Free MCO Portal Access Agreement

IMPORTANT – READ CAREFULLY: This MCO Portal Access Agreement (“Agreement”) constitutes a legal agreement, which governs the relationship between Homecare Software Solutions, LLC d/b/a HHAeXchange (“we,” “our,” “us,” or “HSS”) and the users (“you” or “Customer”) who use our free provider portal (“Portal”). For the avoidance of doubt, “you” and “Customer” include the individual users and the business entity on whose behalf the individual user access or uses our Portal. This Agreement shall be effective as of the date of acceptance by Customer. HSS and Customer are each a “Party” and collectively the “Parties”.

HSS PROVIDES CUSTOMER AND ITS AUTHORIZED USERS ACCESS TO ITS PORTAL SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER AND ALL OF ITS AUTHORIZED USERS ACCEPT AND COMPLY WITH ALL TERMS AND CONDITIONS IN THIS AGREEMENT. BY ACCESSING OR USING THE PORTAL OR CHECKING THE BOX INDICATING CUSTOMER’S AGREEMENT, CUSTOMER: (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND CONDITIONS; (B) REPRESENTS AND WARRANTS THAT, AS AN INDIVIDUAL, CUSTOMER IS 18 YEARS OF AGE OR OLDER; (C) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND CUSTOMER (BOTH AS AN INDIVIDUAL AND ON BEHALF OF ITS BUSINESS ENTITY) TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT; AND (D) REPRESENTS AND WARRANTS THAT IT WILL CAUSE ALL OF ITS AUTHORIZED USERS TO COMPLY WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, RESTRICTIONS, OBLIGATIONS AND AGREEMENTS SET FORTH IN THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, HSS WILL NOT AND DOES NOT HAVE ANY OBLIGATION TO PROVIDE CUSTOMER OR ITS AUTHORIZED USERS ACCESS TO THE PORTAL AND MAY IMMEDIATELY SUSPEND CUSTOMER’S AND ITS AUTHORIZED USERS’ ACCESS TO THE PORTAL. IF CUSTOMER DOES NOT AGREE TO ANY TERM OR CONDITION HEREIN, CUSTOMER MUST NOT ACCESS OR USE THE PORTAL AND MUST NOT PERMIT ANY OF ITS AUTHORIZED USERS TO ACCESS OR USE THE PORTAL. “AUTHORIZED USERS” MEANS ANY INDIVIDUAL OR ENTITY WHO IS AUTHORIZED BY CUSTOMER TO USE THE PORTAL UNDER CUSTOMER’S ACCOUNT. CUSTOMER MAY PROVIDE AUTHORIZED USERS ACCESS TO THE PORTAL IF AND ONLY IF CUSTOMER CAUSES ALL AUTHORIZED USERS TO AGREE IN WRITING TO COMPLY AT ALL TIMES WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, RESTRICTIONS, OBLIGATIONS AND AGREEMENTS.

THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY, FROM TIME TO TIME, BE AMENDED BY HSS IN ITS SOLE AND ABSOLUTE DISCRETION. TO THE EXTENT THAT HSS MAKES ANY MATERIAL CHANGES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IT WILL USE ITS BEST EFFORTS TO NOTIFY CUSTOMER WITHIN THIRTY (30) DAYS OF SUCH CHANGE TAKING EFFECT. BY CHECKING THE BOX INDICATING YOUR AGREEMENT AND CONTINUED USE OF THE PORTAL AFTER HSS NOTIFIES CUSTOMER OF MATERIAL CHANGES TO THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY SUCH CHANGES TO THIS AGREEMENT.

In consideration of your use and access to the Portal, you acknowledge and agree that you have read and understand this Agreement and agree to be bound by the following terms and conditions:

  1. We hereby grant you a limited, terminable, revocable, non-exclusive, nontransferable, nonsublicensable right to access and use the Portal solely for Customer’s internal business purposes in the manner agreed upon with HSS.

  2. HSS retains all right, title, interest and intellectual property and proprietary rights in and to the Portal and HSS documentation, including all copies, enhancements, modifications, configurations, customizations, or updates thereto and derivative works thereof (by whomever produced), any and all suggestions, recommendations, enhancement requests, or other feedback provided by Customer in connection with this Agreement. Customer will not acquire any rights therein by implication, estoppel or otherwise. You acknowledge that the Portal is commercially valuable to HSS and any information related to the same is to be treated as confidential, proprietary and containing trade secrets of HSS. HSS may change the functionality of the Portal at any time with or without notice to Customer.

