This SMB Terms and Conditions (the “T&C”) is hereby incorporated by reference into the Master Services Agreement by and between Care.Stat!, Inc., doing business as CareRev, and Client (the “Agreement”). In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CareRev and Client agree as follows:
1.1 Agreement: The Master Services Agreement which incorporates by reference the T&C, the TOU, and all exhibits executed between CareRev and Client.
1.2 Confidential Information: The inventions, trade secrets, know-how, computer software in both object and source code, algorithms, documentation, Healthcare Professional personal information, technology, ideas, records, usernames, passwords, and all other business, customer, technical, and financial information owned or provided by CareRev or Client, which are designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.
1.3 Effective Date: The Agreement is effective as of the date last signed.
1.4 Facility Rates: The weekly charges for the Healthcare Professionals as more fully described in Section 4.1 and Exhibit 1.
1.5 Healthcare Professional(s): The healthcare workers registered with the CareRev Platform available to work at Client’s facility.
1.6 Hiring Fee shall have the meaning set forth in Exhibit 1.
1.7 Legal Compliance shall have the meaning set forth in Section 7.2.
1.8 Party(ies): CareRev and/or Client.
1.9 Platform: The CareRev technology that enables, credentialing, onboarding, and scheduling for the Client while posting available shifts to qualified potential staff externally.
1.10 PHI: Protected Health Information as defined in the 45 C.F.R. §160.103.
1.11 Services include the CareRev Platform as well as any implementation, support, or project management.
1.12 Term shall have the meaning set forth in Section 5.1.
2.1 CareRev Platform. CareRev shall provide the Platform for Client’s usage in a secure system environment, accessed by Client remotely. CareRev shall comply with all applicable laws and regulations applicable to CareRev in providing the Platform to Client. CareRev may, in its sole discretion, modify, replace, or add to the Platform (including without limitation improving or adding new or changed features or functionality (or both)) from time to time without notice, but shall not materially reduce the features and functionality available through the Platform during the Term.
2.2 Professional Standards. Certified as a staffing provider by The Joint Commission, CareRev will perform the Services according to generally accepted professional standards, as established by The Joint Commission.
2.3 Licenses, Certifications and Professional Documentation. CareRev uses commercially reasonable effortsto verify that Healthcare Professionals meet the qualifications recommended by The Joint Commission standards and shall adhere to the credentialingstandards as outlined in Exhibit 2. CareRev provides online access and, where appropriate, verification of licenses, certifications and other professional documentation of each Healthcare Professional who works with Client.
2.4 Medicare and Medicaid. If Client receives funds from Medicare and/or Medicaid, CareRev agrees that in accordance with Section 952 of the Omnibus Reconciliation Act of 1980, CareRev contracts, books, records, and documents will be made available to the Controller General of the United States, the Secretary of the United States Department of Health and Human Services and their duly authorized representatives until the expiration of four (4) years after the services provided under this Agreement.
2.5 Exclusion Checks. CareRev will use its best efforts to ensure that neither CareRev nor any Healthcare Professionals: (i) are “sanctioned persons” under any federal or state program or law; (ii) have not been listed in the current List Excluded Individuals/Entities maintained by the Office of Inspector General; (iii) have not been listed on the Excluded Parties List System maintained by the General Services; (iv) have not been listed in the Specially Designated Nationals or Blocked Person list maintained by the Office of Foreign Assets Control; and (v) in accordance with “Fair Chance” laws, have not been convicted of a criminal offense related to healthcare, within the past seven (7) years. CareRev shall advise Client if it or any Healthcare Professional no longer complies with this section.
3.1 Onboarding and Implementation. Client agrees to make best efforts to streamline, digitize, and generally make effective its onboarding, orientation, and precepting processes for optimal workforce solutions. As part of the implementation process Client will notify CareRev of appropriate staffing and accounts payable processes for coordinating ongoing processing and payment of invoices. Client will clearly communicate any regulatory requirements in a timely manner, including any additional or changes in requirements of which Client becomes aware, in writing, and help create a mutually agreed upon timeline for implementation.
3.2 Accountability. At all times during the Term, Client is responsible for its own medical, clinical, compliance, financial, legal, accounting, and operational decisions. Client agrees that no recommendation from CareRev shall replace the judgement or responsibility of its management, clinicians, or other decision–making personnel. Client remains responsible for its actions regarding the Agreement and its use of the Services. Client has and shall maintain all licenses, permits, registrations, or other certifications
necessary to perform its obligations under this Agreement and shall take all action necessary to execute this Agreement and perform its duties and obligations thereunder.
