PATIENTFI SERVICE AGREEMENT
This SERVICE AGREEMENT, its attached exhibits and addenda, and as amended from time to time in accordance with the terms hereof (the "Agreement" or “Service Agreement”), by and between PATIENTFI, LLC, a Delaware limited liability company with offices at 15615 Alton Parkway, Suite 450, Irvine, California 92618 ("PatientFi"), and the undersigned healthcare provider (the "Practice"), is entered into and made effective as of ________________(the "Effective Date"). PatientFi and the Practice are each a "Party" and together they are the "Parties" in the Agreement.
PatientFi has developed a program that will allow the Practice to offer payment plans to patients to finance healthcare procedures (the "Program"). The Program entails use of cloud-based tools administered by PatientFi through which: (i) patients and the Practice can enter into unsecured retail installment contracts serviced and/or purchased by PatientFi (each, a "RIC" or a "Patient Contract"); and (ii) patients can enter into agreements with third party financing sources and lenders to obtain unsecured installment loans (each, a “Loan”) that patients may use to purchase healthcare procedures from the Practice, evidenced by a promissory note payable to and serviced by such third party financing sources and lenders (each, a “Loan Agreement”). The Program will assist the Practice in identifying credit-worthy applicants and will also generate the consumer application, Patient Contract, and related disclosures. The Practice wants access to the Program and a license to use the PatientFi web-based system (the "System") to originate and manage Patient Contracts and to allow patients to obtain Loans from third party financing sources and lenders. This Service Agreement sets forth the terms and conditions under which PatientFi will provide the Practice with access to the System and certain other services in connection with the Program. Now, therefore, in consideration of the mutual covenants and promises contained in this Service Agreement, the Practice and PatientFi agree as follows:
1. PATIENTFI SERVICES AND FEES
In exchange for the Practice’s agreement to the terms of this Service Agreement and payment of fees required by this Section, PatientFi will grant the Practice a non-transferable, non-exclusive license to use the System and provide the services described in this Section according to the terms and conditions of this Service Agreement (the "Service" or the “Services”). The Practice understands and agrees that the terms of this Service Agreement, including Services and fees, may be amended from time to time in accordance with Section 8(n) of this Service Agreement.
(a) Onboarding services
(i) Qualify the Practice for inclusion in the Program and for approval to utilize the automated clearing house ("ACH") process via Actum Processing LLC (a third-party provider) or such other processor as PatientFi designates
(ii) Provide the Practice with access to the System, including the provision of unique access codes
(iii) Train the Practice's staff via webinar demonstrations, training packets and in-office brochures on:
(A) inputting pricing for treatments and procedures offered by the practice
(B) pre-screening patients using PFI Check
(C) taking credit applications
(D) completing patient forms, including contract documents, as necessary for individual patient transactions
(E) inputting patient data into the System
(b) On-going services
(i) Maintain the System
(ii) Provide the Practice with monthly reporting to track activity
(iii) Provide ongoing training for the Practice personnel regarding any modifications to the Program or the System
(iv) Receive Loan proceeds from third party lenders that become due to the Practice and remit or apply such Loan proceeds as directed or agreed by the Practice
(c) Service Functionality:
(i) Throughout the Agreement term, use of PatientFi’s proprietary credit underwriting software to score patients and provide risk-adjusted pricing on behalf of the Practice. Credit underwriting may include a FICO score pull from TransUnion, banking data pull, fraud detection, income verification and auto-payment set-up. The System will generate RICs between the Practice and a patient/borrower.
(ii) PFI Check pre-screen tool for Practice staff to screen the credit worthiness of a patient/buyer prior to initial consult
(d) Fees; Advances
(i) The Practice agrees to transfer ownership of all approved Patient Contracts and their servicing rights to PatientFi as provided in the Patient Contract Purchase and Sale Agreement, after application of a purchase discount rate equal to: three percent (3%) of the Amount Financed of each Patient Contract with a term of 47 months or less; or five percent (5%) of the Amount Financed of each Patient Contract with a term of 48 months or more (the "Purchase Discount Rate"). PatientFi’s payment to the Practice of a Purchase Amount is equal to: ninety-seven percent (97%) of the Amount Financed for Patient Contracts with a term of 47 months or less; or ninety-five percent (95%) of the Amount Financed for Patient Contracts with a term of 48 months or more.
(ii) PatientFi may, from time to time, in its sole and absolute discretion, make advances to the Practice for Loan proceeds payable to it by third party lenders and, in such instances, the Practice agrees to repay such advances upon receipt of such Loan proceeds, directly or through any agent therefor, from such third party lenders.
2. PRACTICE RESPONSIBILITIES
(a) Hardware, Software and Telecommunications. The Practice is responsible for obtaining and maintaining all hardware, software (and related licenses) and communications equipment necessary to access and use the Services and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Services. The Practice agrees it has been advised of and can comply with all minimum networking, hardware, software (and related licenses), firewalls and/or environmental conditions, and communications requirements applicable to the Services.
(b) Actions of End Users. The Practice is solely responsible for its actions and the actions of its end users while using the Service and for the contents of its transmissions through the Services. The Practice shall ensure all end users of the Service comply with the Practices obligations under this Service Agreement. The Practice agrees:
(i) to abide by all laws relating to the Practice’s use of the Services, including without limitation all Laws regarding the transmission of Protected Consumer Information (as herein defined) and export control Laws;
(ii) to not upload or distribute files intentionally that contain viruses, malicious files or other harmful code or any other similar software or programs that may access or damage the operation of the Services or another's computer or other devices;
(iii) to not interfere with or disrupt the Services, the data contained in the Services or networks connected to the Services intentionally;
(iv) to not send or store obscene, threatening, libelous or otherwise tortious material intentionally, including material harmful to children or violative of third party privacy rights, and to not use the Service to engage intentionally in any activity that infringes, dilutes, misappropriates, or otherwise violates the Intellectual Property Rights of others;
(v) to comply with all regulations, policies and procedures of networks connected to the Services;
(vi) to not attempt to gain unauthorized access to the Services or its related systems or networks; and
(vii) to notify PatientFi promptly of any unauthorized use of any password or account or any other known or suspected breach of security.
(c) Passwords and Access.
(i) The Practice shall maintain control over and the confidentiality of all end user login IDs, usernames, passwords, and other access credentials for the Service, whether provided by PatientFi or selected by the Practice.
(ii) The Practice is responsible for all use of the Services by those who have access to the Services through the Practice (directly or indirectly), except to the extent unauthorized use of the Service credentials is caused by PatientFi’s failure to comply with the Agreement’s security requirements.
(iii) The Practice agrees that any employee(s) or representative(s) the Practice designates through the System or otherwise as a “Super Administrator” shall be individually authorized to designate other Practice employee(s) and representative(s) authorized to use the System, as evidenced by the establishment and maintenance of end user login IDs, usernames, passwords, and other access credentials for the Service.
(iv) The Practice and its designated Super Administrator have the right and the duty to notify PatientFi through the System about any decision made by the Practice to revoke or cancel the right or ability of any current or former employee or representative of the Practice to use a login ID, username, password and other access credentials for the Service.
(v) The Practice agrees that PatientFi shall have a reasonable period of time, at least three (3) business days after receiving a revocation or cancellation notice through the System from the Practice and its Super Administrator, to process any such request to revoke or cancel any person’s right to use any login ID, username, password and other access credentials for the Service.
(vi) The Practice is solely responsible for any and all activities that occur under the Practice's account and all agreements made through or charges incurred for use of the Services accessed with the Practice's end user IDs, usernames or passwords.
3. ADDITIONAL REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PRACTICE.
(a) The Practice represents and warrants to PatientFi as of the Effective Date of this Service Agreement, the date of each Patient Contract, and in each instance in which the Practice accesses the Service that: (i) the Practice and/or each physician, surgeon or medical professional performing healthcare services on behalf of the Practice is duly licensed by and in good standing with all applicable medical licensing and oversight bodies; (ii) the Practice has obtained or will obtain, before undertaking any act for which registration or licensure is required, all required registrations or licenses required to originate Patient Contracts as contemplated hereby; (iii) the Practice has had the benefit of counsel in reviewing this Service Agreement and the obligations of the Practice created hereby and in connection with the origination of Patient Contracts; (iv) information provided by the Practice to PatientFi, which it used and will continue to use for permitting access to the System and Services, is true, correct and complete in all respects; and (v) the Practice read, understands and will comply with the terms and conditions of this Service Agreement.
(b) The Practice agrees that PatientFi is authorized to obtain credit report and background information about the Practice and its principals from third party sources before and after the Effective Date and use it to evaluate and verify the qualifications and experience of the Practice and its principals. The Practice may ask whether PatientFi requested any such credit report or background information and, if it did, will be informed of the name and address of the credit reporting agency or other source furnishing such information to PatientFi. The duly authorized officer of the Practice signing the Agreement authorizes PatientiFi and its designated service providers to obtain and use such credit report and background information for this stated purpose.
4. TERM AND TERMINATION
(a) Term. The Agreement term shall begin as of the Effective Date and continue in full force and effect for a period of twelve (12) months, unless earlier terminated in accordance with Section 4(b). The Agreement shall be renewed for successive terms of 12 months each without further action by the Parties, but may be terminated by either Party giving a 30-day advance written notice of termination to the other Party. Notwithstanding the previous termination rights, any termination notice given while there are Patient Contracts outstanding will only serve to terminate the Practice's right to access the System and place new contracts into the Program. All other provisions shall remain in effect until such time as the Practice no longer has any Patient Contract in the Program.
(b) Termination. The Practice must provide 30 days' written notice of its intent to terminate this Service Agreement. The Practice expressly agrees that, following termination of this Service Agreement, it shall immediately cease use of any "subscriber code number" or other identifying code or credentials established by or with any third party (including, without limitation, any credit reporting agency) in connection with this Service Agreement, the System or any Patient Contract serviced pursuant to this Service Agreement or through or with the System, and agrees to indemnify and reimburse PatientFi for any charge, fee or other cost incurred by PatientFi.