  3. Customer is responsible for Authorized Users’ compliance with this Agreement and for access to Customer Data or the Portal by other persons as a result of Customer’s failure to use reasonable precautions to secure its own systems or credentials for access to the Portal. Customer will: (i)use its best efforts to prevent unauthorized access to or use of the Portal, and notify HSS immediately of any such unauthorized access or use; (ii) cooperate with any reasonable investigation by HSS of any outage, security problem or suspected breach of this Agreement; and (iii) comply with all HSS instructions relating to Customer’s access to or use of the Portal, including, but not limited to, instructions specifying specific windows of time for certain types of Customer Data Customer will cause all Authorized Users to comply with this Section 3.

  4. Customer will not: (i)use the Portal outside the scope of permitted use expressly set forth in this Agreement or for other than its own internal business purposes; (ii) use or access the Portal in violation of applicable laws, rules and regulations, including data privacy laws and regulations; (iii) sell, resell, license, lease, transfer, redistribute, assign or otherwise commercially exploit or make the Portal available to any third party; (iv) send, store, submit or upload libelous, unlawful or tortious material on or to the Portal; (v) send, store, submit or upload malicious or harmful code on or to the Portal; (vi) interfere with or disrupt the integrity or performance of the cloud environment where the Portal is deployed; (vii) attempt to circumvent security restrictions or protocols for the cloud environment where the Portal is deployed; (viii) duplicate or reverse engineer the Portal, in whole or in part; (ix) disclose the results of any benchmarking test; or (x) remove or modify any proprietary markings or notices on the Portal or any materials made available by HSS. Customer will cause all Authorized Users to comply with this Section 4.

  5. HSS may, on written notice, suspend access to the Portal without liability if: (i)HSS reasonably believes that the Portal is being used in violation of this Agreement; (ii) Customer does not cooperate with reasonable investigation by HSS of any suspected violation of this Agreement; (iii) the Portal or Customer Data are accessed or manipulated by a third party without Customer’s consent; (iv) HSS is required by law, or a regulatory or government body to suspend access to the Portal; (v) if any undisputed invoiced amounts under any agreement with HSS remain unpaid by Customer for more than thirty (30) calendar days past the due date; or (vi) there is another event for which HSS reasonably believes that the suspension of access to the Portal is necessary to protect the cloud environment in which Customer’s instance of the Portal is deployed.

  6. HSS does not own any of the data, information, or material that you submit or enter into the Portal (“Customer Data”). You hereby grant to HSS a non-exclusive, royalty-free, perpetual, irrevocable license to host, store, use, copy, disclose, display and distribute Customer Data as necessary for us to provide you the Portal and related services. You agree that all Customer Data is provided in accordance with all applicable laws, regulations, and industry rules and procedures. You agree that Customer Data will be accurate and complete, and that you, and not HSS, shall have the liability or responsibility for any circumstances arising from erroneous or incomplete information provided by you.

  7. You hereby grant to HSS the right to act as a submitter for you and that HSS may both submit and receive claims and remittances to and from payers and claim clearinghouses on your behalf.

  8. It is your sole responsibility to keep your user name, password, and other sensitive information necessary to access the Portal confidential. If you become aware of any unauthorized use of your account or any other breach of security, you shall notify us immediately.

  9. Each Party may disclose non-public information, including, but not limited to, technical, marketing, financial, personnel, medical records, and other proprietary information, including Customer Data and other information unrelated to your use of the Portal (“Confidential Information”). Each Party agrees that any Confidential Information received will be the sole and exclusive property of the other Party and may not be used or disclosed except as may be necessary to perform the obligations required under this Agreement. Confidential Information shall only be disclosed (a) to receiving Party’s employees, agents and consultants to the extent that such persons have a specific need to know the Confidential Information for the purposes contemplated herein and have agreed to abide by confidentiality restrictions comparable to receiving Party’s obligations hereunder or (b) pursuant to the lawful requirement or request of a governmental authority, or as required by applicable law (provided that the Party making the disclosure has given notice to the other Party and has made a reasonable attempt to obtain a protective order limiting disclosure and use of the information so disclosed). The receiving Party shall promptly advise the disclosing Party in writing if it learns of any unauthorized use or disclosure of Confidential Information by any of its employees or former employees.

  10. Customer hereby represents to HSS that (a) it has full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (b) this Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms; and (c) its acceptance, delivery and performance of this Agreement will not result in a breach of any material agreement or understanding to which it is a party.

  11. HSS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE COMPLIANCE, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PORTAL. HSS DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PORTAL WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE PORTAL WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (C) THE PORTAL WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (D) ERRORS OR DEFECTS WILL BE CORRECTED; (E) THE PORTAL OR SERVER(S) THAT MAKE THE PORTAL AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (F) THE PORTAL IS IN COMPLIANCE WITH MEDICARE/MEDICAID LAWS AND ANY OTHER FEDERAL, STATE AND LOCAL LAWS, RULES OR ORDINANCES RELATING TO THE MEDICAL INSURANCE BILLING REQUIREMENTS OR OTHERWISE WITHIN THE SCOPE OF THIS AGREEMENT. THE PORTAL IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS”, “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. HSS SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRUPTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA.