3.3 Grant of Use. During the Term of the Agreement and subject to the terms described herein, CareRev grants to Client a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited right to access and use the Platform in accordance with the TOU. Client agrees and acknowledges that the grant of rights is a right of use of the Platform only, and that right, title, and interest in and to the Platform (including without limitation any enhancements, developments, and improvements or changes thereto
whether suggested or requested by Client or otherwise) and any rights not granted herein shall remain with, and are expressly reserved to, CareRev or its licensors. No improvements, enhancements or developments to the Platform shall be considered “works made for hire,” even if paid for by Client. The Platform is provided as an online service only, and Client shall have no right whatsoever to receive, review, or otherwise use or have access to the source or object code for the Platform. This grant of rights by CareRev
is made solely to Client for specific use as specified in this Agreement.
3.4 Platform Conditions of Use. Client shall not (nor shall Client allow any third party to): (1) resell, assign, or otherwise transfer any of its rights under the Agreement, except for such limited rights of assignment of the Agreement by Client as expressly permitted in this Agreement; (2) copy, translate, port, modify, make derivative works of, incorporate into or with other software, disassemble, decompile, or otherwise reverse engineer, or otherwise attempt to learn, derive or discover the source code, source files, structure,
underlying user interface techniques, underlying ideas or underlying algorithms of, the Platform by any means; (3) use a single account for multiple business entities unless specifically authorized by CareRev in writing; (4) provide third parties with access to its Platform account; (5) attempt to circumvent any license, timing or use restrictions that are built into the Platform; and/or (6) use the Platform in violation of the TOU. Client shall immediately notify CareRev of any violation of the foregoing of which Client becomes aware. Client agrees to use its best efforts to always provide true, accurate, current, and complete information to CareRev and to maintain and update this information to keep it true, accurate, current, and complete. If any information provided by Client is untrue, inaccurate, not current, or incomplete, or if Client violates this section, the TOU or any applicable laws, it shall be considered a breach of this Agreement.
3.5 Client’s Account. Client agrees and acknowledges that it is solely responsible for all activities that occur under Client’s account(s). Without limiting the foregoing, it is Client’s sole responsibility to keep its password(s) and/or account information strictly confidential. Client shall be solely responsible for any authorized or unauthorized access to its account by any person. If any unauthorized use of Client’s account(s) or password(s) occurs, Client must immediately notify CareRev of such unauthorized use.
3.6 Compliance. Client shall comply and shall cause all its employees and agents to comply with: (i) the laws and regulations applicable to healthcare facilities, and (ii) this Agreement and any shifts created hereunder, as may be adopted, or amended from time to time.
3.7 Safety Hazards. If there are any occupational safety hazards or events involving a Healthcare Professional or any potential claims relating to the services provided by a Healthcare Professional, Client shall provide CareRev with written notice of such hazard, event or claim as soon as possible and in no event more than ten (10) days after Client knew or reasonably should have known of such hazard, event, or claim.
4.1 Facility Rates. For the Healthcare Professionals, CareRev shall invoice Client weekly for the: (1) cost of hours worked; (2) any cancellation compensation; and (3) any other incurred fees. Client agrees to pay invoices within thirty (30) days of Client’s receipt of invoice via electronic check, ACH, credit card, and/or wire transfer.
4.2 Late Fees. The balance of any undisputed fees over sixty (60) days past due will be subject to a late fee of up to one-and-one-half percent (1.5%) of the total outstanding balance of each past due invoice accrued at the last day of each month an invoice remains unpaid. Client shall be liable for all collection expenses incurred by CareRev, including reasonable attorneys’ fees.
4.3 Disputed Charges. If Client does not object in writing to an invoiced amount within thirty (30) days, Client shall be deemed to have acknowledged the correctness of the invoice and to have waived its right to dispute the amount. Client’s dispute as to a portion of any invoice or amount owed shall not give Client the right to withhold or delay payment of the whole invoice or amount owed.
4.4 Taxes. Client will pay all state or local sales or use taxes imposed on charges. If applicable, Client will pay sales or use taxes directly to the applicable taxing authority. CareRev will be responsible for taxes based CareRev’s net income or gross receipts. Client and CareRev will reasonably cooperate in all matters relating to taxes.
4.5 Suspension or Restriction of Services. CareRev shall have the right to suspend or restrict Services if Client has a balance of any undisputed fees over sixty (60) days past due.
5.1 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year. Thereafter, this Agreement shall renew for identical terms unless written notice of non-renewal is given.