5. PATIENTFI’S INDEMNIFICATION OF PRACTICE
PatientFi agrees to defend and hold harmless the Practice and its affiliates, and each of their officers, directors, employees, successors, assigns (each, a "Practice Indemnified Party"), from and against any claim by a third party (each a "Claim") to the extent such Claim alleges the System, the Program or the Services, when used as contemplated hereby and in accordance with any documentation or instructions provided by PatientFi violates any consumer protection or other similar law, rule or regulation relating to the RICs and the origination or servicing thereof (each a "Covered Claim"). PatientFi agrees to indemnify the Practice Indemnified Party from any losses, costs, and expenses of any kind including, without limitation, reasonable attorneys’ fees, incurred or suffered by the Practice Indemnified Party in connection with a Covered Claim. PatientFi's obligation to indemnify, defend and hold harmless any Practice Indemnified Party is contingent upon and subject to: (a) the Practice's prompt written notification to PatientFi of any Claim thought to be a Covered Claim and, where permissible by regulation, details thereof; (b) the Practice and the Practice Indemnified Party's reasonable assistance (at PatientFi's expense) in the defense or settlement of the Covered Claim; and (c) the Practice Indemnified Party's not making any admission prejudicial to the defense of the Covered Claim. PatientFi shall have no obligation to indemnify a Patient Indemnified Party or pay any amount in compromise or settlement of any Claim negotiated by the Practice or a Practice Indemnified Party without the notification to and input from PatientFi anticipated and required by the preceding sentence. In any event, the Practice, for itself and each Practice Indemnified Party, agrees to take all reasonable steps to mitigate any Covered Claim, or any amounts subject to indemnity hereunder. PatientFi's liability under this Section shall in no event exceed the total amount of fees paid to PatientFi hereunder in the twelve-month period immediately prior to the event or action giving rise to the Covered Claim. PatientFi shall have no liability for damages in the form of fines or penalties imposed on the Practice or any Practice Indemnified Party by a federal or state regulatory agency during the term of this Service Agreement arising from or relating to (i) fraud, willful misconduct or gross neglect on the part of the Practice, any Practice Indemnified Party or any patient of the Practice, and (ii) invalid or incorrect data input into the System by the Practice, any Practice Indemnified Party or any patient of the Practice.
6. LIMITATION OF LIABILITY
(a) Limitation of Liability. SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 6 AND, WITH RESPECT TO PATIENTFI'S INDEMNIFICATION OBLIGATIONS TO THE PRACTICE, SECTION 5, THE TOTAL, AGGREGATE LIABILITY OF A PARTY FOR ANY AND ALL CLAIMS HEREUNDER FOR ANY REASON SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY THE PRACTICE FOR (1) THE PRECEDING 12 MONTHS OR (2) THE THEN-CURRENT TERM (OR RENEWAL TERM, AS THE CASE MAY BE) FOR THAT SPECIFIC SCHEDULE, WHICHEVER IS LESS.
(b) Disclaimer of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF BUSINESS OR OF REVENUES, LOSS OF OPERATION TIME, WASTED MANAGEMENT TIME, LOSS OF GOODWILL OR REPUTATION, IN EACH CASE WHETHER CAUSED DIRECTLY OR INDIRECTLY, OR TO GIVE AN ACCOUNT OF PROFITS TO THE PRACTICE OR ANY THIRD PARTY, OR FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE WHATSOEVER AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY.
(c) Limitations Generally. EXCEPT TO THE EXTENT OF SUCH LIABILITY AS CANNOT BE EXCLUDED BY LAW, THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES.
(d) Time Limit. No action, regardless of form, arising out of this Service Agreement may be brought by either Party more than one (1) year after that Party knew or should have known of the event which gave rise to the cause of action.
7. ADDITIONAL AGREEMENTS
(a) Confidentiality and Information Security Agreement; Business Associate Agreement; Web Agreement. By entering into this Service Agreement, the Practice understands and agrees the Parties are also entering into the Confidentiality and Information Security Agreement attached as Exhibit A to this Service Agreement, the Business Associate Agreement attached as Exhibit B to this Service Agreement, and the Web Software Services Agreement attached as Exhibit C to this Service Agreement, all of which are incorporated by reference and made a part of this Service Agreement. In the event of any conflict between the terms of the Confidentiality and Information Security Agreement and other terms in the Service Agreement, the terms of the Confidentiality and Information Security Agreement shall control. In the event of any conflict between the terms of the Business Associate Agreement and other terms in the Service Agreement, the terms of the Business Associate Agreement shall control. In the event of any conflict between the terms of the Web Software Services Agreement and other terms in the Service Agreement, the terms of the Service Agreement shall control.
(b) Purchase and Sale Agreement. The Parties may enter into a Purchase and Sale Agreement for PatientFi to acquire from the Practice an ownership interest in Patient Contracts. In the event of any conflict between the terms of the Web Software Services Agreement and other terms in the Service Agreement, the terms of the Service Agreement shall control.
(c) Agreement for Repayment of Advances. The Practice appoints and designates PatientFi as a limited purpose agent for and attorney-in-fact of the Practice, solely for the purpose of receiving Loan proceeds from third party lenders due to the Practice and then remitting or applying such amounts as agreed or directed by the Practice. PatientFi may, in its sole discretion from time to time, advance Loan proceeds due to the Practice from third party lenders before final settlement and collection of such Loan proceeds by PatientFi. The Practice agrees that PatientFi, after receiving final settlement and collection of Loan proceeds from third party lenders due to the Practice, may setoff and apply such Loan proceeds first to pay all amounts due and owing to PatientFi for such advances, before remitting the balance of such Loan proceeds to the Practice.
8. MISCELLANEOUS PROVISIONS
(a) Binding Agreement; Assignment. This Service Agreement is assignable in whole or in part by PatientFi. This Service Agreement shall be binding upon and inure to the benefit of PatientFi and the Practice and their respective successors and assigns; provided, however, that this Service Agreement may not be assigned by the Practice without the prior written consent of PatientFi.
(b) Notice. All notices required or permitted to be given hereunder in writing and shall be deemed to have been given when personally delivered or mailed, by certified or registered mail, return receipt requested, addressed to the intended recipient as follows: notices to PatientFi shall be sent to the address noted in the Preamble above and notices to the Practice shall be sent to the address for the Practice specified in the signature block below.
(c) Choice of Law, Venue. This Service Agreement shall be governed and construed under and in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions. All obligations of the Parties, created in this Service Agreement are performable in Orange County, California, and the Parties agree that venue shall be exclusively in the State and Federal courts located in Orange County, California.
(d) Arbitration. The Parties agree all claims, disputes, disagreements, or controversies between them, including those, relating to or arising under this Service Agreement, including, without limitation, contract and tort disputes and claims for breach of fiduciary duties, shall be arbitrated pursuant to the Commercial Arbitration Rules of the American Arbitration Association in effect at the time the claim is filed, upon request of either Party, and that judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction. The Parties further agree that nothing in this Section shall preclude any Party from seeking equitable relief from a court of competent jurisdiction; the statute of limitations, estoppel, waiver, laches, and similar doctrines which would otherwise be applicable in an action brought by a Party shall be applicable in any arbitration proceeding; the commencement of an arbitration proceeding shall be deemed the commencement of an action for these purposes; and the Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this arbitration provision.
(e) Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS SERVICE AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(f) Disclaimer of Warranties. THE PROGRAM AND ALL CONTENT AND MATERIALS, INCLUDING, WITHOUT LIMITATION, THE SYSTEM, ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTIES OR INDEMNITIES OF ANY KIND. PATIENTFI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, APPROPRIATENESS, RELIABILITY OR TIMELINESS OF THE SYSTEM AND ALL CONTENT; OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT UNAUTHORIZED ACCESS TO OR MISAPPROPRIATION OF THE SYSTEM WILL NOT OCCUR; OR THAT THE SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PRACTICE'S USE OF THE SYSTEM IS SOLELY AT THE PRACTICE'S RISK.
(g) Limitation of Liability. EXCEPT AS PROVIDED ELSEWHERE IN THIS SERVICE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM INTERRUPTION OF USE, LOSS OF DATA, THE UNAUTHORIZED ACCESS TO OR THE MISAPPROPRIATION OF ANY CONTENT MADE AVAILABLE ON OR THROUGH THE SYSTEM, OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS SERVICE AGREEMENT OR USE OF THE PROGRAM AND THE SYSTEM. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PATIENTFI OR THE PRACTICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PATIENTFI'S LIABILITY TO PRACTICE OR ANY THIRD PARTY UNDER THIS SERVICE AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT OF FEES PAID TO PATIENTFI HEREUNDER BY PRACTICE DURING THE THIRTY (30) DAYS PRECEDING THE DATE THE CLAIM ARISES OR ONE THOUSAND DOLLARS ($1,000).
(h) Release. The Practice hereby releases PatientFi and its present and former officers, directors, agents, managers, members, investors, partners, employees, shareholders, fiduciaries, parents, affiliates, subsidiaries, divisions, legal representatives, predecessors, estates, trusts, executors, successors and assigns and all persons (natural, corporate or otherwise) in privity with PatientFi or any of them from all claims, demands and damages (actual and consequential) of every kind and nature, disclosed or undisclosed, known and unknown, suspected and unsuspected, in any way arising out of or in connection with the medical or dental services that are financed by a Patient Contract.
(i) Mutual Indemnification. In addition to PatientFi's obligations under Section 6, each Party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney's fees, which arise from any alleged breach of such indemnifying Party’s representations and warranties made under this Service Agreement, provided that the indemnifying Party is promptly notified of any such claims. The indemnifying Party shall have the sole right to defend such claims at its own expense. The other Party shall provide, at the indemnifying Party’s expense, such assistance in investigating and defending such claims as the indemnifying Party may reasonably request. This indemnity shall survive the termination of this Service Agreement.
