Terms of Service

ELECTRONIC REMEDY INC., a Delaware corporation (“Exclaim”), provides practice management software and services to healthcare providers. These terms and conditions apply to the use of the Website, our IOS and Android Apps. The terms “you” and “your” refer to any person or business using the website, applications, or services. If you are using the Website and/or services on behalf of a business entity, you represent and warrant that you have the authority (express or implied) to legally bind that entity to these terms and conditions.

1.Exclaim Software and Service

1.1 Exclaim will provide Customer with access to proprietary medical billing service and web-based medical billing service with the following functionality: (i) Medical Billing & Collections, including patient authorization, verification of coding and insurance claims; and (ii) Clearinghouse Services, including verification of insurance eligibility, claim submission and follow up, and electronic remittance reports.
1.2 Exclaim medical billing service may include electronic messaging service for dialogue between the COMPANY and Customer.

2.Provision of Services: The Company’s Responsibilities

2.1 All service functionality of Exclaim will be provided within and through its website, applications, and services provided under the terms of this Agreement.
2.2 The COMPANY must (i) use commercially reasonable efforts to make the services available; and (ii) provide customer support for the services as further detailed at https://www.exclaimapp.com.
2.3 The COMPANY may subcontract the provision of some or all of the services under this Agreement.

3.Use of Services: Customer’s Responsibilities

3.1 (i) Customer is solely responsible for Customer data; (ii) Customer may use the services only in accordance with the user guides or guidelines provided by the COMPANY and applicable law; (iii) Customer must use commercially reasonable efforts to prevent unauthorized access to the services provided under this Agreement and promptly notify the COMPANY in case of any unauthorized access; and (iv) Customer will promptly notify the COMPANY of the occurrence or non-occurrence of any factor or event that is likely to cause a material delay, or is otherwise likely to adversely affect the COMPANY’s ability to meet any obligation under this Agreement.
3.2 Customer may allow its employees and contractors to access Exclaim software and service in compliance with the terms of this Agreement, provided that such access is for the sole benefit of the Customer.
3.3 (i) Customer is responsible for the compliance with this Agreement by its employees, contractors and clients. (ii) Each employee, contractor and client of Customer with access to Exclaim software, property and services must agree to the Terms of Service for access or use of Exclaim Software and Service.
3.4 Customer may not engage in any of the following activities: (i) distribute, resell, rent, sublicense, or make available to others the software, service component or documentation or any copies thereof; (ii) modify, translate, adapt, disassemble, or create derivative works from the software, service component or documentation; (iii) use the software to store or transmit unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the rights of any third-parties, including without limitation any privacy rights or intellectual property rights; (iv) interfere with or disrupt the integrity or performance of the software or services provide under this Agreement; or (v) attempt to gain unauthorized access to the software or their related systems or networks.

4.Term, Termination and Suspension of Service

4.1 Term. (i) The thirty (30) day free, no-charge Trial Offer will commence on the Effective Date; (ii) The COMPANY will notify the Customer five (5) days prior to expiration of the Trial Offer, at which time the Customer may continue receiving the services under this Agreement on a month-to-month basis upon payment to the COMPANY; and (iii) No long-term commitment is required.
4.2 Termination. Either Party may terminate this Agreement with or without cause. The COMPANY must provide at least five (5) days advance notice before terminating its services to the Customer.
4.3 The COMPANY’s Obligations upon Termination. Upon termination of this Agreement, the COMPANY must refund any prepaid and unused fees covering the remainder of the Term.
4.4 Customer’s Obligations upon Termination. Upon termination of this Agreement by the COMPANY, Customer must promptly pay any unpaid fees covering the remainder of the Term and discontinue use and distribution of all Exclaim property and software. Customer, upon request, will confirm that it has complied with these requirements.
4.5 Return of Data. (i) Before termination of this Agreement, Customer may download its Customer Data, which will only be provided in the format in which it is maintained prior to termination; (ii) After termination, the COMPANY shall have no obligation to maintain any of the Customer Data; (iii) The Customer data refers to data provided by Customer only, and includes patient records (including patient demographic information, case information, and insurance policy information) and claim records (including encounter and claim information, billed amount, adjustments, payments, and current balance information).
4.6 Suspension of Service for Violations of Law. The COMPANY may immediately suspend the services and remove applicable Customer Data if it in good faith believes that, as part of using the services, Customer may have violated or will violate a law. The COMPANY may try to contact the Customer in advance, but it is not required to do so.

5.Payment

5.1 (i) The amount and structure of fees payable by Customer to the COMPANY will be based on the services and configuration selected by Customer using pricing defined on the website: https://www.exclaimapp.com/pricing.html; (ii) Customer must pay the fees in U.S. dollars with a credit card, via ACH or via another payment method previously agreed upon with the COMPANY ; (iii) Customer will be responsible for sales, use and other similar taxes; and (iv) Unless otherwise excepted in this Agreement, the fees may be changed by the COMPANY on thirty (30) days advance notice.
5.2 Credit Card and ACH. (i) Customer expressly authorizes the COMPANY to charge Customer’s credit card or ACH account each month for an amount equal to Customer’s then current balance, and agrees to provide the COMPANY with updated credit card or ACH information; (ii) Customer agrees to update its account with valid credit card or ACH information as soon as possible, but in no event later than five (5) days if: (a) Customer's credit card or ACH information changes, (b) Customer’s credit card or ACH information expires, or (c) Customer is notified by the COMPANY of an unsuccessful attempt to charge Customer’s credit card or ACH account for Customer’s monthly invoice total; and (iii) If the credit card number or ACH authorization is revoked, disputed or not valid for any reason (including without limitation expiration of a credit card), the COMPANY may suspend or terminate Customer’s use of the services upon notice to Customer via email, using the then current account email address in the service.