  12. You agree to indemnify, defend, and hold HSS and its respective affiliates, officers, directors, distributors, owners, resellers, licensors, customers, members, managers, employees, agents, representatives, successors and permitted assigns, harmless from and against any and all liabilities, claims, demands, suits, actions, causes of actions, investigations, subpoenas, settlements, losses, damages, costs, awards, fines, fees, penalties or expenses, including, but not limited to, reasonable attorneys’ fees, arising from or related to: (i) Customer’s or any Authorized User’s use of the Portal; (ii) HSS’ access to or use or disclosure of the Customer Data; (iii) content of Customer Data; or (iv) Customer’s or any Authorized User’s actual or alleged breach of any representation, warranty, covenant, restriction or obligation contained in this Agreement.

  13. Upon reasonable prior written notice, HSS may audit Customer’s use of the Portal to ensure that Customer is in compliance with this Agreement. Upon such notice, Customer will provide an HSS representative with reasonable access to all relevant records during regular business hours.

  14. HSS shall not be liable to you OR ANY THIRD PARTY for any indirect, punitive, special, exemplary, incidental, or consequential damages (including loss of data, lack of compliance, revenue, profits, use, or other economic advantage) in any way connected with the PORTAL, this Agreement OR ANY BUSINESS ASSOCIATE AGREEMENT BETWEEN THE PARTIES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY OF THE LIMITED REMEDIES OF THIS AGREEMENT FAIL TO FULFILL ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HSS’ CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PORTAL OR ANY BUSINESS ASSOCIATE AGREEMENT BETWEEN THE PARTIES WILL BE LIMITED TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) IN THE AGGREGATE. THE FOREGOING TERMS OF THIS SECTION 14 WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  15. If at any time you do not agree to the terms of this Agreement, you must immediately cease your use of the Portal. If you violate this Agreement, we reserve the right to stop providing you with access to the Portal. You acknowledge that we are not required to notify you of such action. We reserve the right to terminate your access to the Portal for any reason or no reason, including your continuous non-use of the Portal for an extended period of time. Upon termination for any reason, you will immediately cease all use of and access to the Portal and will refrain from any future use of the same.

  16. Customer may not assign this Agreement, by operation of law or otherwise, in whole or in part, without HSS’ prior written consent. Subject to the foregoing, this Agreement will be binding on, inure to the benefit of, and enforceable by and against the Parties and their respective successors and permitted assigns. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. The failure of either Party to assert any of its rights under this Agreement will not be deemed to constitute a waiver by that Party of its right thereafter to enforce each and every provision of this Agreement in accordance with their terms. The Parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between HSS and Customer. Neither Party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

  17. This Agreement will be exclusively governed and construed in accordance with the laws of the state of New York without regard to the conflicts of law principles. The state and federal courts located in New York, New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each Party consents to such exclusive jurisdiction. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed in their entirety.

  18. The Parties agree that a breach of Section 3, Section 4 or Section 9 would result in irreparable and continuing damage for which there will be no adequate remedy at law, and each Party will be entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.

  19. This Agreement, together with HSS’ then-current Privacy Policy, website Terms and Conditions, and the Business Associate Agreement between the Parties (if any), constitutes the entire agreement between the Parties pertaining to the subject matter hereof and all other prior or contemporaneous agreements, understandings, representations, warranties, and writings are superseded hereby. The recitals and introductory sections of this Agreement are incorporated herein by reference and are a part of this Agreement. If any term or condition of this Agreement conflicts with any term or condition of HSS’ then-current Privacy Policy, website Terms and Conditions, or the Business Associate Agreement between the Parties (if any), the term or condition of this Agreement shall prevail.

  20. Customer covenants and agrees that, subsequent to the acceptance of this Agreement and without any additional consideration, Customer shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.

  21. Except for indemnified parties under Section 12, this Agreement are entered into solely between, and may be enforced only by, Customer and HSS. Except for indemnified parties under Section 12, this Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties, or to create any obligations of either Party to any such third parties.

  22. Rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses.

  23. Upon termination or expiration of this Agreement, all rights granted to Customer hereunder will terminate immediately. Sections 2 through 23 (inclusive) will survive the termination or expiration of this Agreement.

CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. BY CHECKING THE BOX, CUSTOMER IS AGREEING TO THE TERMS AND CONDITIONS SET FORTH ABOVE. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER SHALL NOT CHECK THE BOX.