Provider Master Service Agreement
EFFECTIVE DATE: SEPTEMBER 3, 2020
This Provider Master Service Agreement (“Agreement”) is entered into between Vim, Inc. and Provider (each, a “Party” and, together, the “Parties”). In the event of any conflict or inconsistency between this Agreement and any statement of work entered into hereunder and governed by the terms hereof (each, an “SOW” or “Order”): (i) with respect to the use of or access to the Hosted Services, this Agreement shall govern; and (ii) with respect to the specific engagement (including the Professional Services and Deliverables to be delivered thereunder) set forth it the applicable SOW only and not any other matter covered by this Agreement, the applicable SOW shall govern. An SOW may also be used to amend the terms of this Agreement when specifically so documented thereon. No verbal agreement or representation between persons involved in any project described in an SOW will be binding on either Vim or Provider. In consideration of the mutual covenants contained herein, the Parties agree as follows:
For the purpose of this Agreement, the following terms shall have the meanings set forth in this Section:
“Provider EHR” means Provider’s EHR vendor(s) as of the Effective Date of the SOW
“High Value Preferred Provider” means Provider deemed to offer high-value care as defined by Vim Contracted Payer data
“NPI” means National Provider Identifier
“Provider” means medical doctors, doctors of osteopathy, advanced registered nurse practitioners and physician assistants
“Vim Contracted Payer” means a payer with whom Vim has a signed contract within Provider’s city and state
“Vim Contracted Payer Directories” means Provider directories operated by Vim Contracted Payers in the market in which Vim will incorporate a booking API, allowing patients to directly schedule appointments in accordance with availability defined by Provider EHR schedule
“Value-Based Contract” means a contract with a payer that contains an alternative payment methodology in which some portion of Provider’s total potential payment is tied to performance based on one or more measures of cost-efficiency and/or quality
2. Hosted Services
3.1 Professional Services. Vim shall provide Provider with the professional services (“Professional 2 Services”) set out in an SOW. All material changes to any SOW shall be effective only if set forth in a fully executed Change Order.
3.2 Deliverables. Vim shall provide to Provider the Deliverables described in the applicable SOW. No schematics or source code shall be furnished, unless specified in the SOW.
3.4 License. As between the Parties, Vim shall retain all rights, title, and interests to any copyright, patent, trademark, trade secret, or other proprietary or intangible rights, that arise from Vim’s performance of the Professional Services, including any such rights embodied in the Deliverables, except for the following license to Provider: upon full payment by Provider to Vim of all applicable fees, Vim grants to Provider a limited, non-exclusive, non-transferable license to use the Deliverables for its internal business purposes, which license shall be perpetual and royalty-free unless otherwise stated in the applicable SOW, provided that Provider may not reproduce or use any portion of the Deliverables the right, title and interest in which is owned by Vim other than as components of the Deliverables.
4.1 Provider shall on an ongoing basis provide Vim access to and use of access to relevant functional, technical and business Provider resources and personnel with adequate skills and knowledge as reasonably required by Vim for purposes of performing its obligations hereunder, including, but not limiting to the Provider EHR system and services.
4.2 Provider shall reasonably adhere to Vim’s guidance with respect to configuration, testing, and other recommended resources as necessary for Vim to perform its obligations hereunder.
4.3 If Professional Services will be performed onsite at Provider’s premises, Provider shall provide access to Provider’s premises in a clean, lighted and safe condition with adequate power sources, networks, telephone, and data lines, and other utilities. Furthermore, Provider is responsible for obtaining any required permits, approvals, authorizations, or the like to permit Vim to perform Professional Services at its site(s).
4.4 If the Professional Services in an SOW include: (1) the making of telephone calls by Vim to patients or consumers on behalf of Provider; or (2) sending by Vim of text messages to individuals on behalf of Provider, Provider hereby represents and warrants that: (i) it has the required consents from all such individuals under applicable laws and regulations including but not limited to the Telephone Consumer Protection Act (“TCPA”) and Telemarketing Sales Rule having regard to factors including but not limited to the method of communication (e.g. artificial voice, autodialers and/or prerecorded messages), the content and purpose of the telephone call or text message, and the type of telephone numbers (e.g. residential landlines or cell phones) to which the calls are made or the text messages are sent; (ii) it shall not provide residential landline or cell phone numbers to Vim for which it does not have the required consent as necessary under applicable laws and regulations; and (iii) it shall promptly and timely but in any event within any period prescribed by applicable laws and regulations provide notice to Vim of any opt-out notice received from individuals who do not want to receive such calls or text messages. Provider hereby authorizes Vim to make such telephone calls and/or send such text messages on its behalf.