6.Support and Updates

The COMPANY’S policies for support and update of Exclaim Software and Service will be available at https://www.exclaimapp.com.

7.Proprietary Rights of Parties

7.1 Reservation of Rights by the COMPANY. The software, workflow processes, user interface, designs, know-how and other technologies provided for Exclaim services are the proprietary property of the COMPANY, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with the COMPANY. The COMPANY reserves all rights unless expressly granted in this Agreement.
7.2 Licensed Documentation. The COMPANY grants Customer a non-exclusive license for the duration of the service to use the AMA Content and the services user guide, sample data, marketing materials and other material provided or accessible through its services, for Customer’s internal use solely with the services, with the right to make additional copies of the material for such duration and purpose (Licensed Documentation). AMA Content means the coding work of nomenclature and codes for reporting of healthcare services from the print publication [Current Procedural Terminology, Fourth Edition and the data file of Current Procedural Terminology (CPT) published by the American Medical Association in the English language as used in the United States]. Except as expressly provided in this Agreement, customers may not publish, distribute or create any derivative work (including without limitation translation), transfer, sell, lease, license or otherwise make available, or use outside the United States, the AMA Content, or a portion or copy of such content. This sublicense is limited to one user for each active provider associated with the Customer's account. Customer is responsible for seeking additional user licenses directly from the American Medical Association if it requires more than one user license per active provider. CPT is a copyright and a registered trademark of the American Medical Association.
7.3 Trademarks, Logos, and Developed Product Designs. “Exclaim Trademarks” means all names, marks, logos, designs, trade dress, and other brand designations used by the COMPANY for Exclaim. Customers are granted no right, title, or license to, or interest in, any Exclaim Trademarks.
7.4 Customer Use Restrictions. Customer may not: (i) use the services or the documentation provided by the COMPANY beyond its internal operations; (ii) reverse engineer the services or the documentation provided by the COMPANY; (iii) remove or modify any proprietary marking or restrictive legends in the service; or (iv) access the service to build a competitive product or service, or copy any feature, function or graphic of the service for competitive purposes.
7.5 Customer Data. (i) All Customer Data uploaded by Customer remains the sole property of Customer, as between the COMPANY and Customer subject to the other terms of this Agreement; (ii) The COMPANY will not sell, share with a third party, or otherwise acquire any rights in Customer Data; (iii) Customer may at any time download its Customer Data from the COMPANY’s Website; (iv) In order to perform under this Agreement the COMPANY may copy, modify and use Customer Data; and (iv) The COMPANY may use during and after this Agreement aggregated, non-identifiable information and data for purposes of enhancing its services, or for technical support and internal business purposes, subject to the limitation of data set and de-identification of information regulations in compliance with the HIPAA Privacy Standards, found at https://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html.

8.Confidential Information

8.1 Neither Party shall disclose Confidential Information to any third party, except to contractors, subsidiaries or agents of either Party who have a need to know. Each Party shall protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event less than reasonable care.
8.2 Both Parties agree to abide by the provisions of the HIPAA Business Associate Contract found at https://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/contractprov.html and all covenants and warranties contained therein.

9.Disclaimer of Warranty

9.1 CUSTOMER ACKNOWLEDGES THAT ALL INFORMATION SUPPLIED BY THE COMPANY UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION EXCLAIM SOFTWARE AND THE COMPANY CONFIDENTIAL INFORMATION, IS PROVIDED “AS IS’ AND WITHOUT WARRANTY OF ANY KIND. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SAME, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED SERVICES, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
9.2 No agent of the COMPANY is authorized to incur warranty obligations on behalf of the COMPANY or modify the limitations as set forth in this Section.
9.3 Each Party represents and warrants to the other Party that it will comply with all applicable laws regarding its performance under this Agreement.

10.Exclusion of Damages and Limitation of Liability

10.1 Exclusion of Damages. EXCEPT FOR A VIOLATION OF THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS OR FOR THE INDEMNITIES BELOW, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES).
10.2 Limitation of Liability. THE COMPANY’S LIABILITY FOR ALL DAMAGES RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.

11.Indemnification

Customer must indemnify, defend, and hold harmless the COMPANY against all third-party claims, including without limitation by governmental agencies, demands, damages, costs, penalties, fines, and expenses, including reasonable attorneys’ fees and costs, arising out of or related to: (i) Customer’s breach of any representation, warranty, obligation, covenant or agreement in this Agreement; (ii) any unauthorized use, access or distribution of the services by Customer; (iii) violation of any individual’s privacy rights related to information submitted under Customer’s account; or (iv) fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account.

12.Miscellaneous

12.1 Effective Date. This Agreement is effective on the date the Customer agrees to enter into this Agreement.
12.2 Governing Law. Any action related to this Agreement will be governed by Delaware law and Controlling U.S. federal law.
12.3 Force Majeure. A Party is not liable under this Agreement for non-performance caused by events or conditions beyond that Party’s control, if it makes reasonable efforts to perform. This provision does not relieve the Customer of its obligation to make payments then owing.
12.4 Assignment. Neither Party may assign or transfer this Agreement or an order to a third party, except that this Agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a Party.
12.5 Relationship of the Parties. This Agreement is not intended to create a relationship such as a partnership, franchise, joint venture, agency, or employment relationship. Neither Party may bind the other Party, nor act in a manner that expresses or implies a relationship other than that of independent contractor.
12.6 Enforceability. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect.
12.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it.
12.8 Survival. All provisions relating to the responsibilities of the parties, proprietary rights, and confidential information survive termination or expiration of this Agreement.