at the end of its term, for the same term period, unless the Customer notifies SkedgeAlert that they would like to terminate or change to a different plan.

    2. Termination for Cause. This agreement may be terminated if either party has violated a material term of this Agreement and that party has not cured the breach or ended the violation within a reasonable time. Upon termination, all unpaid Fees due and owing to SkedgeAlert will be invoiced and paid by Customer upon invoice. 

    3. Termination. For Customers who would like to cancel their current plan at the end of its term, they should email SkedgeAlert at contactus@skedgealert.com.  Otherwise, there is no termination allowed for customers during the plan term, with the exception of Sections 4.4 and 10.2 above. 

    4. Deletion of Customer Data; Return of SkedgeAlert Data. Following termination or expiration of this Agreement, SkedgeAlert shall have no obligation to retain, maintain or otherwise provide any Customer Data or Client Information and SkedgeAlert may delete all of the Customer Data and Client Information in SkedgeAlert’s systems or otherwise in SkedgeAlert’s possession or under SkedgeAlert’s control, subject to the applicable requirements set forth in the BAA, where the BAA is applicable. Upon termination of the Agreement, Customer shall promptly deliver to SkedgeAlert all originals and copies of all documents, physical or electronic records, software programs, media and all other materials containing any Confidential Information belonging to SkedgeAlert.

    5. Surviving Provisions. All provisions which are intended to survive termination or expiration of this Agreement, shall so survive.

    6. Suspension of Customer’s Account. Without limiting any rights of SkedgeAlert hereunder, SkedgeAlert may, with or without prior notice to Customer, immediately suspend Customer’s access and use of the Platform when: (a) Customer breaches any of Customer’s responsibilities, representations or warranties under this Agreement; (b) Customer uses or attempts to use the Platform in any manner that does not comply with this Agreement; or (c) SkedgeAlert believes suspension is in the best interests of the Platform, Customers or Clients. SkedgeAlert will notify Customer of any such suspension and will work in good faith with Customer to resolve the issue which resulted in suspension.  

  11. General Provisions

    1. Governing Law; Dispute Resolution. This Agreement shall be construed and controlled by the laws of the State of Washington, without giving effect to any choice or conflict of law provision or rule. Each party consents to exclusive jurisdiction and venue by the courts sitting in Pierce County, Washington for any dispute arising out of this Agreement. In the event of a dispute pertaining to this Agreement, each party agrees to attempt to negotiate in good faith an acceptable resolution. If a resolution cannot be negotiated, then each party agrees to submit the dispute to voluntary non-binding mediation before pursuing other remedies. In the event that any legal or administrative proceeding is brought by a party under this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

    2. Severability.  If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions. 

    3. No Waiver.  No failure or delay by a party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof. 

    4. Notices.  Customer agrees that all notices and other communications under this Agreement may be sent to Customer by e-mail to the email address provided by Customer or by delivery of the notice via the Platform.  Customer may provide notices to SkedgeAlert at contactus@skedgealert.com with a copy delivered to 2522 N. Proctor #273, Tacoma, WA 98406.

    5. No Agency.  The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

    6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    8. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.

Last Updated: June 20, 2022

 

Exhibit A

Business Associate Agreement

Your Company (“covered entity”); (individually a “party”, collectively the “parties”) agrees to this Business Associate Agreement, where Your Company is required to be HIPAA Compliant, with SkedgeAlert, Inc. (“business associate”). 

 

RECITALS
WHEREAS the purpose of this Agreement is to comply with the HIPAA Privacy and Security regulations found at 45 C.F.R. Part 160 and Part 164.  This Agreement is written to comply with the revisions enacted in the HITECH statute in February 2009, the regulation changes published in August 2009 and further updates published January 25, 2013; and

 

WHEREAS pursuant to the January 25, 2013, changes to the HIPAA regulations, HIPAA business associates are also regulated by the HIPAA Rules; and 

 

WHEREAS business associate and covered entity desire to enter into a HIPAA compliant business associate contract and further agree to comply with the unique requirements of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

  1. DEFINITIONS 

    1. Catch-All Definition: The following terms used in this Agreement shall have the same meaning as those terms set forth in the HIPAA Rules: Breach, Business Associate Contract, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

    2. Specific Definitions:

      1. Business Associate.  “business associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean SkedgeAlert, Inc.

      2. Covered Entity.  “covered entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Your Company.

      3. HIPAA Rules.  “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

  2. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

    1. Business Associate Agrees To:

      1. Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

      2. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;

      3. Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;

      4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information.