4.5 If an applicable SOW includes payment by Vim to Provider of any remuneration for referral of business, Provider hereby acknowledges and agrees that such arrangement shall not cover business for which payment may be made in whole or in part by a Federal health care program on a fee-for-service or cost basis or a Medicaid managed care plan. Provider hereby represents and warrants that it shall not claim or receive remuneration from Vim under this Agreement or any applicable SOW in return for or induce the provision or acceptance of business, for which payment may be made in whole or in part by a Federal health care program on a fee-for-service or cost basis or a Medicaid managed care plan.
4.6 Provider hereby grants to Vim a license to use and access the relevant technology, documentation, information, materials and data made available to Vim by Provider solely to the extent necessary to perform the Professional Services. Provider hereby represents and warrants that it has all consents required under applicable laws and regulations for Vim to use such technology, documentation, information, materials and data to perform the Professional Services.
4.7 Provider acknowledges and agrees that the designation of a Provider as a High Value Preferred Provider is made exclusively by each Vim Contracted Payer in accordance with its own 3 criteria, and that Vim is not liable for any decision regarding the designation of a certain Provider as a High Value Preferred Provider or not. Provider may attempt to seek additional information directly from a Vim Contracted Payer about such criteria. Vim includes in the Hosted Services all High Value Preferred Provider criteria selected by each Vim Contracted Payer. It is the Provider’s decision, in its sole discretion, whether or not to select a High Value Preferred Provider, and if so, which, to refer its patients to on a case-by-case basis.
4.8 Provider acknowledges and agrees that to the extent that the Deliverables include care gaps reports, such reports are made exclusively by the relevant insurance company, and that Vim has no liability for the content or accuracy of such care gaps reports.
4.9 Provider hereby represents and warrants that it shall not provide false or misleading information to its patients about their Provider referral options or otherwise interfere with any patient’s freedom to select the Provider of his or her choice. Without limiting the generality of the foregoing, Provider shall not advise or imply to patients that they may receive coverage from their health plan only for medical services delivered by High Value Preferred Providers. Provider shall comply with all referral management policies and procedures established by the health plans in which they participate.
5.1 Provider Data. Provider shall retain all right, title and interest in and to all information/data transmitted by Provider to Vim in connection with the Hosted Services or Professional Services (collectively, “Provider Data”); provided, however, that Provider hereby grants to Vim a worldwide, royalty-free, fully paid-up, non-exclusive license to use the Provider Data for the purpose of fulfilling Vim’s obligations hereunder. Provider Data does not include non-identifiable aggregate data compiled by Vim utilized to improve user experience when accessing the Hosted Services.
5.2 Vim Intellectual Property. Vim shall own and retain all right, title, and interest in and to the Hosted Services and Deliverables, including all documentation, modifications, improvements, upgrades, derivative works, and all other intellectual property rights thereto and therein, including Vim’s name, logos and trademarks reproduced through them. Provider agrees not to copy, alter, modify, reverse engineer or create derivative works of the Hosted Services or Deliverables, or otherwise use the Hosted Services or Deliverables in any way that violates the terms of this Agreement.
5.3 Name Logos. Without charge to Vim, Provider grants to Vim a non-exclusive right to use Provider’s name and logo for purposes of fulfilling Vim’s obligations hereunder, as well as on Vim’s website for promotional and/or publicity purposes.
5.4 Work for Hire; Joint Development. Vim does not provide any services which result in work for hire, work product or joint development. Professional Services and Deliverables provided to Provider do not include any development rights or intellectual property rights related to the Hosted Services except for the limited right to access and use the Hosted Services as permitted hereunder upon payment of all related fees.
