Mingle Healthcare Solutions, Inc. D/B/A Mingle Health
Last Updated: November 1, 2018
The following Service Agreement (the “Agreement”) will govern your use of the Services, as defined below, and is entered into between Mingle Healthcare Solutions, Inc. d/b/a Mingle Health (“Mingle”, “we”, “us” or “our”), a business located at 8911 South Sandy Parkway, Sandy, UT 84070, and the business you represent (“you” or “your”). Mingle operates the previously separate businesses known as SilverVue and Mingle Health. This Agreement takes effect when you agree to the terms of this Agreement. You may show your agreement to and acceptance of these terms by either executing an Order Form or Statement of Work referencing this Agreement, clicking the check box linking to this Agreement, or otherwise accessing or using the Services By executing an Order Form or Statement of Work referencing this Agreement, clicking the check box linking to this agreement or otherwise accessing or using the Services, you represent and warrant that (a) you are lawfully able to enter into contracts (e.g., you are not a minor), (b) you have legal authority to bind the entity that you represent, and (c) you have read, understood, and hereby agree to this Agreement.
We may periodically make changes to this Agreement. By using the Services, you accept this Agreement and any modifications that we may make to this Agreement. You are responsible for regularly reviewing this Agreement and any policies that apply to your use of the Services to stay informed of any changes. If you continue to use the Services after the effective date of any modified terms or policies, you agree to be bound by them as of the date of the modification. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST CEASE USING THE SERVICES.
1. Mingle Services and Set-up.
(a) Services. Mingle provides cloud-based platforms and services known as Check™ and MIPS Solutions™ for use in medical practices (the “Software Platforms”) and also offers other services, as further described at www.minglehealth.com and other websites where this Agreement is posted (including the websites used to access such Software Platforms and services, the “Services”).
(b) Account Setup. When you set up an account (“Mingle Account”) to use the Services, you will be required to choose a password and user ID, and will be required to provide other registration information (collectively, “Registration Information”). You agree and represent that all Registration Information provided by you is accurate and up-to-date. If any of your Registration Information changes, you must update it in your Mingle Account. If Mingle believes that the Registration Information you provide is not correct, current, or complete, Mingle reserves the right to refuse you access to the Services, and to terminate or suspend your Mingle Account at any time. However, Mingle has no obligation to verify the accuracy, currency, completeness, or usefulness of any Registration Information that you have provided.
(c) Mingle Account Credentials. You understand that you are responsible for maintaining the confidentiality of the username, password and any other authentication credentials required to access your Mingle Account and those of any users you authorize under your Mingle Account (“Permitted Users”), and you are fully responsible for all activities that occur under your Mingle Account, including the purchase of any of the Services. You agree (a) to promptly notify Mingle if you suspect any unauthorized use of your Mingle Account (including usernames, passwords or any other authentication credentials) or any other breach of security, (b) to ensure that you exit from your Mingle Account at the end of each session, (c) not to share any username, password or any other authentication credentials with any other user or use the username, password or any other authentication credentials of any other user, and (d) to use particular caution when accessing your Mingle Account from a public or shared computer so that others are not able to view or record your password or other personal information. You acknowledge that Mingle is not responsible for any loss or damage arising from the theft or misappropriation of any username, password or other authentication credentials. Mingle recommends that you use strong passwords for your Mingle Account, never use the same password on multiple sites or services, and change your password frequently. You are directly responsible to Mingle for the conduct, acts and omissions of your Permitted Users and will ensure that your Permitted Users comply with this Agreement.
(d) Professional Services; Statements of Work for Professional Services; Change Orders. Subject to the terms and conditions of this Agreement, Mingle may perform EHR integration or other professional services for you, all of which will be considered Services where applicable under this Agreement. The specific details of the professional services to be performed (including scope of work, fees, payment schedule and timeline) will be determined on a per-project basis, and the details for each project will be described in a Statement of Work for professional services. Each Statement of Work for professional services will constitute a separate work engagement. All changes to a Statement of Work for professional services requested by either party will only be effective upon signing of a mutually agreed change order. If work on a Statement of Work for professional services is materially delayed, postponed, or discontinued by you, Mingle may suspend performance of professional services under such Statement of Work.
