Terms of Service
Last Updated: January 9, 2018
The following SilverVue Terms of Service (the “Agreement”) will govern your use of the Services, as defined below, and are entered into between SilverVue, Inc. (“SilverVue”, “we”, “us” or “our”), a business located at 8911 South Sandy Parkway, Sandy, UT 84070, and the business you represent (“you” or “your”). 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. SilverVue Services and Set-up.
(a) Services. SilverVue provides a cloud-based platform known as Check™ by SilverVue® for use in medical practices and also offers other services, as further described at www.silvervue.com and other websites where this Agreement is posted (including the websites used to access such services, the “Services”).
(b) Account Setup. When you set up an account (“SilverVue 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 SilverVue Account. If SilverVue believes that the Registration Information you provide is not correct, current, or complete, SilverVue reserves the right to refuse you access to the Services, and to terminate or suspend your SilverVue Account at any time. However, SilverVue has no obligation to verify the accuracy, currency, completeness, or usefulness of any Registration Information that you have provided.
(c) SilverVue 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 SilverVue Account and those of any users you authorize under your SilverVue Account (“Permitted Users”), and you are fully responsible for all activities that occur under your SilverVue Account, including the purchase of any of the Services. You agree (a) to promptly notify SilverVue if you suspect any unauthorized use of your SilverVue Account (including usernames, passwords or any other authentication credentials) or any other breach of security, (b) to ensure that you exit from your SilverVue 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 SilverVue 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 SilverVue is not responsible for any loss or damage arising from the theft or misappropriation of any username, password or other authentication credentials. SilverVue recommends that you use strong passwords for your SilverVue Account, never use the same password on multiple sites or services, and change your password frequently. You are directly responsible to SilverVue 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; Change Orders. Subject to the terms and conditions of this Agreement, SilverVue 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 (SOW). Each Statement of Work will constitute a separate work engagement. All changes to a Statement of Work requested by either party will only be effective upon signing of a mutually agreed change order. If work on a Statement of Work is materially delayed, postponed, or discontinued by you, SilverVue may suspend performance of professional services under such Statement of Work. If there is a conflict between the terms of this Agreement and the terms of a Statement of Work, the terms of this Agreement will control unless the Statement of Work states that a specific provision of this Agreement will be superseded by a specific provision of the 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, SilverVue reserves the right to invoice you for SilverVue’s repair or replacement costs, and you agree to pay any such invoices upon receipt. Upon expiration or termination of this Agreement, or SilverVue’s earlier written request, you will also return to SilverVue all Loaner Devices in the same condition as when delivered to you, ordinary wear and tear excepted. SilverVue reserves the right to invoice you, at SilverVue’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. The fees for the Services are set forth on the SilverVue fees page (“Fees Page”), which is incorporated into and made a part of this Agreement, or on an executed Order Form or Statement of Work between you and SilverVue, 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, or as otherwise described on the Fees Page or on an executed Order Form or Statement of Work between us. You agree to pay SilverVue the fees indicated for the Services plan you select and for the indicated subscription term (“Subscription Term”) and for any other fees set forth on an executed Order Form or Statement of Work between us. Fees for subscription-based Services will be charged to your Payment Method on the day your Services plan selection goes into effect and will cover fees for your Services plan selection for the payment period indicated. Fees for other Services will be charged according to the applicable Fees Page, Order Form or Statement of Work. At the end of the indicated Subscription Term, your selected Services plan will automatically renew for successive renewal Subscription Terms of equal length of the initial Subscription Term and the applicable fees will continue to be charged to your Payment Method on a recurring basis until you change your Services plan selection or terminate this Agreement, and you hereby authorize SilverVue to charge your Payment Method for such recurring charges. The amount of the recurring charge for each renewal Subscription Term will be the then-current fee applicable to the Services plan and subscription term you selected as set forth on the Fees Page or otherwise communicated to you. You acknowledge that the amount of the recurring charge may increase if the applicable fee increases. You may upgrade or downgrade your 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 5 business days prior to the start of your next renewal Subscription Term in order to avoid billing of the next renewal Subscription 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 Subscription Term based on the difference in price between your current plan and the upgraded plan. 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.
(b) Payment Method. SilverVue may, from time to time, offer various payment methods, including payment by credit card, debit card, or direct debit. You authorize SilverVue to charge you for Services through the payment method you select, or provide on an Order Form or Statement of Work, when purchasing the Services (the “Payment Method”) and you agree to make payment using such Payment Method(s). SilverVue 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 SilverVue does not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from SilverVue. Your non-termination or continued use of the Services reaffirms that SilverVue 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 SilverVue as necessary for the processing of all payments that are due to SilverVue. 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. If your payment method fails or your account is past due, SilverVue reserves the right to either suspend or terminate your use of the Services. You agree to submit any disputes regarding any charge to your account in writing to SilverVue within 60 days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. You agree to reimburse us for all collection costs. SilverVue 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. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Services except (a) as expressly set forth in this Agreement, the Fees Page or an executed Order Form or Statement of Work between us; (b) as otherwise required by applicable law; or (c) at our sole and absolute discretion. All prices for Services are subject to change without notice; however, SilverVue 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 SilverVue 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 SilverVue and its suppliers the right to access and use such content under this Agreement. SilverVue will not be responsible for the Client Content. SilverVue 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 Services. SilverVue 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 SilverVue, 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 Services, 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 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 SilverVue 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 eligibility verification, 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 Medicaid eligibility where the patient has requested Medicaid 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 final authority, and neither SilverVue nor our service providers will have any liability for denied payment; and (iii) you will abide by the applicable federal and state laws and regulations regarding confidentiality of information.