(j) Parties Bound; Limited Agency; Independence. This Service Agreement shall be binding on and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns. The Practice appoints and designates PatientFi as a limited purpose agent for and attorney-in-fact of the Practice, solely for the purpose of receiving Loan proceeds from third party lenders due to the Practice and then remitting or applying such amounts as agreed or directed by the Practice. For all purposes under this Service Agreement, each Party shall be and act as an independent contractor of the other Party and shall not bind or attempt to bind the other Party in any way. No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by this Service Agreement, except to the extent otherwise expressly set forth in this subsection.
(k) Legal Construction. In any case any one or more of the provisions contained in this Service Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, that the invalidity, illegality, or unenforceability shall not affect any other provision in this Service Agreement and this Service Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in it.
(l) Force Majeure. In the event that either Party shall be prevented from performing its obligations under the Agreement due to governmental or administrative prohibitions, labor difficulties, acts of God, acts of public enemy, riot, accidents, breakdown of equipment, weather conditions, delivery interruptions, or other causes beyond such Party’s control, the Party so prevented shall, upon notice to the other Party, be thereafter released from its obligations so long as such causes shall continue.
(m) Prior Agreements Superseded. This Service Agreement constitutes the sole and only agreement of the Parties and supersedes any prior understandings or written or oral agreements between the Parties respecting the subject matter of this Service Agreement.
(n) Amendment. This Service Agreement may be amended either by: (a) a separate writing dated and executed by both Parties; or (b) a separate 30-day advance written notification that PatientiFi provides to the Practice, through the System or otherwise, solely with respect to amendments made by PatientFi to the Services and/or fees described above in Section 1. Amendments to the Section 1 Services and fees that PatientFi describes in any such 30-day advance written notification shall be deemed accepted without qualification by the Practice upon the issuance, pursuant to the Practice's request, of the first approval of a Patient Contract following the effective date for such amendments set forth in any such notification from PatientFi to the Practice.
(o) Publicity. During the term of this Service Agreement, the Practice grants to PatientFi the right to identify the Practice as a user of the Program.
(p) NACHA Rules. The Practice agrees that it will adhere to all rules of the National Automated Clearing House Association ("NACHA Rules") as they apply to origination of ACH entries (as defined in the NACHA Rules).
IN WITNESS WHEREOF, intending to be bound by the terms hereof, the Parties have caused this Service Agreement to be executed under seal by their duly authorized representatives as of the Effective Date.
Confidentiality and Information Security Agreement
The terms in this Exhibit A (“Confidentiality and Information Security Agreement”) are incorporated in and integrated with the Service Agreement to which this Confidentiality and Information Security Agreement is attached (“Service Agreement”), by and between PatientFi and _____________________ (the “Practice”), with the same Effective Date as the referenced Service Agreement (the "Effective Date"). Capitalized terms used but not otherwise defined by this Confidentiality and Information Security Agreement shall have the same meaning as the Service Agreement.
a. Aggregate Data. Aggregate Data means aggregate information relating to the performance and servicing history of Patient Contracts where such information is anonymized and does not reveal the identity (expressly or implicitly) of any patient(s) of the Practice.
b. Confidential Information. Confidential Information means all documents, materials, data and/or information, in whatever form or format (including, without limitation, electronic media), which relates to the Services, the Program, and each RIC, whether it was furnished before, on, or after the date of the Service Agreement, including (without limitation):
i.the business systems and practices, know-how, documents, reports, plans, proposals, forecasts, personnel files, lists, statistics, information, or data relating to or about applicants, interviewees, or candidates for employment, marketing and sales plans of PatientFi;
ii.any lists, statistics, information, or data relating to the patients of the Practice;
iii.any other information which the Disclosing Party designates, orally or in writing, as confidential or proprietary information or which the Receiving Party has reason to know is confidential or proprietary information; provided, however, that notwithstanding the foregoing, Confidential Information (except to the extent it is Protected Consumer Information) shall not include information that becomes generally available to the public other than as a result of a disclosure by or through the Receiving Party, or its agents, employees, representatives, contractors, subcontractors, successors and assigns, or that becomes available to the Receiving Party on a nonconfidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement with the Disclosing Party or is not otherwise prohibited from transmitting the information by a contractual, legal or fiduciary obligation.
c. De-identified Information. De-identified Information means PHI that meets the standard and implementation specifications for de-identification under the Standards for Privacy of Individually Identifiable Health Information, 45 CFR Part 160 and Part 164, Subparts A and E, as amended from time to time (the “HIPAA Privacy Rule”).
d. Disclosing Party. Disclosing Party means the Party (either PatientFi or the Practice, as the case may be) disclosing Confidential Information to the Receiving Party.
e. Nonpublic Personal Information. Nonpublic Personal Information (“NPI”) shall have the same meaning as defined by the Gramm-Leach-Bliley Act (“GLBA”) and its implementing regulations and include nonpublic and personally identifiable financial information otherwise protected by any applicable state financial privacy laws.
f. Protected Consumer Information. Protected Consumer Information means NPI and PHI, collectively.
g. Protected Health Information. Protected Health Information (“PHI”) shall have the same meaning as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing regulations.
h. Receiving Party. Receiving Party means the Party (either PatientFi or the Practice, as the case may be) receiving Confidential Information from the Disclosing Party.
i. Receiving Party Representative. Receiving Party Representative means any agent, employee, representative, contractor, subcontractor or subservicer of a Receiving Party.
j. Security Incident. A Security Incident means any breach or known attempted breach by an unauthorized third party of a Party’s information systems that are used for housing or transmitting any Protected Consumer Information originating with the Practice.
2. GLBA AND HIPAA COMPLIANCE
a. The Parties agree to maintain administrative, technical and physical safeguards reasonably designed to maintain the security of Protected Consumer Information while in transit through and at rest within information systems of PatientFi and the Practice. Each Party agrees to monitor its information systems, to notify the other Party promptly of any Security Incident relating to the information systems housing or transmitting any Protected Consumer Information originating with the Practice, and to take prompt action designed to mitigate the impact of the Security Incident and prevent additional Security Incidents.
b. The Practice and PatientFi will enter into the form of Business Associate Agreement attached as Exhibit B to the Service Agreement.
c. The Practice shall provide appropriate and adequate training to all Practice employees and representatives in the use of the System and Services, the requirements of this Confidentiality and Information Security Agreement, and the requirements of applicable laws governing the confidentiality, privacy and security of Protected Consumer Information.
d. The Practice warrants and represents that it shall:
i. maintain, use and provide notices of privacy practices to the Practice’s patients informing each patient of the Practice’s intended use and mode for disclosure of Protected Consumer Information;
ii. maintain, use and provide patient consent forms that comply with all applicable laws, including without limitation HIPAA and similar state and federal laws, and that are appropriate for use in connection with the Services;
iii. ensure all patient consent forms have been executed by the Practice’s patients who consent to transmission of their Protected Consumer Information via the System and the Services.
e. The Practice agrees to indemnify, hold harmless and defend PatientFi and its owners, officers, directors, employees, agents, representatives and service providers from any and all loss, damages and expenses, including reasonable attorneys’ fees, arising from any claim, action, proceeding, investigation or otherwise in connection with the Practice’s failure to obtain patient consent for the disclosure of Protected Consumer Information via the System and the Services.
f. The Practice will be subject to audit by PatientFi, or a third party engaged by PatientFi for such purposes, to confirm compliance with this Confidentiality and Information Security Agreement and proper use of the System and Services in accordance with the Confidentiality and Information Security Agreement. Such audits will take place during business hours and upon reasonable notice to the Practice. Such audits will be performed at the expense of PatientFi and in a manner reasonably designed to minimize interference with the Practice’s day to day operations.
3. AUTHORIZATION FOR PROCESSING, COLLECTION AND USE OF DE-IDENTIFIED INFORMATION
a. The Practice authorizes the processing, collection and use of information about the Practice, patient financing with Patient Contracts, and the Program, for purposes of preparing De-Identified Information set forth in study data and study reports PatientFi may agree to provide third parties that are subject to contracts restricting their collection, use and disclosure of such De-identified Information. The Practice understands and agrees that any such study data and reports may include, without limitation, De-identified Information about:
i.Procedures financed through the Program, including the total number of Procedures financed;
ii.the total procedural fees for each Procedure; the Amount Financed for each Procedure and all Procedures in relation to the total procedural fee, expressed as dollar amounts and percentages;
iii.financing variables, such as down payments and staff training, for each Procedure and all Procedures;
iv.aggregated patient demographic information for all Procedures;
v.aggregated information about repayment rates for all Procedures; and
vi.aggregated information about default rates for all Procedures, expressed as a percentage of the total number of all Patient Contracts or an aggregate dollar amount of all Patient Contracts.