(e) Loaner Devices. From time-to-time, we may provide you with a laptop computer, tablet computer or other device (including all cords and accessories, a “Loaner Device”) to be used by Permitted Users to access the Services. In such event, you will ensure that Loaner Devices are used solely for their intended use in connection with the Services and in accordance with this Agreement. You will use reasonable precautions to prevent loss or damage to the Loaner Devices and their components and will promptly report loss or damage to us. If damaged or lost Loaner Devices or their components require repair or replacement, we will use commercially reasonable efforts to promptly repair or replace such Loaner Devices. If such loss or damage is due to your failing to use reasonable precautions as required, Mingle reserves the right to invoice you for Mingle’s repair or replacement costs, and you agree to pay any such invoices upon receipt. Upon expiration or termination of this Agreement, or Mingle’s earlier written request, you will also return to Mingle all Loaner Devices in the same condition as when delivered to you, ordinary wear and tear excepted. Mingle reserves the right to invoice you, at Mingle’s replacement value, for any Loaner Devices that are not returned in their entirety, and you agree to pay any such invoices. The Services will be deemed to include the Loaner Devices for purposes of Section 3, 4, 6, 7, 8, 10, 13, 14, 15 and 16.
2. Fees and Payment.
(a) Election and Fees.
(i) The fees for the Services are set forth on the Mingle fees page (“Fees Page”) or on an executed Order Form or Statement of Work between you and Mingle, each of which is incorporated into and made a part of this Agreement. Fees for the Services may be payable in advance, in arrears, per user physician or National Provider Identifier (“NPI”) number, per patient, or as otherwise described on the Fees Page or on an executed Order Form or Statement of Work between us. You agree to pay Mingle the fees indicated for the Services you purchase and for the indicated term (“Services Term”) and for any other fees set forth on an executed Order Form or Statement of Work between us. Stated fees do not include any related taxes (including sales and use taxes, duties or other governmental taxes or fees), all of which are your responsibility and will be charged to your Payment Method in addition to the fees. The Fees Page or your Order Form or Statement of Work will indicate whether the Services you purchase are subscription-based Services (“Subscription Services”) or non-subscription-based Services (“Non-Subscription Services”).
(ii) Subscription Services.
(1) Fees for Subscription Services will be charged to your Payment Method or invoiced to you on the day your Services plan selection goes into effect and will cover fees for your Services plan selection for the payment period indicated. At the end of the indicated Services Term for Subscription Services, your purchased Services will automatically renew for successive renewal Services Terms of equal length to the initial Services Term and the applicable fees will continue to be charged to your Payment Method or invoiced to you on a recurring basis until you change your Services plan selection or terminate this Agreement, and you hereby authorize Mingle to charge your Payment Method for such recurring charges as applicable. The amount of the charge for each renewal Services Term will be the then-current fee applicable to the Services plan and Services Term you selected as set forth on the Fees Page or otherwise communicated to you. You acknowledge that the amount of the charge may increase if the applicable fee increases.
(2) You may upgrade or downgrade your Subscription Services plan selection at any time. Plan downgrades will take effect only at the end of your current term and must be made at least 10 business days prior to the start of your next renewal Services Term in order to avoid billing of the next renewal Services Term’s fees at the prior rate. Services upgrades will take effect immediately and you will be charged a prorated fee for the remainder of your current Services Term based on the difference in price between your current plan and the upgraded plan.
(iii) Non-Subscription Services. Fees for Non-Subscription Services and other Services will be charged to your Payment Method or invoiced to you according to the applicable Fees Page, Order Form or Statement of Work. At the end of the indicated Services Term for Non-Subscription Services, your purchased Services will expire and will require mutual written agreement for any renewal. Fees and Services changes for any renewal term will be determined at the time of renewal.
(b) Payment Method. Mingle may, from time to time, offer various expedited payment methods, including payment by credit card, debit card, or direct debit. If you select such a payment method, or provide such a payment method on an Order Form or Statement of Work, when purchasing the Services (the “Payment Method”), you authorize Mingle to charge you for Services through such Payment Method and agree to make payment using such Payment Method. Mingle may, from time to time, receive and use updated payment method information provided by you or that financial institutions or payment processors may provide to us to update information related to your Payment Method(s), such as updated expiration dates or account numbers. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the “Payment Method Provider”). If Mingle does not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from Mingle. Your non-termination or continued use of the Services reaffirms that Mingle is authorized to charge your Payment Method.
(c) Current Information Required. You agree to provide current, complete and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) with Mingle as necessary for the processing of all payments that are due to Mingle. You agree to promptly notify us if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for Services and you remain responsible for all such charges.