5.2 Termination for Cause. Either Party may terminate the Agreement upon written notice to the other Party in the event of the other Party’s breach of a representation or warranty made hereunder or failure to substantially perform its obligations under the Agreement, provided that written notice of such breach or failure is provided by the non-breaching Party, and such breach or failure to perform is not cured to the non-breaching Party’s reasonable satisfaction within thirty (30) days of the breaching Party’s receipt of that notice. Further, a Party may immediately terminate the Agreement, without opportunity to cure, upon written notice to the other Party in the event: (a) the non-terminating Party substantially ceases to do business in the manner in which it was conducted at the time the Agreement was executed (for the avoidance of doubt, a sale of a Party’s business, transfer of stock or assets, or other like transaction between that Party and a third party shall not trigger the other Party’s right to terminate under this clause); or (b) either Party initiates or has initiated against it, voluntarily or involuntarily, any act, process or proceeding under the provisions of any bankruptcy statute or law, or under any other insolvency law or other statute or law providing for the modification or adjustment of the rights of creditors, which is not dismissed within thirty (30) days from the date of filing.
5.3 Termination Without Cause. Either Party may terminate this Agreement without cause at any time upon one hundred twenty (120) days’ prior written notice to the other Party.
5.4 Events Upon Termination. Upon termination of the Agreement, each Party shall cease performance and promptly return or destroy any of the other Party’s Confidential Information or other materials in its possession or control (including all copies). Termination shall not affect each Party’s payment obligations to the other Party in connection with activities prior to termination of the Agreement.
5.5 Survival. Sections 6, 7, 8 and 9 and any other provisions of the Agreement which, by their terms, require
performance after the termination of the Agreement, or have application to events that may occur after such
termination, shall survive the termination of the Agreement.
6.1 In General. All Confidential Information provided by a Party shall be maintained in confidence by the other Party, and neither Party shall, directly or indirectly, either: (a) divulge to any person or organization (other than its employees, contractors, agents, and professional advisers who have a need to know such information and who are bound by a written nondisclosure agreement containing confidentiality obligations no less restrictive than those set forth herein), or (b) use in any manner whatsoever other than as necessary for the performance of its obligations under the Agreement, any of the Confidential Information of the other Party without the other Party’s express prior written consent to do so. The terms of the Agreement (including pricing), and any information concerning the Services, shall be considered Confidential Information. The obligations of confidentiality set forth in this Section 6.1 shall survive for a period of three (3) years following the termination or expiration of the Agreement. Each Party shall be liable for any misuse, misappropriation or improper disclose of Confidential Information by any of its employees, contractors, agents, or professional advisers.
6.2 Exclusions. The provisions of this Section 6 shall not have application to any information disclosed by a Party to the extent the receiving Party can reasonably demonstrate such information: (i) is or becomes lawfully available to the public through no act or omission of the receiving Party or its agents, employees, contractors or representatives; (ii) is received without restriction from another person or organization lawfully in possession of such information and entitled to provide such information to the receiving Party; (iii) was rightfully in the possession of the receiving Party on a non-confidential basis prior to its disclosure by the disclosing Party; (iv) is approved for release by the disclosing Party in writing; or (v) is independently developed by the receiving Party or its employees without access to or use of the disclosing Party’s Confidential Information, as evidenced by written records demonstrating such independent development.
6.3 Unauthorized Access. If either Party becomes aware, or suspects, that any unauthorized person has obtained or attempted to obtain access to Confidential Information of the other Party, that Party is immediately to notify the other Party and take the steps reasonably available to it to protect that Confidential Information.
6.4 Compelled Disclosure. Each Party shall have the right to disclose Confidential Information in response to judicial, governmental, or administrative process, reporting requirement, request/order, or other requirement, provided such disclosure is in accordance with applicable law. Further, in the event a third party seeks to compel disclosure of Confidential Information from a receiving Party by judicial, governmental or administrative process, requirement or order, the receiving Party shall promptly notify the disclosing Party of such occurrence and furnish to the disclosing Party a copy of the demand, summons, subpoena or other process served upon the receiving Party to compel such disclosure, and shall permit the disclosing Party to assume, at its expense, but with the receiving Party’s cooperation, defense of such disclosure demand. If the disclosing Party fails or refuses to contest such a third-party disclosure demand, or a final judicial order is issued compelling disclosure of Confidential Information by the receiving Party, the receiving Party shall be entitled to disclose such information in compliance with the terms of such administrative or judicial process or order, but such information shall otherwise remain Confidential Information subject to the confidentiality obligations set forth herein.