4. CONFIDENTIAL INFORMATION
a. Treatment of Confidential Information. Unless otherwise specifically provided in this Confidentiality and Information Security Agreement or authorized in writing by the Disclosing Party, and except as required by court order, the Receiving Party, for itself and for its agents, employees, representatives, contractors, subcontractors, successors and assigns, agrees:
i.to keep all Confidential Information confidential and in its possession except as necessary to perform the Service Agreement;
ii.to restrict access to Confidential Information to those persons who are actively and directly participating in the performance of the Service Agreement and who need to know such Confidential Information to fulfill such responsibilities;
iii.to cause any and all persons or entities who have access to Confidential Information by or through the Receiving Party, including without limitation the Receiving Party’s contractors, subcontractors and subservicers, to observe and comply with the terms of this Confidentiality and Information Security Agreement as if they were parties hereto;
iv.to not copy or duplicate any Confidential Information except as necessary to perform the Service Agreement;
v.to treat any and all copies of, and notes, memoranda, analyses, compilations, abstracts, synopses, studies of other material produced from, the Confidential Information as Confidential Information;
vi.to communicate only with the designated representatives of the Disclosing Party concerning Confidential Information;
vii.to not use and not disclose any Confidential Information for any purpose except the purpose for which such Confidential Information was provided in connection with the performance of the RICs or the evaluation, as applicable, except as permitted by applicable law in the course of performing the Service Agreement or as otherwise required by applicable law;
viii.to not use Confidential Information in any way that is detrimental to the Disclosing Party;
ix.to not disclose to any person the fact that Confidential Information (including without limitation the Service Agreement) has been made available to the Receiving Party or that Receiving Party has reviewed or has in its possession any Confidential Information, except as necessary to perform the Service Agreement; and
x.to not make, publish, or otherwise disseminate in any manner any public statement or description of the Service Agreement or negotiations relating thereto.
b. Required Disclosures. If the Receiving Party or any Receiving Party Representative is required by applicable law to disclose any Confidential Information in violation of the terms of this Confidentiality and Information Security Agreement, the Receiving Party or Receiving Party Representative, as the case may be, shall provide the Disclosing Party with immediate telephonic and written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance by the Receiving Party or Receiving Party Representative with the provisions of this Confidentiality and Information Security Agreement. If such protective order or other remedy is not obtained, or if the Disclosing Party grants a written waiver of the affected provisions of this Confidentiality and Information Security Agreement, the Receiving Party or Receiving Party Representative may disclose that portion (and only that portion) of the Confidential Information that, in the opinion of the Receiving Party’s legal counsel, the Receiving Party is legally compelled to disclose, and the Receiving Party will exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information so furnished.
c. Ownership, Return of Confidential Information. Notwithstanding anything to the contrary provided in this Confidentiality and Information Security Agreement, the Disclosing Party is and shall remain the sole owner of its Confidential Information and all data derived from it that the Receiving Party receives from the Disclosing Party. The Receiving Party recognizes and agrees that nothing contained in the Service Agreement and this Confidentiality and Information Security Agreement shall be construed as granting the Receiving Party any property rights, by license, franchise, or otherwise, in or to any Confidential Information of the Disclosing Party except as may be necessary to perform its obligations under the Service Agreement; provided, however, the Practice acknowledges and agrees that PatientFi may prepare Aggregate Data relating to the performance and servicing history of the Patient Contracts. The Practice hereby expressly grants PatientFi a world-wide, perpetual, royalty-free and irrevocable exclusive license to use such Aggregate Data for use in PatientFi's business operations, including, without limitation, incorporation into financial models, marketing materials and other products and services. Promptly after termination or nonrenewal of the Service Agreement the Practice shall return to PatientFi, and delete and erase from the Practice's systems, all Confidential Information of the PatientFi relating to this Confidentiality and Information Security Agreement and, within 30 days after such termination or non-renewal, where requested by PatientFi, the Practice shall certify in writing to PatientFi that all such Confidential Information has been returned to PatientFi and deleted and erased from the Practice's systems.
d. Injunctive Relief. In the event of a breach by the Receiving Party of any of its obligations in this Confidentiality and Information Security Agreement, the Disclosing Party shall have, in addition to any other rights and remedies available at law or in equity, the right to seek interim, interlocutory and permanent injunctive relief without the necessity of proving either actual damage or that any irreparable harm would or might result from a failure to obtain such injunctive relief, it being acknowledged and agreed by all parties hereto that any such breach will cause irreparable harm to the Disclosing Party and that monetary damages, alone, will not provide an adequate remedy (provided, that no provision of this Confidentiality and Information Security Agreement shall preclude the Disclosing Party from seeking and collecting monetary damages).
Business Associate Agreement
The terms in this Exhibit B (“Business Associate Agreement” or “BAA”) are incorporated and integrated within the Service Agreement to which this BAA is attached and hereby integrated (“Service Agreement”), by and between PatientFi, LLC (“PatientFi” or “Business Associate”) and ______________ (the “Practice” or “Covered Entity”), with the same Effective Date of the Service Agreement to which this Exhibit is attached (the "Effective Date").
Business Associate will, from time to time, provide certain services for Covered Entity that involve the use and disclosure of Protected Health Information that is created or received by Business Associate from or on behalf of Covered Entity. The Parties are committed to complying with the Standards for Privacy of Individually Identifiable Health Information, 45 CFR Part 160 and Part 164, Subparts A and E as amended from time to time (the “Privacy Rule”), and with the Security Standards, 45 CFR Part 160 and Part 164, Subparts A and C as amended from time to time (the “Security Rule”), under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act and its implementing regulations (“HITECH”). This BAA sets forth the terms and conditions pursuant to which Protected Health Information, and, when applicable, Electronic Protected Health Information (“EPHI”), shall be handled.
1. Definitions. Terms used but not otherwise defined by this BAA or the Service Agreement shall have the same meaning as those terms in HIPAA, the Privacy Rule, the Security Rule and HITECH. Examples of specific definitions:
a. Individual. "Individual" shall have the same meaning as the term "individual" in 45 CFR 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
b. Protected Health Information. "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
c. Required By Law. "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR § 164.103.
d. Secretary. "Secretary" shall mean the Secretary of the Department of Health and Human Services or his or her designee.
2. Obligations of Business Associate.
a. Business Associate agrees to not use or disclose Protected Health Information other than as permitted, required by this BAA, or Required by Law.
b. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this BAA.
c. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this BAA.
d. Business Associate agrees to report to Covered Entity: (i) any use or disclosure of the Protected Health Information not provided for by this BAA of which it becomes aware; and (ii) any Breach of unsecured Protected Health Information as specified by 45 CFR 164.410.
e. Business Associate agrees to provide access, at the request of Covered Entity, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual.
f. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the request of Covered Entity or an Individual.
g. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate available to the Covered Entity, or to the Secretary, or to a person designated by the Secretary, for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule or Security Rule.
h. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528.
i. Business Associate agrees to provide to Covered Entity information to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528.
3. Additional Responsibilities of Business Associate with Respect to EPHI. In the event that Business Associate has access to EPHI, in addition to the other requirements set forth in this BAA relating to Protected Health Information, Business Associate shall:
a. implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of EPHI that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity as required by 45 C.F.R. Part 164, Subpart C;
b. ensure that any subcontractor or agent to whom Business Associate provides any EPHI agrees in writing to implement reasonable and appropriate safeguards to protect such EPHI; and
c. report to the privacy officer of Covered Entity, in writing, any Security Incident involving EPHI of which Business Associate becomes aware within ten (10) business days of Business Associate’s discovery of such Security Incident. For purposes of this Section, a Security Incident shall mean (consistent with the definition set forth at 45 C.F.R. § 164.304), the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with systems operations in an information system.
4. Permitted Uses and Disclosures by Business Associate. Except as otherwise limited in this BAA, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.
5. Obligations of Covered Entity.
a. Covered Entity agrees to not use or disclose Protected Health Information other than as permitted, required by this BAA, or Required by Law;
b. Covered Entity shall provide Business Associate a copy of Covered Entity’s notice of privacy practices (“Notice”) currently in use;
c. Covered Entity shall notify Business Associate of any limitation(s) in its Notice in accordance with 45 CFR § 164.520, to the extent that such limitations may affect Business Associate's use or disclosure of Protected Health Information.
d. Covered Entity shall notify Business Associate of any changes to the Notice that Covered Entity provides to individuals pursuant to 45 C.F.R. § 164.520, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information;
e. Covered Entity shall notify Business Associate of any changes in, or withdrawal of, the consent or authorization of an individual regarding the use or disclosure of Protected Health Information provided to Covered Entity pursuant to 45 C.F.R. § 164.506 or § 164.508, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information; and
f. Covered Entity shall notify Business Associate in writing and in a timely manner, of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information.
6. Subsidiaries, Affiliates, Subcontractors.
a. Subsidiaries and Affiliates. Business Associate has entered into this BAA on behalf of itself, and its current and future subsidiaries and affiliates, each of which shall be bound hereunder as is Business Associate. Business Associate shall enter into and keep in force with each subsidiary and affiliate, a contract similar in form and format to this BAA so as to provide Covered Entity with the same agreements, assurances, rights and protections with respect to those subsidiaries and affiliates as Covered Entity has with respect to Business Associate.
b. Subcontractors. Business Associate shall enter into and keep in force with each agent and subcontractor whose functions require access to Protected Health Information, a contract similar in form and format to this BAA so as to provide Covered Entity with the same agreements, assurances, rights and protections with respect to those agents and subcontractors as Covered Entity has with respect to Business Associate.
c. Support for Covered Entity’s Functions. The Privacy Rule permits the Business Associates of Covered Entity to provide Protected Health Information to the Covered Entity’s other Business Associates, agents and subcontractors when and where necessary to support Covered Entity in its “Treatment, Payments and Operations” functions, as those are defined in the Privacy Rule, and to make other uses and disclosures in support of Covered Entity where such use or disclosure would be permitted to Covered Entity by the Privacy Rule. Business Associate agrees to limit the use and disclosure of Protected Health Information among its subsidiaries, affiliates and subcontractors to such permitted uses and disclosures.
7. Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
8. Term and Termination.
a. Term. The Term of this BAA shall be effective as of the acceptance date hereof, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is unpractical to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
i.Either Covered Entity or Business Associate may terminate this BAA and any related agreements if the terminating Party determines in good faith that the terminated Party has breached a material term of this BAA; provided, however, that no Party may terminate this BAA if the breaching Party cures such breach to the reasonable satisfaction of the terminating Party within thirty (30) business days after the breaching Party’s receipt of written notice of such breach.
ii.If neither termination nor cure are feasible, the terminating Party shall report the violation to the Secretary.
iii.Covered Entity may terminate this BAA at any time and for any reason, after giving Business Associate (10) ten days written notice.
b. Effect of Termination.
i.Upon termination of this BAA, Business Associate shall return, destroy, or continually protect and cease any use of all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate.
ii.Upon termination of this BAA, Covered Entity agrees to continually protect all Protected Health Information received by or created by Business Associate and follow all regulations Required By Law.
a. Regulatory References. A reference in this BAA to a section in HIPAA, HITECH, the Privacy Rule or the Security Rule means the section as in effect or as amended.
b. Amendment. This BAA may not be modified or amended, except in a writing duly signed by authorized representatives of the Parties. To the extent that any relevant provision of HIPAA or HITECH is materially amended in a manner that changes the obligations of Business Associates or Covered Entities, the Parties agree to negotiate in good faith appropriate amendment(s) to this BAA to give effect to the revised obligations. Further, no provision of this BAA shall be waived, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
c. Survival. The respective rights and obligations of Business Associate and Covered Entity under "Effect of Termination" and “Survival” above shall survive the termination of this BAA.
d. Interpretation. Any ambiguity in this BAA shall be resolved to permit Covered Entity to comply with the Privacy Rule.
e. LIMITATION OF LIABILITY. NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Web Software Service Agreement
The terms in this Exhibit C (“Web Software Service Agreement” or “Web Agreement”) are incorporated in and integrated with the Service Agreement to which this Web Agreement is attached (“Service Agreement”), by and between PatientFi and _________________________ (the “Practice”), with the same Effective Date as the Service Agreement to which this Exhibit is attached (the "Effective Date"). The Web Agreement is for the exclusive purpose of enabling the Practice to access and use the System and Program for the origination and servicing of Patient Contracts. Capitalized terms used in but not otherwise defined by this Web Agreement shall have the same meaning as the Service Agreement.
1. Practice Representations and Warranties
2. Use of Consumer Reporting Option
(a) The Practice acknowledges the System provides the Practice with summarized information about the credit condition of a patient to assist the Practice in deciding whether it wants to extend credit to that person. This information is an estimation of creditworthiness based upon the compilation and analysis of the patient's current available credit history. Because the Practice has access to this information, the Practice must agree to the following practices to accommodate federal law that applies to how such consumer report information is obtained, used and kept.
(b) The Practice agrees and acknowledges that:
(i) It shall not disseminate, release or resell consumer report information to any outside party;
(ii) It shall not use the information gathered from consumers outside of the course of normal business and determining patient creditworthiness;
(iii) It shall not request a consumer report without the patient's express written permission as provided on the application for credit form;
(iv) It shall cooperate with any investigations performed by PatientFi or its designated consumer reporting agency in regard to the actual or suspected misuse, misappropriation or infringement of consumer report information;
(v) It shall immediately report any detected or suspected inappropriate or unauthorized use of the System and or consumer report information to PatientFi;
(vi) It shall, before accepting an application for credit or initiating a consumer report, inspect one or more forms of identification, one of which should be a government- issued photo ID, from the patient to insure the proper identity of the individual is that of the designated applicant;
(vii) It shall ensure that each employee trusted with permission to access the System is assigned a unique user name and password for the System and that employees do not share or exchange access credentials;
(viii)It shall immediately disable user names and passwords for any terminated, reassigned or suspended employee with System access;
(ix) It shall not issue user names and passwords for access to the System to anyone other than the Practice's own trusted and authorized employees;
(x) It shall instruct employees who use the System on the importance of security and privacy of consumer information;
(xi) It shall ensure that any consumer information retained outside the System, either electronically or in paper copy, is stored in a secure location;
(xii) It shall inform all authorized users of the System that consumer report information can be obtained only about a patient who has applied to the Practice for financing or otherwise given an express written authorization for the Practice to obtain such consumer report information, and instruct all authorized System users not to obtain consumer report information about any other individual under any circumstances;
(xiii)It shall not accept applications for credit by mail or over the telephone;
(xiv)It shall read and become familiar with the terms of the federal Fair Credit Reporting Act ("FCRA"), which is available on the Federal Trade Commission's Website at www.ftc.gov/credit;
(xv) It shall ensure that all credit applications and, if applicable, purchase and credit documents, are kept for a minimum of twenty-five (25) months;
(xvi)It shall not use the information provided under this Web Agreement for an "adverse action" as defined in FCRA unless the reason codes are delivered along with any scores delivered to the patient; and.
(xvii)It shall comply with all federal, state and local laws, including but not limited to FCRA.
3. Legal Disclaimer
The Practice agrees and acknowledges that none of the System-generated documents, training sessions, usage guides, codicils of this Web Agreement or any and all other information provided to the Practice in support of the System should be construed or considered as legal advice. The Practice is encouraged to contact qualified legal counsel in regard to any questions or concerns over the use of the System or other recommended best practices and any liabilities which could arise from the use of the System and/or the effect of any applicable Federal or State Laws, including but not limited to those regarding the maximum finance charges and other charges, fees and costs chargeable by the Practice and the Practice's warranty obligations. PatientFi hereby asserts and the Practice agrees that PatientFi shall bear no liability whatsoever in regard to the Practice's use of any and all information and materials provided with respect to the use of the System.
4. License and Trademarks
Subject to the terms and conditions herein, PatientFi hereby grants, and the Practice hereby accepts, a non-exclusive, non-transferable license (without right to sublicense), to use the System for the sole and limited purpose of extending credit terms or financing to its patients as set forth in the Service Agreement. PatientFi retains the right to materially redesign, modify, update or upgrade the organization, navigation, structure, branding, features, functionality and look and feel of the System at any time without prior notice. The Practice may only use PatientFi's trademarks, trade names, service marks and/or logos (collectively "Trademarks") with PatientFi's prior written approval for each specific use. Nothing in this Web Agreement will grant to the Practice any right, title or interest in the Trademarks of or any goodwill arising from use of the Trademarks. The Practice agrees not to challenge the validity of or attempt to register any of the Trademarks of PatientFi. The Practice agrees not to adopt any derivative or confusingly similar trademarks, brands or marks or create any combination marks with any Trademarks. If given written approval, the Practice will use the Trademarks only in accordance with PatientFi's Trademark usage policies as such may be in effect from time to time and only in accordance with the provision of the terms of this Web Agreement or the Service Agreement. If, at any time, PatientFi believes the use of its Trademarks by the Practice fails to otherwise comply with its Trademark usage guidelines, PatientFi shall so notify the Practice in writing. Upon receipt of such notification, the Practice shall immediately initiate steps to conform to the Trademark usage guidelines and shall affect such conformance or cure as promptly as possible and in any event within 15 days.
PATIENT CONTRACT PURCHASE AND SALE AGREEMENT
1. This PATIENT CONTRACT PURCHASE AND SALE AGREEMENT (“Purchase and Sale Agreement”) by and between PATIENTFI, LLC, a Delaware limited liability company with offices at 15615 Alton Parkway, Suite 450, Irvine, California 92618 ("PatientFi"), and the undersigned healthcare provider (the "Practice"), is entered into and made effective as of [●] (the "Effective Date"). Capitalized terms used in this Purchase and Sale Agreement and not defined with their first use are defined in Exhibit “A” attached to this Purchase and Sale Agreement. The Practice desires to offer payment plans for Procedures to qualifying patients through Patient Contracts. PatientFi desires to purchase from time to time certain Patient Contracts originated by the Practice pursuant to the terms and conditions set forth in the Purchase and Sale Agreement. In consideration of the mutual covenants and promises contained in this Purchase and Sale Agreement, the Practice and PatientFi agree as follows:APPROVALS
In accordance with procedures PatientFi implements from time to time under the Service Agreement by and between the Parties (“Service Agreement”), the Practice may submit information through the System for PatientFi's review with respect to any Application for which the Practice seeks Approval. PatientFi will promptly process and review each Application and communicate any Approval or declination of an Application as provided in the Service Agreement. A Purchase Approval Period of 30 calendar days applies to PatientFi’s initial Purchase Approval decision. For any Subsequent Approval decision made by PatientFi, the Purchase Approval Period equals the days that remain in the existing and unexpired Purchase Approval Period. The Practice must notify Applicant of each Application Approval, Application Approval Period, and Approval Amount, and any declination or other action taken, in accordance with the Service Agreement and applicable law. Each Party agrees not to obtain or use medical information, as defined by the federal Fair Credit Reporting Act (“FCRA”) and its implementing regulations, about any Patient to determine the Patient’s eligibility or continued eligibility for credit, except to the extent and in the manner authorized by the FCRA.
2. CONDITIONS TO PURCHASE OF PATIENT CONTRACTS
Any Patient Contract purchased by and assigned to PatientFi from the Practice is subject to the conditions described in this Section. The Patient must be the same as the person identified as the Applicant identified and subject to the Approval. The Procedure must have been completed and unconditionally accepted by Patient, as reflected on a properly completed and signed Completion Certificate submitted to PatientFi before expiration of the Purchase Approval Period (except PatientFi may waive this condition at any time in its sole discretion). Each representation, warranty, and covenant made by the Practice in this Purchase and Sale Agreement must be true and correct. No Default of this Purchase and Sale Agreement by Practice must have occurred and no Patient complaints, disputes or claims of any nature whatsoever must have occurred, except those that have been fully and finally resolved. Each Patient Contract must be fully and properly completed on a form provided by PatientFi and enforceable against Patient. For each Patient Contract: (a) the Description of Services section must accurately describe the Procedure without disclosing PHI of the Patient; (b) the Itemization of Amount Financed section must accurately reflect an Amount Financed between the Minimum Amount Financed and Maximum Amount Financed (except PatientFi may waive this condition at any time in its sole discretion); and (c) all parties to the Patient Contract must have executed it within the Application Approval Period (or, if the Patient Contract is a Subsequent Contract, within the Purchase Approval Period). If the Patient Contract is a Subsequent Contract, the Practice must not have sold and assigned to PatientFi any previously executed Patient Contract resulting from the same Approval or resulting from an Approval preceding a Subsequent Approval for any Subsequent Contract. If the Practice has authorized use of the System and assignment of user credentials and passwords to a Practice employee or representative, the Practice agrees that: (i) submissions and assignments of a Patient Contract by such Practice employees and representatives are binding and effective as Assignments of the Practice; and (ii) PatientFi may rely on instructions given by any such Practice employees and representatives until the Practice confirms that PatientiFi has received and had a reasonable opportunity to act on the Practice’s instructions to cancel the authority of any such employee or representative to use the System. Where such conditions have been met, PatientFi may in its discretion take a complete and irrevocable Assignment of a Patient Contract, subject only to the terms of Sections 10 and 12 of this Purchase and Sale Agreement, after PatientFi delivers the Purchase Amount to the Practice.