(d) Payment Matters. Payment of all invoices is due within 30 days of invoice receipt. If your Payment Method fails or your account is past due, Mingle reserves the right to either suspend or terminate your use of the Services. You agree to submit in writing to Mingle any disputes regarding any fees invoiced to you within 30 days of invoice receipt, or charged to your Payment Method within 60 days of such charge, otherwise such dispute will be waived and such invoices and charges will be final and not subject to challenge. You agree to reimburse us for all collection costs. Mingle reserves the right to charge you interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate permitted by applicable law, whichever is lower. Mingle has a no refund and no cancellation policy. You should contact your Mingle project manager or consultant if you believe special circumstances justify an exception to this policy. Any refunds or cancellation will be at our sole and absolute discretion. All prices for Services are subject to change without notice; however, Mingle will use reasonable efforts to notify you at least 30 days before any price increase.
3. Certain Customer Responsibilities and Additional Requirements.
(a) Grant of License. As between the parties, and except as otherwise expressly stated in this Agreement, you will own and retain all rights, title, and interest in and to all data, information, text, graphics, links, and all other materials submitted by you or on your behalf, or that you allow us to access or upload from your systems, for processing by the Services (collectively, the “Client Content”). You hereby grant to Mingle and its suppliers a non-exclusive, worldwide, transferable, sublicensable, and fully paid-up right and license to analyze, process, use, disclose, transfer, publish, display, compile, create derivative works of and otherwise exploit, the Client Content for purposes of providing the Services and operating our business, subject to any limitations in the Business Associate Terms regarding PHI (as defined below).
(b) Responsibility and Use of Client Content. You are solely responsible (and assume all liability and risk) for determining whether or not Client Content is legal, appropriate or acceptable, and whether you have the right to provide, access and use such content and grant to Mingle and its suppliers the right to access and use such content under this Agreement. Mingle will not be responsible for the Client Content. Mingle reserves the right at all times, at its discretion and without notice to you, to remove or refuse to store or use any Client Content within the Software Platforms. Mingle also reserves the right to access, preserve and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights and property of Mingle, its users and the public. You acknowledge that you are responsible for setting access rights and privileges for any of your Permitted Users.
(c) Disclosure of Patient Data. Without limiting the foregoing, you are solely responsible for the following: (i) training Permitted Users on any patient opt in or opt out procedures related to use of Services; (ii) verifying the nature, quality, integrity, legality, and status of any patient data being used, disclosed, accessed, or transferred using the Services, and for decisions with respect to use and disclosure of PHI and for transmission of any PHI (as defined below) to, from, within or through the Software Platforms, including any determination as to whether patient authorization is required for such activities; and (iii) ensuring that your Permitted Users make independent and informed decisions prior to initiating or allowing electronic uploads or transfers of patient information and do not disclose data relating to patients who have opted out without express consent from each such patient, or relating to any patient who has not given all consents required by applicable law.
(d) Medical Diagnosis, Treatment & Billing. You or your Permitted Users are solely responsible for use of the Services and for verifying the accuracy and adequacy of information and data transmitted through or stored in the Software Platforms or otherwise used in connection with the Services, as well as for complying with all laws, regulations, and licensing requirements applicable to delivery of healthcare services. Therefore, you or your Permitted Users should verify information and data with each patient and/or the patient’s representatives before such information is relied upon or used in diagnosing or treating the patient. All medical practice management, clinical and medical treatment, diagnostic, and billing decisions are the sole responsibility of you and your Permitted Users and healthcare providers or billing specialists. You will indemnify and hold Mingle and its licensors, and their respective officers and employees, harmless from any and all claims that any improper medical treatment resulted from the use of or reliance upon the Services.
(e) Eligibility Verification. With respect to Services involving Medicaid or other insurance or payer eligibility verification services, you agree that, and you will ensure that your Permitted Users, healthcare providers and billing specialists agree that: (i) access to eligibility information shall be restricted to the sole purpose of verification of eligibility where the patient has requested Medicaid or other insurance or payer payment for medical services; (ii) verification of eligibility under the system is not a guarantee of coverage or payment – the official records and determination as to the patient’s eligibility status shall be the final authority, and neither Mingle nor our service providers will have any liability for denied payment; (iii) you will abide by the applicable federal and state laws and regulations regarding confidentiality of information; (iv) certain payers require enrollment to process eligibility verification requests, which must be completed before requests and verification information can be sent electronically; (v) payers may be added or removed from the eligibility verification services, and Mingle will use commercially reasonable efforts to provide you with notice of such removal; and (vi) neither Mingle nor its service providers will be responsible for eligibility verification requests that fail due to incorrect or invalid data.