5.5 Feedback. If Provider provides to Vim any ideas, suggestions, improvements, reviews and other information related to the Services provided by Vim (“Feedback”), Provider expressly agrees and hereby irrevocably grants to Vim, without any compensation, a world-wide, perpetual, non- exclusive, royalty-free, assignable, sublicensable, transferable rights to use such Feedback for any purpose, and Provider irrevocably waives, and cause to be waived, against Vim and its users any claims and assertions of moral rights with respect to such Feedback. Provider represents, warrants and agrees that its Feedback does not contain the confidential or proprietary information of Provider or any third party. Vim is under no obligation of confidentiality, express or implied, with respect to the Feedback.
6. Term; Termination. This Agreement shall continue until terminated in accordance with the terms hereof; provided that, the terms of this Agreement shall continue to govern any active SOW notwithstanding that no further SOWs may be entered into after termination of this Agreement. An SOW may only be terminated without cause or for convenience if expressly provided in the applicable SOW.
6.1 Termination for Convenience. Either Party may terminate this Agreement without cause or for convenience upon sixty (60) days written notice from one Party to the other Party. 4
6.2 For Breach. Either Party may terminate this Agreement, or any SOW, for a material breach by the other Party, which breach is not cured within thirty (30) days of written notice provided to the breaching Party, or which breach is incapable of being cured.
6.3 For Insolvency. Either Party may terminate this Agreement upon notice to the other Party if the other Party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver or trustee appointed, or is the subject of a proceeding under bankruptcy or insolvency law that is not dismissed within thirty (30) days of the filing date thereof.
6.4 Effect of Termination. In the event of any expiration or termination of this Agreement or any SOW: (i) all of Provider’s rights to access and use the Hosted Services and Vim’s obligations to provide Professional Services and deliver Deliverables hereunder shall cease, except as otherwise provided in the Agreement or the applicable SOW or agreed in writing between the Parties; (ii) Provider will remain liable for any amount due under any SOW entered into hereunder (adjusted on a pro rata basis, if provided for under the terms of any such SOW); and (iii) Vim will wind up its work in a commercially reasonable manner, return all Provider Data in its possession to Provider, and refund to Provider any monies prepaid by Provider but not applied to the SOW as of the effective date of termination. Upon termination of this Agreement, those clauses which by their nature are intended to survive shall survive.
7. Confidentiality. (i) Each Party acknowledges that each of them may have access to confidential and proprietary information related to the other Party’s business (the “Confidential Information”) including, but not limited to, information regarding products, operations, business plans, business strategies, business processes, customers, pricing, product roadmaps, procedures, and billing and collection procedures, and any other information, that, at the time of its disclosure, can reasonably be considered proprietary and/or confidential information regarding such Party’s business. Confidential Information may include information designated as confidential at the time of disclosure or which a reasonable person in same or similar circumstances would understand to be confidential. Each Party agrees to use such Confidential Information only as contemplated by this Agreement and further agrees not to disclose any Confidential Information without the prior written consent of the disclosing Party. (ii) Confidential Information will not include any information that the receiving Party can establish by convincing written evidence: was independently developed by the receiving Party without use of or reference to any Confidential Information belonging to the disclosing Party; or was acquired by the receiving Party from a third party having the legal right to furnish same to the receiving Party without disclosure restrictions; or was generally known by or available to the public through no fault of the receiving Party. A receiving Party’s obligations of confidentiality hereunder shall continue in perpetuity with respect to the disclosing Party’s Confidential Information that Recipient has previously received until the obligations no longer apply pursuant to the exclusions set forth herein. For the avoidance of doubt, the Parties agree that the provisions of this section hereby supersede any prior written or oral agreements between the Parties regarding confidentiality or nondisclosure. (iii) These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency. The receiving Party will give prompt notice to the disclosing Party of any such order, if so permitted thereunder, and will reasonably cooperate with the disclosing Party at the disclosing Party’s request and expense to obtain a protective order.