3. THE PRACTICE'S REPRESENTATIONS, WARRANTIES AND COVENANTS FOR EACH PATIENT CONTRACT
To induce PatientFi to purchase a Patient Contract in accordance with this Purchase and Sale Agreement, the Practice makes the following continuing representations, warranties and covenants with respect to each Patient Contract tendered to PatientFi for purchase:
a.The Practice has delivered to PatientFi and it has possession of all fully completed and executed originals of the Patient Contract, the fully completed and signed Application (if applicable), the fully completed and signed Completion Certificate (if applicable), and the fully completed and signed Assignment (the "Contract Documents"). The Practice has in its possession and will hold for PatientFi, or deliver to it promptly upon request during the term of the Patient Contract and for six (6) months after its termination, any permit(s) required to be obtained in connection with the Procedure and all other documents and information relating to the Procedure customarily maintained by the Practice or required of it to comply with applicable law (the "Transaction Documents").
b.If a Patient Contract is a Subsequent Contract, the Practice and Patient each intended, when such Subsequent Contract was executed, for such Subsequent Contract to supersede any and all previously executed Patient Contract financing the purchase of any goods and/or services financed by any such Subsequent Contract
c. No employee or other representative of the Practice has made any statement or representation to Patient that conflicts with any term or provision in the Patient Contract. Each of the Contract Documents and Transaction Documents is genuine and has been properly completed and executed by the Practice and/or Patient to the extent required by applicable law, this Purchase and Sale Agreement and PatientFi. The persons signing the Patient Contract as Patient and, where applicable, as joint obligor, will be the primary beneficiaries of the Procedure corresponding to such Patient Contract. The signatures of the Practice, its employees, Patients and makers or endorsers of the Patient Contract are genuine and authorized and such individuals and/or business entities have the capacity and/or authority to enter into such Patient Contract. All actions taken by an employee or representative who is authorized to use the System by the Practice are actions authorized by the Practice for purposes of this Purchase and Sale Agreement and such actions are authorized by and binding on the Practice.
d.The cash price of the Procedure shown on the Patient Contract is the "cash price" of such Procedure as defined by applicable law and the price charged by the Practice for substantially similar Procedure services in cash transactions. The amount of any cash down payment disclosed in each Patient Contract was in fact received by the Practice in cash from the Patient. The Patient has no claims or defenses, or potential claims or defenses, against the Practice that may be potentially asserted as affirmative defenses or set-offs against any claim asserted by PatientFi in attempting to collect under the Patient Contract.
e.In entering into the Patient Contract assigned pursuant to this Purchase and Sale Agreement, the Practice has fully complied with and not violated any applicable laws, including without limitation those that prohibit unfair, deceptive or abusive acts or practices; those that relate to the confidentiality and security of information about Patients; and those that relate to extensions of credit evidenced by a Patient Contract. The Practice has fully complied with and not violated any federal or state fair lending laws that prohibit discriminatory credit practices on the basis of race, color, religion, national origin, sex, marital status, age (provided the credit applicant has the capacity to contract under state law), the receipt of income from a public assistance program, the exercise of rights under the federal Consumer Protection Act, any type of handicap, and/or familial status. The Practice has not engaged and does not engage in any act or practice that might form the basis of a claim or demand under federal or state law or regulation for any potential actual damages, punitive damages, penalties, fines or other relief that may be assessed for improper credit acts or practices.
4. PROCEDURE FOR SALE OF PATIENT CONTRACTS
When each condition in Section 2 of this Purchase and Sale Agreement has been satisfied for a Patient Contract and each representation, warranty, and covenant in Section 3 of this Purchase and Sale Agreement is true and correct as to such Patient Contract, the Practice shall deliver the Contract Documents to PatientFi in a manner designated by PatientFi (including, without limitation, by use of the System). If, after review of the Contract Documents, PatientFi in its sole discretion finds the Contract Documents are in order and have been completed and presented in accordance with procedures prescribed from time to time by PatientFi, and so long as the Practice is not in default of this Purchase and Sale Agreement or the Service Agreement, PatientFi shall cause the Practice to be paid the Purchase Amount by electronically transferring such funds to an account designated by the Practice. Notwithstanding anything to the contrary stated on any Patient Contract or Assignment (including without limitation any recourse or nonrecourse assignment provisions), the Practice acknowledges all Patient Contracts that PatientFi purchases from the Practice shall be subject to the terms and conditions in this Purchase and Sale Agreement, and that in the event of any conflict between this Purchase and Sale Agreement and any Assignment or Patient Contract, the terms of this Purchase and Sale Agreement shall prevail.
5. DELIVERY OF PAYMENTS FROM PATIENT
If the Practice receives any payment from a Patient on a Patient Contract on or after the date of its assignment to PatientFi, the Practice agrees to hold such payment in trust for PatientFi and immediately remit it to PatientFi in the form in which such payment was received. The Practice irrevocably appoints PatientFi as the Practice's attorney-in-fact with full power of substitution to endorse without recourse the Practice's name on any checks made payable to the Practice as payment under a Patient Contract.
6. GENERAL WARRANTIES AND COVENANTS OF THE PRACTICE
If the Practice is a business organization, the Practice warrants and represents it is validly existing and in good standing in the state of its formation and that it is duly qualified or domesticated and in good standing in each jurisdiction where such is necessary or advisable. The Practice warrants the execution, assignment and delivery of each Patient Contract to PatientFi, and the execution and delivery of this Purchase and Sale Agreement and all other documents delivered or to be delivered to PatientFi or to which the Practice is a party, have been duly authorized and, upon execution and delivery, such documents constitute or will constitute the Practice's obligations, binding upon and enforceable against the Practice in accordance with their respective terms. The Practice's execution and delivery of this Purchase and Sale Agreement shall not result in a breach of any other agreement binding upon the Practice. PatientFi shall be entitled to assume the person who signs any Contract Document or Transaction Document on behalf of the Practice is authorized to do so. The Practice represents, warrants and covenants it will carry on its business in a lawful manner at all times. The Practice also represents, warrants and covenants that it and any physicians or healthcare professionals working in the Practice and performing Procedures have obtained and will maintain at all times any and all licenses, registrations, certifications, surety bonds, security deposits, and insurance required by applicable law in any location where located and where providing or performing Procedures.
7. FINANCIAL INFORMATION OF THE PRACTICE
If PatientFi reasonably determines that a Default of this Purchase and Sale Agreement by the Practice has occurred or is likely to occur, or that a Practice employee or representative has committed or attempted fraud affecting PatientFi or a Patient Contract, or that there has been a material deterioration in the Practice’s financial condition, then the Practice shall promptly provide financial information and documents requested by PatientFi as to the Practice's business, properties, officers, and operations. The Practice warrants that none of the financial information and documents submitted at any time to PatientFi shall contain any untrue statement of fact or omit any material fact necessary to make the statements contained therein and herein not misleading.
8. THE PRACTICE'S RECORDS; INSPECTION BY PATIENTFI
The Practice shall maintain complete and accurate records concerning the sale of each Procedure. If PatientFi reasonably determines a breach of this Purchase and Sale Agreement or the Service Agreement by the Practice has occurred or is likely to occur, or that a Practice employee or representative has committed or attempted fraud affecting PatientFi or a Contract, then the Practice shall promptly: (a) provide copies of records of such Procedure(s) to PatientFi upon its request; and (b) permit PatientFi and its representatives to inspect the Practice's books and records relating to such Procedure(s) and to make extracts from them at all reasonable times.
The Practice shall not advertise or promote through any medium or method financial products or services associated with this Purchase and Sale Agreement, the Service Agreement, Patient Contracts or PatientFi, unless the Practice has obtained PatientFi’s prior express authorization for the timing and content of any such financial advertisements or promotions or the Practice is using content prepared and provided to the Practice by PatientFi. This restriction on the advertisements or promotions of financial products or services, and the terms and conditions of such financial products or services, shall not apply to advertisements and promotions limited to the healthcare products and services provided by the Practice.