(f) CMS Quality Reporting. Mingle is approved as a Qualified Registry (“Qualified Registry”) and a Qualified Clinical Data Registry (“QCDR”) by the Centers for Medicare and Medicaid Services (“CMS”) for purposes of reporting physician performance measurement data under the Medicare Merit-Based Incentive Payment System (“MIPS”). By purchasing Services involving MIPS reporting, you agree to the following additional terms as a condition to our ability to provide these Services to you:
(i) you hereby attest that you and each of your participating healthcare providers is a Medicare provider and can bill Medicare Part B services;
(ii) you will provide us with access to an administrative resource for purposes of project coordination and management, to obtain the necessary data, permissions to submit and other project requirements and communications;
(iii) you will upon request provide us with information and documentation we require, including: (A) your full name and address and the full name and address of each participating healthcare provider; (B) your tax identification number (“TIN”) and the TIN of each of your participating healthcare providers, as well as other information and documentation to allow us to verify that that TINs are active and correct (e.g., IRS tax identification notice letter); and (C) the NPI number of each of your participating healthcare providers, and you understand that should information supplied not meet the specifications we provided, additional charges may apply;
(iv) you agree (A) that we may import patient population and/or other information that corresponds to each performance measure’s numerator and denominator from your EHR (if you have asked or permitted us to integrate our systems with your EHR); and/or (B) to provide to us the necessary information for us to calculate each performance measure;
(v) upon our request, you will review and certify all data, data classifications and calculations before we submit data to the MIPS Program;
(vi) you hereby consent to our use of your Client Content and resulting calculations for purposes of reporting on you and/or your healthcare providers to the MIPS program and you acknowledge that Mingle has no control over, and will not be liable for, how CMS handles your data;
(vii) by initiating and authorizing submission of data and calculations to the MIPS program, you certify that the data and calculations are true and correct;
(viii) you acknowledge that all data, data classifications and calculations are subject to an independent audit to compare patient level information, and all data, data classifications and calculations and the details and basis of calculations may be provided to CMS;
(ix) you hereby agree to execute, and to require that your participating healthcare providers execute, Mingle’s verification/consent/waiver form(s) from time-to-time as a condition of participating in the MIPS reporting program;
(x) You acknowledge that, as a Qualified Registry and QCDR, Mingle is required to make certain commitments to CMS and you will cooperate with Mingle in fulfilling those commitments, including (A) allowing Mingle to perform ongoing monitoring of Client Content and providing additional Client Content upon our request, (B) participating fully in any audit of you, your participating healthcare providers and/or Client Content, including providing all requested data, information and records by us, an independent auditor or CMS, and (C) immediately correcting any inaccurate or incomplete data, information and records; and
(xi) you acknowledge and agree that Mingle does not provide any guarantees that you will avoid CMS penalties or payment adjustments or that you will receive bonus or incentive payments from CMS as a result of your submission of data through the Services.
If you do not provide accurate, complete and timely information, as well as full and timely cooperation, we will not be able to perform MIPS reporting on your behalf, MIPS reporting may be inaccurate and you may be subject to legal action by the Federal government for false reporting. We will not be responsible or liable as a result.
(g) Chronic Care Management, Health Risk Assessment and Other Patient Contact. If you have purchased our Chronic Care Management Services, Health Risk Assessment Services or other Services involving patient contact, you agree to the following additional terms as a condition to our ability to provide these Services to you:
(i) you agree to Mingle contacting by phone, email or other means and engaging directly with the patients for whom these Services will be performed (“Subject Patients”);
(ii) if you are given access to a Software Platform for us to record data and engage with you regarding the Subject Patients, you agree not to use the applicable Software Platform for other patients, unless you have purchased additional Services giving you the right to use the Software Platform for those other patients;
(iii) if you use a Software Platform in violation of subsection (ii) above, you will be charged at our standard rates for usage for those other patients, and you agree to pay any such charges;
(iv) where these Services involve activities for which it is possible to bill CMS or another payor, you agree that any billing code information we provide is for reference only, and you will be responsible for ensuring that all CMS or other payor requirements for billing have been met and for billing and collecting from CMS or payor; and
(v) fees will be charged to you for the Services we perform, without regard to whether you bill and receive reimbursement from CMS or other applicable payor.