      5. Make available protected health information in a designated record set to the “covered entity” or “individual” as necessary to satisfy covered entity’s obligations under 45 CFR 164.524; or, in lieu of providing a designated record set, provide a ‘Summary’ or ‘Explanation’ of the protected health information requested in accordance with 45 C.F.R. § 164.524(c)(2)(iii));

      6. Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;

      7. Maintain and make available the information required to provide an accounting of disclosures to the “covered entity” or “individual” as necessary to satisfy covered entity’s obligations under 45 CFR 164.528;

      8. To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and

      9. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

    2. Permitted Uses and Disclosures by Business Associate:

      1. Business associate may use or disclose protected health information as necessary to perform the services set forth in the Platform Agreement entered contemporaneously herewith, between the covered entity and business associate, which includes, without limitation, all uses and disclosures of protected health information necessary to schedule, re-schedule, cancel, confirm, request, accept, deny, and opt-out of health care appointments between covered entity and its individual patients. Business associate is further authorized to directly communicate with covered entity and covered entity’s employees, agents and patients via e-mail, phone, mobile application, web-application, texting, and SMS/SNS messaging for the purpose of registering covered entity’s patients on business associate’s platform, as well as for the purpose of scheduling appointments with covered entity’s patients, and is otherwise authorized to use or disclose protected health care information in all manners necessary to perform business associate’s scheduling services.

      2. Business associate may use and disclose protected health information for the proper management and administration of the business associate or to carry out the legal responsibilities of the business associate, including without limitation, all uses and disclosures incidental thereto.

      3. Business associate may provide data aggregation services relating to the health care operations of the covered entity.   

      4. Business associate may only use or disclose an individual’s protected health information for ‘marketing’ as set forth in 45 CFR 164.508(a)(3) if business associate obtains a valid authorization from said individual in accordance with 45 CFR 164.508(b); and provided that business associate adheres to all HIPAA Rules governing the ‘marketing’ of said individual’s protected health information, as well as all HIPAA Rules governing the individual’s authorization related thereto.  

      5. Business associate may only use or disclose an individual’s protected health information in a manner which constitutes a ‘sale of protected health information’ of an individual’s protected health information as set forth in 45 CFR 164.508(a)(4), if business associate obtains a valid authorization from said individual as set forth in 45 CFR 164.508(b); and provided that business associate adheres to all HIPAA Rules governing the ‘sale of protected health information’ of said individual’s protected health information, as well as all HIPAA Rules governing the individual’s authorization related thereto.  

      6. Business associate is authorized to use protected health information to de-identify the information in accordance with 45 CFR 164.514(a)-(c).  Once de-identified, the business associate may use and disclose the de-identified information for business administration and other commercial purposes. 

      7. Business associate may use or disclose protected health information as required by law.

      8. Business associate agrees to make uses and disclosures and requests for protected health information consistent with business associate’s minimum necessary policies and procedures.

      9. Except as provided for in this Agreement, business associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity.

  3. OBLIGATIONS AND ACTIVITIES OF COVERED ENTITY

    1. Covered Entity Agrees To:

      1. Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate’s use or disclosure of protected health information.

      2. Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate’s use or disclosure of protected health information.

      3. Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect business associate’s use or disclosure of protected health information.

      4. Covered entity shall be responsible for ensuring the legitimacy and availability of medical appointments and medical services scheduled through the services offered by business associate.

      5. Covered entity shall be solely responsible for providing all medical and/or other services to covered entity’s patients and business associate shall have no responsibility or liability for the provision of any medical care or services offered or provided to covered entity’s patients. Further, while business associate will facilitate the scheduling of appointments between covered entity and its patients, business associate shall have no responsibility or liability for ensuring that an individual patient shows up or pays for any appointment scheduled by business associate. 