10. THE PRACTICE'S PAYMENT OBLIGATIONS
a. If any payment due under a Patient Contract is not made when due and Patient asserts a defense or counterclaim that relates to the date on which the Procedure services were actually performed or provided by the Practice, or the accuracy of the Amount Financed shown in the Patient Contract for the Procedure, then the Practice shall repurchase such Patient Contract without recourse from PatientFi, unless PatientFi determines in its sole discretion any such defense or counterclaim is groundless or asserted in bad faith. The Practice shall complete any such repurchase within 10 calendar days of PatientFi's notification to the Practice for an amount equal the unpaid balance of the Amount Financed.
b. If PatientFi determines that a Patient Contract has been incorrectly and improperly completed or executed, or that a document to be delivered or action to be taken by the Practice under this Purchase and Sale Agreement or any Patient Contract was incorrect or incomplete, and PatientFi requests the Practice to take any lawful remedial action with respect thereto (including in appropriate cases obtaining a replacement or corrected Patient Contract or other document), the Practice shall, within 10 calendar days of PatientFi's notification to the Practice, either comply with such request or repurchase any such Patient Contract without recourse to PatientFi for an amount equal to the unpaid balance of the Amount Financed.
c. Regardless of any contributory action, inaction, negligence or liability by PatientFi and regardless of whether any judgment or other judicial or other determination has been made in connection therewith, the Practice agrees to save, indemnify and hold PatientFi harmless to the full extent of any and all liabilities, settlements, fines, penalties, judgments, awards, fees (including but not limited to attorney's fees), expenses and/or costs which may be incurred or expended by PatientFi in connection with any claim (including any counterclaim or holder in due course allegation), demand, administrative proceeding, arbitral proceeding or lawsuit of any nature whatsoever ("Claim"), which may be directed to or asserted or brought against PatientFi or to which PatientFi may be made a party arising directly or indirectly out of: (i) disclosures made in a Patient Contract about the date on which a Procedure was actually performed or provided and the accuracy of the Amount Financed shown in the Patient Contract for a Procedure; and (ii) any alleged or actual fraud or intentional misrepresentations made or allegedly made by any employee or representative of the Practice. PatientFi shall be entitled to engage separate counsel of PatientFi's choice, to control and determine without the Practice's consent all aspects of the conduct, defense, and/or settlement of the matter, and to be promptly reimbursed by the Practice within 15 calendar days of demand for all amounts incurred or expended by PatientFi in connection therewith.
d. Upon the occurrence of a Claim, PatientFi may, in its sole discretion, require the Practice to repurchase the Patient Contract relating to such Claim. Such repurchase shall be made within 10 calendar days of PatientFi's notification to the Practice for an amount equal to the unpaid balance of the Amount Financed.
e. The Practice shall satisfy any Payment Obligation by delivering to PatientFi a cashier's check or money order in the full amount of such Payment Obligation to an address designated by PatientFi, initiating an ACH credit entry to an account designated by PatientFi pursuant to a separate authorization, or authorizing PatientFi to initiate an ACH debit entry of an account designated by the Practice pursuant to a separate authorization. The Practice agrees that any Payment Obligation, on and after the date it becomes due and payable to PatientFi, may be satisfied by PatientFi deducting any amounts due under this Purchase and Sale Agreement from any amounts payable by PatientFi under the Service Agreement and/or by PatientFi initiating ACH debit entries to any deposit account designated by the Practice pursuant to a separate authorization, until the Practice’s Payment Obligation to PatientFi is fully paid and satisfied. The Practice may revoke and cancel any prior authorization for PatientFi to initiate ACH debit entries to the Practice’s designated deposit account only to the extent and in the manner described in the Practice’s ACH payment authorization to PatientFi.
f. Except as otherwise provided in this Purchase and Sale Agreement and in any applicable Assignment, PatientFi's purchase of any Patient Contract from the Practice shall be without recourse to the Practice.
The Practice shall have defaulted and be in default under this Purchase and Sale Agreement ("Default") if: (a) Practice fails to perform, observe or comply with any covenant or provision in this Purchase and Sale Agreement; (b) any representation or warranty made by the Practice in this Purchase and Sale Agreement or in connection with any Patient Contract is false or incorrect in any material respect; (c) the Practice fails to perform promptly any of its Payment Obligations; (d) the Practice exercises or attempts to exercise any rights as a creditor under a Patient Contract other than as expressly provided herein; (e) the Practice becomes insolvent or admits in writing its inability to pay its debts as they mature; (f) any petition is filed or proceeding commenced by or against the Practice under any bankruptcy or insolvency law; or (g) the Practice is in default under the Service Agreement.
12. PATIENTFI'S REMEDIES ON DEFAULT
If the Practice is in Default under this Purchase and Sale Agreement, PatientFi may, in its sole discretion, take any action stated in the Agreement and any other action allowed by law. No remedy of PatientFi shall be exhausted by the initial exercise thereof, but rather PatientFi may exercise all remedies from time to time and as often as PatientFi in its judgment may deem desirable, including by: requiring the Practice to repurchase from PatientFi, at an amount equal to the unpaid balance of the Amount Financed, any Patient Contract under conditions established by the Agreement; and terminate, at PatientFi's sole option, any or all of the obligations of PatientFi under this Purchase and Sale Agreement, notwithstanding any existing Approval, provided however that, upon the occurrence of an event described in Section 11(e) or 11(f) of this Purchase and Sale Agreement, such termination shall be automatic and without any action on the part of PatientFi. If the Practice is in Default under this Purchase and Sale Agreement, PatientFi may also exercise any or all of its rights and remedies against the Practice's interest in any Patient Contract, under any other agreement between the Practice and PatientFi, or as otherwise available to PatientFi at law or in equity without notice to the Practice except as required by law. Any amounts owed to PatientFi under this Purchase and Sale Agreement that are not paid when due shall bear interest from date due until paid at the maximum rate of interest permitted by applicable law.
13. TRANSFER OF OWNERSHIP OR ASSETS
At least 45 days in advance of the following, the Practice shall request, in writing, prior express written consent from PatientFi with respect to: (a) any change in the ownership of the Practice, including but not limited to any change directly or indirectly occasioned by the sale, exchange, mortgage, pledge, hypothecation, donation (inter vivos or mortis causa), or other transfer of the ownership interest in the Practice whether or not the transfer results in a change of control of the Practice; or (b) any sale, exchange, mortgage, pledge, hypothecation, donation (inter vivos or mortis causa) or other transfer of all or any part of the assets of the Practice in one or subsequent transactions, regardless of whether to a third party or Affiliate of the Practice. Such consent shall be in PatientFi's sole discretion, and may be conditioned, inter alia, on the assumption of the Practice's obligations under this Purchase and Sale Agreement by such transferee of the Practice's ownership interest or assets. In addition to the remedies available for an Event of Default described in this Purchase and Sale Agreement, in the event of an unauthorized transfer of the Practice's ownership interest or assets, PatientFi shall enforce the Practice's obligations through any means legally available to it, which may include but not be limited to successor liability, state licensing board notifications, and least favored nation penalties for Affiliates. In the event of an unauthorized transfer of the Practice's ownership interest or assets, PatientFi shall be entitled to seek and neither the Practice nor any Affiliate transferee shall contest a judgment against the Practice and/or such Affiliate transferee in favor of PatientFi for the full amount of the obligations owed under this Purchase and Sale Agreement plus court costs and attorneys' fees equal to the greater of the actual amount of such fees costs and fees or 25% of such obligations owed, in any case without prior notice or opportunity of the Practice or Affiliate transferee for prior hearing, without stay of execution or right of appeal, and expressly waiving the benefit of all exemption laws, appeals, stay of execution or supplementary proceedings, or other relief from the enforcement or immediate enforcement of a judgment or related proceedings on a judgment, and any irregularity or error in entering any such judgment.
Each Party may voluntarily terminate this Purchase and Sale Agreement for any reason after giving a 30-day advance written notice to the other Party. Such termination under this Section 14 shall not release the Practice from any obligations of payment or performance under this Purchase and Sale Agreement for any Patient Contract not paid in full or repurchased by the Practice prior to termination, including any Payment Obligation owed to PatientFi by the Practice that may arise after termination, nor shall termination of this Purchase and Sale Agreement cancel or limit the exercise by PatientFi of rights and remedies authorized by this Purchase and Sale Agreement and/or by applicable law. The Practice agrees to waive any and all claims for damages against PatientFi and its representatives, including but not limited to loss of anticipated profits, resulting from such termination.
15. PATIENTFI'S LIABILITY TO THE PRACTICE
PatientFi shall have no liability to the Practice for any action taken or omitted to be taken under or in connection with this Purchase and Sale Agreement, other than a direct result of PatientFi's gross negligence or willful misconduct.
This Purchase and Sale Agreement may be amended either by: (a) a separate writing dated and executed by both Parties; or (b) a separate 30-day advance written notification that PatientiFi provides to the Practice, through the System or otherwise, of amendments made by PatientFi to the Rate Schedule or other referenced provisions of the Agreement with respect to Patient Contracts whose Approval will occur on and after the effective date of any such amendment. Amendments described by PatientFi in its 30-day advance written notification shall be deemed accepted without qualification by the Practice upon the issuance, pursuant to the Practice's request, of the first Approval following the effective date for such amendments set forth in any such notification from PatientFi to the Practice.
17. FURTHER ASSURANCE
The Practice agrees to execute and deliver to PatientFi such additional documents and instruments as PatientFi may reasonably request from time to time to effectuate the purposes of this Purchase and Sale Agreement.
Any notice or communication which may be given pursuant to this Purchase and Sale Agreement shall be delivered in accordance with and be effective as provided in the Service Agreement.
19. WAIVER BY PATIENTFI
PatientFi shall not be deemed by any act of omission or commission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by PatientFi and then only to the extent specifically set forth in such writing. A waiver in one event shall not be construed as continuing or as a bar to or waiver of any right or remedy at a subsequent time or in a subsequent event.
20. GOVERNING LAW AND VENUE
This Purchase and Sale Agreement shall be governed by the law, and the Parties shall be subject to the venue provisions, set forth in the Service Agreement.