(h) Additional Customer Responsibilities. In order for Mingle to perform its obligations (including warranty), you will:
(i) obtain and maintain all licenses, permits, approvals, authorizations, consents, and enrollment forms necessary for your use of Services (excluding regulatory approvals for the Services itself, if any), including those required for use, access, disclosure, and transfer of patient information or as otherwise required by providers, fiscal intermediaries, or state or federal government entities with respect to your use of the Services;
(ii) establish and implement reasonable and customary privacy and security policies within your facilities that comply with applicable law (including HIPAA);
(iii) comply, and ensure that each Permitted User complies, with (A) the applicable terms of this Agreement and all policies referenced herein, (B) the privacy and security policies in place within your facilities, and (C) industry practice in connection with the creation, transmission, storage, viewing, access to, or other use of clinical and other information as contemplated in the use of Services;
(iv) ensure that access rights are terminated for Permitted Users when they should no longer have access to the Services (e.g., the individual leaves your employ);
(v) provide necessary information and assistance to Mingle for any integration required between the Services and your EHR or other information technology systems;
(vi) promptly notify Mingle in writing of any unauthorized use of the Services and Documentation (as defined below) that comes to your attention, cooperate and assist with any actions taken by Mingle to prevent or terminate unauthorized use of the Services and Documentation, and use reasonable efforts to prevent any such unauthorized use of the Services and Documentation;
(vii) you will designate in writing, where requested, one individual and one back- up individual to represent you in business dealings with Mingle and to be responsible for all communication with Mingle, and if the primary or back-up contact changes, you will notify Mingle in writing by mail or email, or by making updates to the appropriate online client registration entries; and
(viii) perform other responsibilities assigned to you under any Order Forms or Statements of Work.
4. Mingle IP.
(a) Ownership of Mingle IP. Mingle and its licensors will own and retain all rights, title, and interest in and to the Services and all materials therein, including software, Java applets, images, text, graphics, designs, illustrations, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information, data, other files and the arrangement thereof, content belonging to other users, Documentation and all work product and deliverables under each Order Form and Statement of Work (collectively, “Mingle IP”). “Documentation” means any user documentation, on any media, provided by Mingle for use with the Services.
(b) Limited License. During the term of this Agreement, and as applicable to the Services you purchase, you are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Software Platforms and Documentation for your internal business purposes, subject to the terms and conditions of this Agreement. For the avoidance of doubt, you must comply with any scope restrictions or limitations for Software Platforms associated with the Services you purchase. You agree that you will not (i) copy, modify, publish, adapt, create derivative works of, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Mingle IP or the Software Platforms or cause others to do so; (ii) remove, alter, cover or obfuscate any copyright notice or other proprietary rights notice placed on or displayed by the Software Platforms and Documentation, whether in machine language or human readable form; (iii) “frame” or “mirror” any part of the Software Platforms, without Mingle’s prior written authorization; (iv) use meta tags or code or other devices containing any reference to Mingle or the Software Platforms in order to direct any person to any other website for any purpose; (v) resell or make any commercial use of the Software Platforms or Documentation other than as intended; (vi) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Software Platforms or Documentation; (vii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Software Platforms; (viii) use any automated methods or processes to create user accounts or access the Services, (ix) circumvent or disable any security or other technological features or measures of the Software Platforms, or attempt to probe, scan or test the vulnerability of a network and or system or to breach any security measures; or (x) use the Mingle IP or the Services other than for their intended purpose. Any use of the Services or Mingle IP other than as expressly authorized herein, without the prior written consent of Mingle, is strictly prohibited and will violate and terminate the license granted herein. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. Mingle reserves all rights not expressly granted herein in the Services and the Mingle IP. This license is revocable at any time.
5. Communicating with you Electronically—Permission to Text.
(a) You agree and consent to our communicating information, notices, messages, service alerts, announcements, agreements, privacy notices, disclosures or other communications (“Electronic Communications”) associated with the Services to you and Permitted Users electronically by posting such Electronic Communications in your Mingle Account, e-mailing such Electronic Communications to the e-mail address on file or by sending such Electronic Communications to you and Permitted Users via SMS text message to the mobile number on file in the relevant Mingle Account.
(c) Electronic Communications are deemed to be received – at the latest – when they are sent to you or Permitted Users at the last email address or wireless phone number provided us. You will ensure that your and Permitted Users’ email address and wireless phone number will be kept up to date in order that we may communicate with you and Permitted Users.