8. Representations; Warranties; Disclaimers.
The representations and warranties made in this Section are in addition to and do not limit any other representations and warranties made elsewhere in this Agreement. Each Party hereby represents and warrants to the other Party that: (i) it has the full right, power and authority to enter into this Agreement; and (ii) this Agreement is a valid and binding obligation of such Party. Except for the preceding warranty, VIM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE HEREUNDER. VIM DOES NOT WARRANT THE RESULTS OF USE OF THE HOSTED SERVICES, AND PROVIDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT 5 THERETO. PROVIDER HEREBY ACKNOWLEDGES AND AGREES THAT IN USING THE HOSTED SERVICES, INFORMATION PROVIDED BY PROVIDER MAY TRAVEL THROUGH THIRD PARTY INFRASTRUCTURE. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, VIM MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURE.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT OR ANY SOW ENTERED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VIM’S LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR AN SOW EXCEED THE AMOUNT PAID BY PROVIDER FOR THE PREVIOUS THREE (3) MONTH PERIOD FOR THE SPECIFIC SOW UNDER WHICH THE CLAIM AROSE. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS FOR INDEMNITY AND/OR BREACH OF CONFIDENTIALITY HEREUNDER.
10.1 UPON WRITTEN REQUEST BY PROVIDER, VIM AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PROVIDER AGAINST ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, LOSSES, COSTS AND EXPENSES, INCLUDING ATTORNEY’S FEES AND LITIGATION EXPENSES ARISING OUT OF A THIRD PARTY CLAIM THAT THE HOSTED SERVICES INFRINGE A THIRD PARTY UNITED STATES PATENT OR UNITED STATES COPYRIGHT. The foregoing indemnification obligations does not apply to any liabilities, claims and expenses arising out of Provider Data or a breach of warranty by Provider.
10.2 UPON A REQUEST BY VIM, PROVIDER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS VIM AGAINST ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, LOSSES, COSTS AND EXPENSES, INCLUDING ATTORNEY’S FEES AND LITIGATION EXPENSES ARISING OUT OF OR RELATING TO ANY BREACH BY PROVIDER OR PROVIDER’S DESIGNEES OF A REPRESENTATION OR WARRANTY HEREUNDER, TELEPHONE CALLS OR TEXT MESSAGES SENT BY VIM HEREUNDER, OR FROM A BREACH OF PROVIDER DATA.
10.3 A Party seeking indemnification shall promptly notify the other Party of any such claim, action or proceeding upon becoming aware of it. The Party obligated to indemnify the other Party hereunder may select counsel of its choosing. However, in the event that such Party does not timely act, then the indemnified Party reserves the right at the indemnifying Party’s expense to retain counsel and commence such defense.Each Party agrees not to settle any matter involving an indemnity claim without the prior written consent of the other Party which consent shall not be commercially unreasonably withheld.
11. Miscellaneous. (i) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. (ii) Either Party may bring suit in court to enjoin any violation of this Agreement without the posting of a bond or security, in addition to whatever remedies the Party might have at law. (iii) Section headings are for convenience only and shall not affect the meaning or interpretation of this Agreement. (iv) If any provision contained in this Agreement is determined to be unenforceable, then such provision will be severed and replaced with a provision which closely follows the intent of such provision which may be enforced and the remaining provisions of this Agreement will remain in full force and effect. (v) Any modification of this Agreement shall be in writing signed by the Parties. (vi) This Agreement may not be assigned by either Party without the other Party’s prior written consent. (vii) Vim and Provider are independent contractors, and neither Vim nor Provider is an agent, representative, employer, employee, or partner of the other. (viii) Neither Party shall have any right or authority to 6 assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever. (ix) The Agreement controls the relationship between the Parties and does not create any third party beneficiary rights. (x) This Agreement, including any SOWs, constitutes the entire agreement between the Parties with respect to the subject matter herein. (xi) Failure to insist on strict performance of any provisions of this Agreement will not constitute a waiver of any breach or failure of performance and no waiver of any provision of the Agreement will be valid unless in writing and acknowledged in writing or electronically by both Parties. (xii) Any notices under this Agreement shall be sent to the addresses set forth above by nationally recognized express delivery service and deemed given upon receipt. (xiii) This Agreement merges all prior negotiations and drafts of the Parties with regard to the transactions contemplated herein.