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Terms & Conditions for Client Agreements

TERMS AND CONDITIONS FOR ProEdTech, LLC D/B/A HIPAA INSTITUTE CLIENT SERVICES AGREEMENTS

  1. Applicability.  
    • These terms and conditions for services (these "Terms") are the only terms that govern your relationship with the ProEdTech, LLC d/b/a HIPAA Institute or one of its divisions (collectively, "HPI" or “Company”) under a separate ProEdTech, LLC d/b/a HIPAA Institute Client Services Agreement entered into by the Company with you as the Client. Your ProEdTech, LLC d/b/a HIPAA Institute Client Services Agreement has provided for your agreement to the Terms and Conditions herein.
    • The accompanying ProEdTech, LLC d/b/a HIPAA Institute Client Services Agreement and these Terms and Conditions for ProEdTech, LLC d/b/a HIPAA Client Services Agreement (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and Conditions for ProEdTech, LLC d/b/a HIPAA Client Services Agreement and the ProEdTech, LLC d/b/a HIPAA Institute Client Services Agreement, this Agreement shall control.
    • These Terms prevail over any of Client's general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.
  2. Services. Company shall provide the services to Client as described in the HIPA Institute Client Services Agreement (the "Services").
  3. Performance Dates. Company shall use reasonable efforts to meet any performance dates specified in the HIPA Institute Client Services Agreement and any such dates shall be estimates only.
  4. Client's Obligations. Client shall:
    • All services identified in the HIPAA Institute Client Services Agreement will be made available to Client via customized portals on hipaainstitute.com.
    • Remit the entire amount of the Service Fee as Invoiced and make such payments as provided in the HIPAA Institute Client Services Agreement which have not been paid within (30) days of the due date. Failure to make timely payments may result in suspension of the service and thereafter, until paid, shall be subject to a late payment charge at the lesser of (1.5%) per month.
    • Client is responsible for the payment of any present or future sales, use, excise or other similar tax (excluding taxes based on HIPAA Institute's net income) applicable to the services provided.
    • Any HIPAA Institute material submitted to the client is for client’s internal use only. Client may not resell or otherwise commercially gain from divulging the material to third parties without written consent from HIPAA Institute.
    • Neither party shall be liable for any failure or delay in performance under this Agreement, other than for delay in the payment of money due and payable, to the extent failures or delays beyond that party’s reasonable control and occurring without its fault or negligence. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
    • Cooperate with Company in all matters relating to the Services and provide such access to Client's premises (if applicable), and such office accommodation and other facilities as may reasonably be requested by Company, for the purposes of performing the Services;
    • Respond promptly to any Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement;
    • Provide such client materials or information as Company may reasonably request to carry out the Services in a timely manner and ensure that such client materials or information are complete and accurate in all material respects; and
    • Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
  5. Client's Acts or Omissions. If Company's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
  6. Change Orders.  
  7. Fees and Expenses; Payment Terms; Interest on Late Payments.  
    • In consideration of the provision of the Services by the Company and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Health Care Placement Agreement.
    • Client agrees to reimburse Company for all reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services.
    • Client shall pay all invoiced amounts due to Company on receipt/within 30 days from the date] of Company's invoice. Client shall make all payments hereunder in US dollars.
    • In the event payments are not received by Company within 30 days after becoming due, Company may:
      • charge interest on any such unpaid amounts at a rate of one and one-quarter (1and 1ΒΌ% ) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
      • receive all costs of litigation, including but not limited to attorneys fees, expert fees, etc.
      • suspend performance for all Services until payment has been made in full.
  8. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
  9. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Company in the course of performing the Services[, including any items identified as such in the Health Care Placement Agreement] (collectively, the "Deliverables") [except for any Confidential Information of Client or client materials] shall be owned by Company. Company hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
  10. Confidential Information.  
    • All non-public, confidential or proprietary information of Company, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to clients, pricing, and marketing (collectively, "Confidential Information"), disclosed by Company to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of the Company. Confidential Information does not include information that is:
      • in the public domain;
      • known to Client at the time of disclosure; or
      • rightfully obtained by Client on a non-confidential basis from a third party.
    • Client agrees to use the Confidential Information only to make use of the Services and Deliverables.
    • Company shall be entitled to injunctive relief for any violation of this Section.
  11. Representation and Warranty.  
  12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
  13. Limitation of Liability.  
    • IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO HEALTH CARE PROVIDER PLACEMENT AGREEMENT.
    • The limitation of liability set forth in Section 13(b) above shall not apply to (i) liability resulting from Company's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Company's negligent acts or omissions.
  14. Termination. In addition to any remedies that may be provided under this Agreement, Company may terminate this Agreement with immediate effect upon written notice to Client, if Client:
    • Fails to pay any amount when due under this Agreement and such failure continues for 30 days after Client's receipt of written notice of nonpayment;
    • Has not otherwise performed or complied with any of the terms of this Agreement, in whule or in part; or
    • Becomes insulvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  15. Waiver. No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  16. Force Majeure. The Company shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable contrul of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revulution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage[, provided that, if the event in question continues for a continuous period in excess of 90 days, Client shall be entitled to give notice in writing to Company to terminate this Agreement.
  17. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in viulation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
  18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  19. No Third-party Beneficiaries. This Agreement is for the sule benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  20. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of North Carulina without giving effect to any choice or conflict of law provision or rule or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of North Carulina.
  21. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of North Carulina and each party irrevocably submits to the exclusive venue and jurisdiction of such courts in any such suit, action or proceeding.
  22. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the HIPAA Institute Client Services Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified, registered or overnight mail (in each case, return receipt requested, delivery confirmation and postage prepaid). Email shall also be considered notice if the recipient acknowledges the email Notice in writing via email. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  23. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  24. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the fullowing provisions: Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction.
  25. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.