6. Feedback. Mingle welcomes and encourages feedback, comments, and suggestions for improvements to the Services and Documentation (“Feedback”). By providing Feedback, you agree that all Feedback becomes Mingle’s exclusive property. Additionally, you irrevocably assign to Mingle your complete rights, titles, and interests in and to Feedback, including any and all intellectual property rights contained therein. Moreover, at Mingle’s request and expense, you agree to execute documents and take such further action as Mingle may reasonably request to assist it in acquiring, perfecting, or maintaining subject intellectual property rights.
7. Trademarks. “Mingle”, Mingle’s logos and any other trade name or slogan used in connection with the Services are trademarks or service marks of Mingle, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Mingle or the applicable trademark holder. In addition, the look and feel of the Software Platforms, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Mingle and may not be copied, imitated or used, in whole or in part, without Mingle’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in connection with the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Mingle.
8. Compliance with Laws. You agree that you will use the Services and provide, access and use Client Content in compliance with all applicable local, state, national and international laws, rules and regulations (including HIPAA). You will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Services to transmit or otherwise distribute any content that you do not have the necessary rights in or that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Mingle; (b) interfere or attempt to interfere with the proper performance of the Services or prevent others from using the Services; or (c) use the Services for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Mingle’s sole discretion, and may subject you to state and federal penalties and other legal consequences. Mingle reserves the right, but will have no obligation, to review the Client Content and use of the Services, including in relation to Mingle user complaints or disputes, in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
9. Confidential Information.
(a) Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, security practices and policies, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the effective date of this Agreement. Confidential Information includes any portion of this Agreement and its terms that is not publicly available on our website. “Confidential Information” excludes information that (i) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (ii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; or (iii) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality.
(b) Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such information as Confidential Information under the terms of this Agreement. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
(c) Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. With respect to your Client Content, we will make your Client Content available for download at any time upon your request during the term of this Agreement and for a period of 90 days following expiration or termination of this Agreement. Following such 90-day period, we may purge your Client Content from our systems. The obligations in this Section 9 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 9 for as long as such information remains a trade secret under applicable law.
(e) Business Associate Agreement. Also, to the extent we perform Business Associate functions for you and there is not otherwise a Business Associate Agreement between Mingle and you, our rights and obligations with respect to Protected Health Information (or “PHI”) that you provide to us (as the foregoing terms are defined in Health Information Portability and Accountability Act of 1996) are set forth herein and in the Business Associate Terms. By using the Services, you agree to be bound by the terms of our Business Associate Terms. In the event of a conflict between this Agreement and the Business Associate Terms regarding use and handling of PHI, the Business Associate Terms will control.
10. Representations and Warranties. Without limiting any other representation, warranty or covenant of either party herein, you hereby represent and warrant to Mingle that: (a) you have the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of yours; and (c) you have obtained and will maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform your obligations hereunder in compliance with all applicable laws, rules and regulations. Further, you hereby represent and warrant to Mingle that (i) you will remain fully responsible for all access to and use of the Services through your username, password and any other authentication credentials, including access to any features the use of which results in monetary charges to you, whether or not you have knowledge of or authorize such access and use; (ii) you have the right to grant to Mingle and its suppliers the rights granted herein and that none of the Client Content contains any material that infringes upon any third-party right, including rights arising from contracts between you and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or which slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; (iii) none of the Client Content provided by you hereunder contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Software Platforms or other Services, or intercept or expropriate any system data or personal information from the Software Platforms; (iv) you have provided and will continue to provide Mingle with accurate and complete Registration Information and other information, and will inform Mingle in writing of any changes or updates to such information during the term of this Agreement; (v) you will review all Client Content and ensure that it is true, correct and accurate and not misleading, and that such Client Content complies with this Agreement; and (vi) you will immediately notify Mingle in writing if you learn that any of your Client Content is not true, correct or accurate and provide the true, correct and accurate information to Mingle.
11. Term; Termination. The term of this Agreement will continue until terminated. Without limiting Mingle’s rights to terminate as set forth elsewhere in this Agreement, Mingle may terminate this Agreement immediately upon written notice to you for breach of Section 3, 4, 8, 9 or 10. In the event of a material breach by either party of any other provision of this Agreement, the non-breaching party may terminate this Agreement upon 5 business days’ prior written notice without liability to the other party. Either party may terminate this Agreement for convenience at any time upon at least 10 business days’ prior written notice to the other party. Upon termination of this Agreement, you will be responsible for paying (a) fees payable for the remainder of any ongoing Services Terms, unless this Agreement was terminated by you for Mingle’s uncured material breach or was terminated by Mingle for convenience, and (b) any other amount due under this Agreement through the effective date of termination, and you authorize Mingle to charge your Payment Method immediately upon termination for the full amount payable hereunder. No refunds of fees paid under this Agreement will be provided. Termination of this Agreement will not relieve either party of any obligations or liabilities that have accrued prior to the termination date (including obligations to pay fees, taxes, interest and collection costs) and is without prejudice to any other rights and remedies either party may have. In addition, each party’s obligations as provided in the following sections of this Agreement will survive termination: 2, 3, 4(a), 6-9, 11-15 and 16 (excluding (a)).