      6. Covered entity shall obtain the necessary and appropriate authorization(s) under the HIPAA Rules from Covered entity’s patients, for the purpose of allowing Covered entity to use and disclose patient’s Protected Health Information to business associate for the purposes set forth in the Platform Agreement.

    2. Permissible Requests by Covered Entity.  Except as authorized by this agreement, covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity. 

  4. MUTUAL OBLIGATIONS

    1. Mutual Representation and Warranty. Each party represents and warrants to the other party that all of its employees, agents, representatives and members of its work force, whose services may be used to fulfill obligations under this Agreement, are or shall be appropriately informed of the terms of this Agreement and are under legal obligation to fully comply with all provisions of this Agreement.

  5. TERM AND TERMINATION

    1. Term: The Term of this Agreement shall be effective as of the Effective Date and shall terminate upon the termination of the parties’ Platform Agreement or on the date covered entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner. 

    2. Termination for Cause: Business associate authorizes termination of this Agreement by covered entity, if covered entity determines business associate has violated a material term of the Agreement, and business associate has not cured the breach or ended the violation within a reasonable time. 

    3. Obligations of Business Associate Upon Termination: Upon termination of this Agreement for any reason, business associate, with respect to protected health information received from covered entity, or created, maintained, or received by business associate on behalf of covered entity, shall:

      1. Retain only that protected health information which is necessary for business associate to continue its proper management and administration or to carry out its legal responsibilities;

      2. If feasible, destroy the remaining protected health information that the business associate still maintains in any form. If not feasible to destroy, business associate will extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the destruction of the information infeasible. In lieu of destroying the protected health information, the business associate may elect to de-identify the information such that it is no longer deemed protected health information in accordance with 45 CFR 164.514(a)-(c); 

      3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as business associate retains the protected health information;

      4. Not use or disclose the protected health information retained by business associate other than for the purposes for which such protected health information was retained and subject to the same conditions set forth herein for “Permitted Uses and Disclosures by Business Associate” which applied prior to termination; and

      5. When protected health information retained by business associate is no longer needed by business associate for its proper management and administration or to carry out its legal responsibilities, then business associate will adhere to Section 5.3.2 herein.

      6. Survival.  The obligations of business associate under this Section shall survive the termination of this Agreement.

  6. MISCELLANEOUS

    1. Regulatory References: A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.

    2. Amendment: The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.

    3. Interpretation: Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.

    4. Confidential Information:  Business associate now owns and will hereafter develop, compile and own certain proprietary techniques, trade secrets, and confidential information which have great value in its business (collectively, “Confidential Information”).  Covered entity agrees that at all times during or subsequent to the term of this Agreement, that covered entity shall, to the maximum extent permitted by applicable law, keep confidential and not divulge, communicate, or otherwise use said Confidential Information. 

    5. Governing Law:  Washington law shall govern the interpretation of this Agreement.  Pierce County shall be the venue of any mediation, arbitration or litigation arising out of this Agreement.

    6. Prevailing Party:  In any dispute concerning this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement.

    7. Assignment: Covered entity shall not assign, subcontract, delegate, or transfer any obligation, interest or claim to or under this Agreement without the prior written consent of business associate. Covered entity hereby acknowledges and agrees that business associate may assign this Agreement, including all business Associates rights and obligations herein, to any business affiliate and/or business successor corporate entity and without covered entity’s permission.  

    8. Notices: Notices required hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, e-mailed, or mailed to the parties provided herein.

    9. No Third-Party Beneficiaries.  This Agreement shall be for the sole benefit of the parties hereto, and nothing contained herein shall create a contractual relationship with, or create a cause of action in favor of, a third party against either party hereto.

    10. Waiver: A waiver or failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver of such provisions, nor shall the same constitute a waiver of any other provision of this Agreement.

    11. Severability and Survival: If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable.  The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement.

    12. Entire Agreement: This Agreement and the attached Exhibits, as modified herein, contain the entire agreement between the parties as to the services to be rendered hereunder.  All previous and contemporaneous agreements, representations or promises and conditions relating to the subject matter of this Agreement are superseded hereby. 

    13. Modification:  No modification or amendment of this Agreement shall be effective unless agreed to in writing by the Parties.

Last Updated: June 20, 2022