7.1 Warranties. Each Party represents and warrants that: (i) it has full right, power and authority to enter into and fully perform its obligations under the Agreement, including without limitation the right to bind any party it purports to bind to the Agreement; (ii) its execution, delivery and performance of the Agreement does not conflict with any other agreement to which it is a Party or by which it is bound; and (iii) it shall comply with all laws, rules and regulations applicable to its activities in connection with the Agreement and its business.
7.2 Compliance with Laws. Each Party is and will be responsible for its own compliance with applicable laws and will use its best efforts to ensure compliance with applicable laws (“Legal Compliance”). Both Parties agree that the intent of this agreement shall be construed as legally compliant with Stark, Anti-Kickback, and other healthcare laws. Notwithstanding the foregoing, a Party may be assigned specific responsibility for an aspect of Legal Compliance in an amendment to the Agreement. In addition, as requested by a Party, the other Party will use commercially reasonable efforts to assist the Party with its Legal Compliance.
7.3 Protected Health Information. Client also acknowledges that the performance of CareRev's obligations under this Agreement does not involve the use or disclosure of PHI. CareRev shall not receive PHI from Client, nor create, receive, maintain or transmit PHI on Client's behalf. Consequently, Client hereby agrees that CareRev is not a "business associate" of Client, as defined in 45 C.F.R. §160.103, for purposes of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Public Law 104-191 and the regulations promulgated thereunder.
8.1 Indemnification. Each Party and their respective successors and assigns shall indemnify, defend, and hold harmless the other Party and their successors and assigns from and against all claims to the extent such claims arise, result from, or relate to: (a) a material breach of any term or condition of this Agreement; (b) failure to comply with applicable law; or (c) gross negligence, fraud, willful misconduct or intentional violation of criminal law. The obligations under this section are in addition to any other rights or remedies available under the Agreement or law.
8.2 Indemnification Procedure. A Party seeking indemnification shall promptly notify the indemnifying Party in writing of any claim and give the indemnifying Party all information, cooperation, assistance, and authority reasonably necessary for the indemnifying Party to evaluate and defend such claim if the tender of defense and indemnity is accepted without a reservation of rights. In the event the indemnifying Party accepts the tender of defense with a reservation of rights, rejects the tender of defense or fails to respond to a tender of defense, the indemnified party shall thereafter have the right to control of the defense of such claim, including the right to select which firm defends the claim, until such time as the indemnifying Party accepts its obligation to defend without a reservation of rights. An indemnifying Party shall obtain the indemnified Party’s express prior written approval (such approval not to be unreasonably withheld or delayed) to settle any claim if such settlement: (i) arises from or is part of any criminal action, suit or proceeding, or (ii) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of the indemnified Party, or (iii) requires any specific performance or other equitable remedy by the indemnified Party, or (iv) requires the payments of any amounts by the indemnified Party.
8.3 Limitation of Liability. NEITHER PARTY WILL HAVE ANY LIABILITY TO EACH OTHER OR TO ANY OTHER PERSON OR ORGANIZATION FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST DATA, OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE TOTAL LIABILITY OF A PARTY UNDER THE AGREEMENT FOR ANY CAUSE SHALL NOT EXCEED THE ANNUAL CONTRACT VALUE. NOTHING IN THIS SECTION SHALL HAVE THE EFFECT OF LIMITING OR EXCLUDING ANY LIABILITY FOR THAT WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
8.4 Insurance. CareRev maintains general liability insurance, technical errors and omissions coverage, automobile coverage, and cyber liability. CareRev also maintains liability coverage to cover the services rendered by Healthcare Professionals in the amounts of one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate. Client agrees to maintain professional liability in at least the same amounts. To the extent liability under any judgement or settlement regarding the performance of services by a Healthcare Professional exceeds the limits of such coverage, Client shall hold CareRev and the Healthcare Professional harmless from the same. CareRev maintains coverage for expenses associated with occupational accidents and injuries to each Healthcare Professional.
8.5 Risk Allocation. The Parties agree that terms within this Section 8 reflect an agreed-upon allocation of risk between the Parties and are an essential basis of the Agreement without which the terms of the Agreement would be substantially different.
9.1 Dispute Resolution. The Parties agree that all disputes arising out of the terms of the Agreement shall be subject to binding arbitration to take place in the State of Delaware. The Parties agree the prevailing Party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. The prevailing Party shall be entitled to recover attorneys’ fees and other fees incurred in connection with the arbitration.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to its choice of law principles.