(a) Your Indemnity. You agree to defend, indemnify and hold Mingle and its affiliates and each of their respective directors, officers, employees, agents, contractors, suppliers, licensors and representatives, and affiliates of each of the foregoing, harmless from and against any losses, costs, liabilities, claims, demands, damages and expenses, including reasonable attorneys’ fees, arising out of or related to (a) your violation of any term of this Agreement, (b) your unauthorized use of and access to the Services, (c) your violation of any rights of a third party, including any right of privacy or intellectual property rights; (d) any other party’s access and use of the Services with your username, password or any other authentication credentials; (e) your violation of any applicable laws, rules or regulations, (f) Client Content, or (h) your gross negligence or willful misconduct. The indemnified party agrees to give you prompt written notice of any claim and to reasonably cooperate with your defense of such claim, at your expense.
(b) Mingle Indemnity. Mingle agrees to defend, indemnify and hold you and your affiliated companies harmless from and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses or settlement related thereto arising from allegations that the Software Platforms or any portion thereof infringe(s) or otherwise violate(s) such third-party’s U.S. patents, trademarks or copyrights. You must give Mingle prompt written notice of any claim and reasonably cooperate with Mingle’s defense of such claim, at Mingle’s expense. If a claim under this paragraph is made or likely to be made, Mingle may in its sole discretion: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the Software Platforms, (ii) modify the infringing component(s) to make them non-infringing, or (iii) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately without liability.
13. Disclaimers; No Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MINGLE AND ITS AFFILIATES AND SUBSIDIARIES MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY MATTER, INCLUDING THE SERVICES. MINGLE expressly disclaims all representations, warranties, guarantees and conditions, including any implied warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment or non-infringement or those arising out a course of dealing or usage of trade. FURTHER, MINGLE DOES NOT WARRANT THE RESULTS OR PROVISION OR USE OF THE SERVICES, INCLUDING THAT YOU WILL RECEIVE ANY BUSINESS BENEFITS AS A RESULT OF THE SERVICES (including receipt of incentive OR OTHER payments FROM CMS or absolving you of CMS payment adjustments), AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. MINGLE MAKES NO WARRANTY, EXPRESS OR IMPLIED, RELATED TO THE AVAILABILITY, UPTIME, OR QUALITY OF THE SERVICES, AND MINGLE MAY FREELY ADD, MODIFY, UPDATE, REMOVE, AND REPLACE ANY SERVICES AS WELL AS DELETE ANY CLIENT CONTENT.
14. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL MINGLE, ITS AFFILIATES, AND ITS SUBSIDIARIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFIT OR REVENUE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS, THAT RESULTS FROM THIS AGREEMENT OR THE PROVISION OR USE OR THE INABILITY TO PROVIDE OR USE THE SERVICES, EVEN IF MINGLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, MINGLE AND ITS AFFILIATES AND SUBSIDIARIES WILL NOT BE LIABLE TO YOU FOR ANY CHANGES WHICH MINGLE MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES OR COMPONENTS OF THE SERVICES); (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CLIENT CONTENT OR OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (C) YOUR FAILURE TO PROVIDE MINGLE WITH ACCURATE REGISTRATION INFORMATION OR OTHER INFORMATION; AND (D) ANY LIABILITY RESULTING FROM YOUR FAILURE TO KEEP YOUR username, PASSWORD OR any other authentication credentials or ACCOUNT DETAILS SECURE AND CONFIDENTIAL. EXCEPT FOR AMOUNTS EXPRESSLY DUE AND OWING HEREUNDER, IN NO EVENT WILL MINGLE AND ITS AFFILIATES AND SUBSIDIARIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY MINGLE FROM YOU DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU WILL NOT COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST MINGLE MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT MINGLE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ONLY THE LIMITATIONS WHICH ARE LAWFUL WILL APPLY TO YOU AND MINGLE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
(a) Governing Law. You agree that (i) the Services shall be deemed solely based in Utah, and (ii) the Services shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Utah. This Agreement shall be governed by the laws of the State of Utah, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the state or federal courts in and for the city of Salt Lake City, Utah, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Arbitration provision below. You agree that Salt Lake City, Utah is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
(c) Class Action/Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND MINGLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