21. MISCELLANEOUS PROVISIONS
All Miscellaneous Provisions set forth in Section 8 of the Service Agreement (including without limitation those relating to Arbitration, Waiver of Jury Trial, Disclaimer of Warranties, Limitation of Liability, Release, and Mutual Indemnification) are incorporated by reference and made a part of this Purchase and Sale Agreement. Neither this Purchase and Sale Agreement, nor any action taken by the Practice pursuant hereto, shall be deemed to make the Practice an agent of PatientFi or authorize the Practice to act as PatientFi's representative. This Purchase and Sale Agreement, any amendments or written directions given pursuant to the terms hereof, and any Patient Contract and related documents constitute the entire agreement of PatientFi and the Practice with respect to the subject matter hereof, except that this Purchase and Sale Agreement shall not apply to any Patient Contract or Approval that was executed, granted or submitted to PatientFi for Approval prior to the date of this Purchase and Sale Agreement. No amendment, modification or waiver of any term of this Purchase and Sale Agreement shall be binding unless made in accordance with Section 16 and 18 of this Purchase and Sale Agreement. The remedies provided in this Purchase and Sale Agreement are cumulative with, and not exclusive of, any remedies provided in any Patient Contract or other agreement or otherwise provided by law. The headings used in this Purchase and Sale Agreement have been included for convenience only and shall not be considered in interpreting this Purchase and Sale Agreement. This Purchase and Sale Agreement shall be binding upon the Practice and PatientFi and their respective heirs, executors, personal representatives, successors and assigns, provided that the Practice's rights under this Purchase and Sale Agreement shall not be assigned nor the Practice's obligations delegated without PatientFi's prior written consent. PatientFi may assign the whole of any part of PatientFi's rights under this Purchase and Sale Agreement and its rights to any Patient Contract, without notice to the Practice. To the extent the Practice has executed and is subject to any other agreements with PatientFi or any other party affiliated with PatientFi, all other such agreements shall be interpreted consistent with, supplementary to, and in addition to this Purchase and Sale Agreement; provided, however, this Purchase and Sale Agreement shall control over any other such agreements in the event of a conflict between this Purchase and Sale Agreement and such other agreements, to the extent such conflict relates to any subject matter addressed in this Purchase and Sale Agreement. Any signature on this Purchase and Sale Agreement delivered by either Party by electronic means shall be deemed to be an original signature thereto.
IN WITNESS WHEREOF, intending to be bound by the terms hereof, the Parties have caused this Purchase and Sale Agreement to be executed under seal by their duly authorized representatives as of the Effective Date.
"Affiliate" means a person or entity that directly or indirectly controls, is controlled by, or is under common ownership or control with the Practice.
"Agreement" means this Patient Contract Purchase and Sale Agreement, any amendments hereto or modifications hereof under Section 16 of this Patient Contract Purchase and Sale Agreement or which may otherwise from time to time be agreed to in writing by the Practice and PatientFi, and any written directions from PatientFi to the Practice pursuant to the provisions hereof.
"Amount Financed" means the dollar amount of the Procedure that Patient agrees to finance and purchase from the Practice, properly disclosed as such in a given Patient Contract.
"Applicant" means the person or persons seeking to purchase a Procedure from the Practice and finance all or any portion of the purchase price under a Patient Contract.
"Application" means the application for credit submitted by Applicant to the Practice in the form and manner prescribed by or otherwise acceptable to PatientFi.
"Application Approval" means approval by PatientFi, in its sole discretion, of an Application.
"Application Approval Period" means the period of time following PatientFi's notification of a given Approval to the Practice during which Application Approval will remain valid.
"Approval" means the combined Application Approval and Purchase Approval that results from an Application.
"Approval Amount" means the dollar amount corresponding to a given Approval.
"Assignment" means the transfer and assignment by the Practice to PatientFi of a given Patient Contract.
"Completion Certificate" means an acknowledgement signed by Patient that a Procedure has been completed by the Practice to Patient's satisfaction, on a form provided by PatientFi.
"Contract Documents" means those documents and instruments that must be delivered to PatientFi in connection with each Patient Contract under Section 3(a) of this Purchase and Sale Agreement and such other documents as PatientFi may require.
"Maximum Amount Financed" means a dollar amount equal to the Approval Amount most recently communicated to the Practice by PatientFi.
"Minimum Amount Financed" means a dollar amount equal to the minimum financing amount of a RIC that PatientFi establishes from time to time and communicates before or with Approval of any such RIC.
"Party" means the Practice and PatientFi, individually, and the "Parties" mean the Practice and PatientFi, collectively.
"Patient" means the person who purchases individually, or the persons who purchase jointly, a Procedure from the Practice by entering into a Patient Contract in connection with such purchase.
"Patient Contract" or "RIC" means a retail installment contract executed by the Practice and a Patient, including a promise to pay and disclosure statement, on a form generated through the Program, that results from an Approval.
"Payment Obligations" means the obligations of the Practice to make payments to PatientFi or repurchase Patient Contracts pursuant to Section 10 of this Purchase and Sale Agreement.
"PHI" means protected health information, as defined in the Health Insurance Portability and Accountability Act of 1996 (Pub. Law 104-191) and its implementing regulations.
"Procedure" means the dental or medical services performed by the Practice, the purchase of which is financed under a Patient Contract.
"Program" means that certain Program described in the Service Agreement between PatientFi and the Practice.
"Purchase Amount" means the dollar amount at which PatientFi agrees to purchase a Patient Contract from the Practice, equaling the Amount Financed minus the amount of the corresponding Purchase Discount Rate.
"Purchase Approval" means the agreement by PatientFi to purchase a Patient Contract resulting from a given Approval, subject to the terms and conditions of this Purchase and Sale Agreement.
"Purchase Approval Period" means the period of time following PatientFi's notification of a given Approval to the Practice during which Purchase Approval will remain valid.
"Purchase Discount Rate" means a percentage of the Amount Financed used to calculate the Purchase Amount, as disclosed on the Rate Schedule.
"Rate Schedule" means the current schedule of Purchase Amounts, Purchase Discount Rates and other terms set forth in Exhibit “B” to the Agreement and published by PatientFi for purchasing from the Practice a Patient Contract, as may be amended from time to time by PatientFi in its sole discretion pursuant to Section 16 and as made available to the Practice through the System.
"Service Agreement" means that certain Service Agreement between the Practice and PatientFi pursuant to which PatientFi provides certain services to the Practice in relation to the Practice's origination and servicing of RICs.
"Subsequent Application" means any Application submitted by an Applicant during the Purchase Approval Period.
"Subsequent Approval" means any Approval that results from a Subsequent Application.
"Subsequent Contract" means any Patient Contract resulting either from the same Approval from which a previously executed Patient Contract had resulted, or from a corresponding Subsequent Approval.
“System” means the web-based finance system provided by PatientFi and licensed for use by the Practice as described in the Service Agreement and the Web Software Service Agreement.
"Transaction Documents" means those documents, instruments and records which, under Section 3(a) of this Purchase and Sale Agreement, are to be retained by the Practice for each Patient Contract.
"Web Software Service Agreement" means that certain Web Software Service Agreement between the Practice and PatientFi pursuant to which PatientFi provides certain services to the Practice and a license to use the System for purposes of originating and servicing of RICs.
Rate Schedule for Practice as of Effective Date of Purchase and Sale Agreement
This is PatientFi’s schedule of rates and terms as of the Effective Date of the Purchase and Sale Agreement (the “Agreement”) for the purchase of Patient Contracts from the Practice, which may be updated from time to time at PatientFi’s sole discretion and as made available to the Practice through the System pursuant to Section 16 of the Agreement.
The day of each month on which a Patient Contract first becomes eligible for purchase by PatientFi is the day on which the Practice shows PatientFi that a Patient Contract satisfies the Approval conditions in Section 3 of the Agreement and the Practice’s representations, warranties and covenants in Section 4 of the Agreement are accurate (for each Patient Contract, the “Purchase Eligibility Date”). Any Rate Schedule updated by PatientFi will become effective as of the date set forth in its 30-day advance written notification to the Practice through the System. The Practice may contact PatientFi at any time to request changes to the Patient Contract thresholds. Any changes PatientFi agrees to make upon request by the Practice will, if acceptable to PatientFi, be confirmed by PatientFi’s separate written notification to the Practice about a change made to the Rate Schedule. The date of any Rate Schedule changes PatientFi agrees to make upon request by the Practice will become effective as of the date set forth in its written notification to the Practice through the System (either the date referenced in PatientFi’s 30-day advance written notification or any earlier effective date acceptable to PatientFi included in its notification to the Practice). The updated Rate Schedule will apply to Patient Contracts that have a Purchase Eligibility Date on or after the effective date of the updated Rate Schedule.
The Practice is selling to PatientFi a 100% ownership interest and all servicing rights in each Patient Contract for which PatientFi has given an Approval, regardless of the Amount Financed due for any Patient Contract or all of them during the month. The Practice’s sale to PatientFi of the 100% ownership interest and all servicing rights in each Patient Contract is effective when PatientFi pays the Purchase Amount to the Practice for such Patient Contract.
The Purchase Amount is the dollar amount at which PatientFi agrees to purchase a 100% ownership interest and all servicing in a Patient Contract from the Practice, which equals the Amount Financed of the Patient Contract minus the dollar amount due after application of the Purchase Discount Rate. For any Patient Contract with a term of 47 months or less in which PatientFi acquires an ownership interest and servicing rights, the Purchase Discount Rate is equal to three percent (3%) of the Amount Financed for such Patient Contract. For any Patient Contract with a term of 48 months or more in which PatientFi acquires an ownership interest and servicing rights, the Purchase Discount Rate is equal to five percent (5%) of the Amount Financed for such Patient Contract.
**For example, assume the Amount Financed of a Patient Contract with a term of 36 months is $6,000.00. PatientFi will pay a Purchase Amount of $5,820.00 to acquire a 100% ownership interest in and all servicing rights to the Patient Contract ($6,000.00 Amount Financed x 3% Purchase Discount Rate = $180.00 Purchase Discount; $6,000.00 - $180.00 = $5,820.00 Purchase Amount due for such Patient Contract).
**For example, assume the Amount Financed of a Patient Contract with a term of 48 months is $10,000.00. PatientFi will pay a Purchase Amount of $9,500.00 to acquire a 100% ownership interest in and all servicing rights to the Patient Contract ($10,000.00 Amount Financed x 5% Purchase Discount Rate = $500.00 Purchase Discount; $10,000.00 - $500.00 = $9,500.00 Purchase Amount due for such Patient Contract).