9.3 Notices. Any legal notice required or permitted under the Agreement shall be sufficiently given by Client to CareRev if delivered by express courier or by certified mail, return receipt requested, to the attention of the Legal Department at the address set forth in the Agreement and sent to the following email address: Legal@CareRev.com. Any legal notice required or permitted under the Agreement shall be sufficiently given by CareRev to Client by use of the address specified in the Agreement which may include postal mail or express courier.
9.4 Irreparable Harm. Each Party acknowledges that its breach of the Agreement would cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, a Party shall be entitled to seek injunctive relief and other equitable remedies in the event of a breach this Agreement, without the necessity of posting a bond in connection therewith. The availability of injunctive relief shall be a cumulative, and not an exclusive, remedy available to the Parties.
9.5 Non-Waiver/Severance. No waiver of any provision of this Agreement shall: (a) be effective unless made in writing, or (b) be construed to be a continuing waiver of such provision. Nor shall any failure to enforce any term of this Agreement constitute a waiver of future enforcement of that or any other term. In the event any portion of this Agreement is held to be invalid or unenforceable, such portion shall be construed as nearly as possible to reflect the original intent of the Parties, or if such construction cannot be made such provision or portion thereof shall be severable from the Agreement and shall not affect in any respect whatsoever the remainder of the Agreement.
9.6 Assignment. Neither Party will assign the Agreement, or its rights or obligations hereunder, without prior express written consent of the other Party. Notwithstanding the foregoing, either Party may assign the Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. All the terms and conditions of the Agreement will be binding upon, will inure the benefits of, and will be enforceable by, each of the Parties and their respective successors and permitted assigns.
9.7 Marketing. Neither Party may issue any press release regarding the subject matter of the Agreement without the consent of the other Party, which consent shall not be unreasonably withheld. Client gives its approval and consent for CareRev to include Client’s name and/or logo in their client lists and refer to Client on its website, in marketing materials and business conversations as a client.
9.8 No Third-Party Beneficiaries. The Agreement is made solely for the benefit of the Parties to the Agreement and their respective permitted successors and assigns. The terms, representations, warranties, and covenants of the Parties set forth in the Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any other person or entity.
9.9 Relationship of the Parties. Each Party is an independent contractor of, and is not an employee, agent, or authorized representative of, the other Party. The Agreement shall not in any respect whatsoever be deemed to create any sort of exclusivity, partnership, joint venture, or other business combination between CareRev and Client. Except as may be expressly provided in the Agreement, neither Party shall have the right, power, or authority to act or create any obligation, express or implied, on behalf of each other. Further, CareRev acknowledges that the Healthcare Professionals shall not be treated as employees of Client and shall not be entitled to participate in any of Client employee benefits, including without limitation any health or retirement plans. Additionally, Client shall not be liable for worker’s compensation, unemployment insurance, employers’ liability, employer’s FICA, social security, withholding tax, or other taxes or withholding for or on behalf of CareRev relating to the Healthcare Professionals.
9.10 Intellectual Property. Except for rights expressly granted under this Agreement, nothing in this Agreement will function to transfer either Party's intellectual property rights to the other Party.
9.11 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, inoperability of the internet, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
9.12 Entire Agreement. The Agreement includes this Master Services Agreement, the T&C, the TOU, any exhibits, appendices and other documents referred to herein. The Agreement contains the entire agreement of the Parties relating to the subject matter hereof, and supersedes any prior or contemporaneous agreement, discussion or undertaking, whether written or oral, related hereto. There are no conditions, understandings, agreements, representations, warranties (express or implied) or covenants which are not specified in this Agreement, and each Party acknowledges and agrees that, in entering into this Agreement, it has not relied on any representations, warranties covenants or assertions not specifically set for this Agreement. The T&C and TOU may be modified by CareRev from time to time, in its sole discretion, in the event of: (a) a change required by addition or modification to applicable law, rule or regulation, or (b) adherence to changes in industry standards or to corporate best practices. Except as otherwise set forth above, no other amendments, additions or modifications to the Agreement shall be valid or binding unless expressly agreed to in writing and physically signed by the Parties. No provisions in either Party’s purchase orders or other business forms shall modify, supersede, or otherwise alter the terms of this Agreement.
9.13 Other. The Parties hereby agree to the use of electronic signatures on this Agreement and other documents. The Parties acknowledge and agree that the Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party based on draftsmanship of the Agreement or otherwise. Headings are for reference purposes only and shall not affect the meaning or interpretation of the Agreement. Any reference to a section shall refer to all subsections of that section unless otherwise stated.