16. Updates to this Agreement; Miscellaneous; Questions.
(a) Updates to this Agreement. From time to time, Mingle may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its sole discretion. If Mingle Updates this Agreement, it will make the Updated Agreement available here, and the Updated Agreement will indicate the date of the latest revision. Mingle encourages you to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter your rights or obligations hereunder, Mingle will make reasonable efforts to notify you of the Updates. For example, Mingle may send a message to your email address that is currently associated with your Mingle Account or generate a pop-up or similar notification when you access your Mingle Account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are made available through the Services, except that (i) disputes between you and Mingle will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if you do not agree with any changes to this Agreement, you may terminate this Agreement as set forth above. Your continued access to or use of the Services after an Updated Agreement has become effective indicates that you have read, understood and agreed to the current version of this Agreement.
(b) Audit Rights. Upon 15 days’ notice, Mingle may audit your use of the Services to ensure compliance with license, payment and other terms of this Agreement. You will cooperate with Mingle’s auditors and provide reasonable assistance and access to information. If the audit uncovers underpaid fees owed to Mingle, you will pay those fees and if the audit uncovers a material underpayment of fees or material breach, you will pay Mingle’s costs incurred in conducting the audit within 30 days of written notification of the amounts owed. All information gathered as part of the audit will be treated as your Confidential Information.
(c) Access to Records. If you purchase Services under this Agreement for $10,000.00 or more over a 12-month period, then upon the written request of the Secretary of Health and Human Services, the Comptroller General or any of their duly authorized representatives, Mingle shall make available those contracts, books, documents and records necessary to verify the nature and extent of the costs of providing services under this Agreement. Such inspection shall be available for up to four (4) years after the rendering of such Services. If (i) you purchase Services under this Agreement for $10,000.00 or more over a 12-month period, and (ii) Mingle carries out any of the duties of this Agreement through a subcontract with a value of $10,000.00 or more over a 12-month period with a related individual or organization, Mingle agrees to include this requirement in any such subcontract. This Section is included pursuant to and is governed by the requirements of 42 U.S.C. Section 1395x(v)(1) and the regulations thereto. No attorney-client, accountant-client, or other legal privilege will be deemed to have been waived by you or Mingle by virtue of this Agreement.
(d) U.S. Government Users. If you are a U.S. Government end user, the Software Platforms and Documentation are Commercial Items, as that term is defined at 48 C.F.R. §2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the U.S. Government end user (a) only as Commercial Items, (b) not as military or defense articles as defined in the International Traffic in Arms Regulations, 22 C.F.R Parts 120-130 or Export Administration Regulations, 15 C.F.R. Parts 700-799), and (c) with only those rights as are granted to all other end users pursuant to these Terms. Unpublished-rights reserved under the copyright laws of the United States.
(f) Miscellaneous. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Mingle. Mingle may freely assign or transfer this Agreement. Both parties are independent contractors, and neither party is an agent, representative or partner of the other. In this Agreement, “including” means “including without limitation”. Mingle may, in its sole discretion, work with licensors, vendors, contractors and other third parties to fulfill any obligations in this Agreement or to support the Services, and we may change our use of licensors, vendors, contractors and other third parties without notice to you. Any notices under this Agreement will be sent by Mingle to at least one of the addresses provided to Mingle in connection with your registration or updates thereto (or in a separate writing) and will be sent by you to the address for Mingle shown on www.minglehealth.com. Notices will be sent by nationally recognized express delivery service and will deemed given one business day after deposit with such delivery service. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Headings are provided for convenience but do not constitute part of this Agreement.
(g) FTC Disclosure: Mingle makes no representation that it is endorsed by nor affiliated with CMS other than as an approved Qualified Registry and QCDR, as described in Section 3(f) above. Any written and/or oral results and experiences related to use of our Services that are conveyed to you by Mingle may not be typical and will vary by provider. Past performances and experiences by other customers do not guarantee future performances or experiences by you.
(h) Questions. If you have any questions related to this Agreement, please use our Contact Legal form and put “Service Agreement Inquiry” into the subject line of your message.