(f) CMS Quality Reporting. SilverVue is approved as 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 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;
(iii) you agree (A) that we may import patient population and/or other information that corresponds to each performance measure’s 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;
(iv) upon our request, you will review and certify all data, data classifications and calculations before we submit data to the MIPS Program;
(v) 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 SilverVue has no control over, and will not be liable for, how CMS handles your data;
(vi) by initiating and authorizing submission of data and calculations to the MIPS program, you certify that the data and calculations are true and correct;
(vii) 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;
(viii) you hereby agree to execute, and to require that your participating healthcare providers execute, SilverVue’s verification/consent/waiver form(s) from time-to-time as a condition of participating in the MIPS reporting program;
(ix) You acknowledge that, as a QCDR, SilverVue is required to make certain commitments to CMS and you will cooperate with SilverVue in fulfilling those commitments, including (A) allowing SilverVue 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
(x) you acknowledge and agree that SilverVue does not provide any guarantees that you will avoid CMS penalties or receive bonus 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) Additional Customer Responsibilities. In order for SilverVue 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 SilverVue for any integration required between the Services and your EHR or other information technology systems;
(vi) promptly notify SilverVue 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 SilverVue 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; and
(vii) perform other responsibilities assigned to you under any Statements of Work.
4. SilverVue IP.
(a) Ownership of SilverVue IP. SilverVue 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 Statement of Work (collectively, “SilverVue IP”). “Documentation” means any user documentation, on any media, provided by SilverVue for use with the Services.
(b) Limited License. During the term of this Agreement, you are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Services and Documentation for your internal business purposes, subject to the terms and conditions of this Agreement. 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 SilverVue IP or the Services or cause others to do so; (ii) “frame” or “mirror” any part of the Services, without SilverVue’s prior written authorization; (iii) use meta tags or code or other devices containing any reference to SilverVue or the Services in order to direct any person to any other website for any purpose; (iv) resell or make any commercial use of the Services or Documentation other than as intended; (v) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Services or Documentation; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (vii) use any automated methods or processes to create user accounts or access the Services, (viii) circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach any security measures; or (ix) use the SilverVue IP or the Services other than for their intended purpose. Any use of the Services or SilverVue IP other than as expressly authorized herein, without the prior written consent of SilverVue, 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. SilverVue reserves all rights not expressly granted herein in the Services and the SilverVue 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 SilverVue 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 SilverVue 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. SilverVue welcomes and encourages feedback, comments, and suggestions for improvements to the Services and Documentation (“Feedback”). By providing Feedback, you agree that all Feedback becomes SilverVue’s exclusive property. Additionally, you irrevocably assign to SilverVue your complete rights, titles, and interests in and to Feedback, including any and all intellectual property rights contained therein. Moreover, at SilverVue’s request and expense, you agree to execute documents and take such further action as SilverVue may reasonably request to assist it in acquiring, perfecting, or maintaining subject intellectual property rights.
7. Trademarks. “SilverVue”, SilverVue’s logos and any other trade name or slogan contained in the Services are trademarks or service marks of SilverVue, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of SilverVue or the applicable trademark holder. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of SilverVue and may not be copied, imitated or used, in whole or in part, without SilverVue’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in 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 SilverVue.
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 SilverVue; (b) interfere or attempt to interfere with the proper working 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 SilverVue’s sole discretion, and may subject you to state and federal penalties and other legal consequences. SilverVue reserves the right, but will have no obligation, to review the Client Content and use of the Services, including in relation to SilverVue 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 SilverVue 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 SilverVue 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 SilverVue 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 SilverVue 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 Services, or intercept or expropriate any system data or personal information from the Services; (iv) you have provided and will continue to provide SilverVue with accurate and complete Registration Information and other information, and will inform SilverVue 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 SilverVue 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 SilverVue.
11. Term; Termination. The term of this Agreement will continue until terminated. In the event of a material breach by either party, 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 Subscription Terms, unless this Agreement was terminated by you for SilverVue’s uncured material breach or by SilverVue for convenience, and (b) any other amount due under this Agreement through the effective date of termination, and you authorize SilverVue 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). 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 SilverVue 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) SilverVue Indemnity. SilverVue 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 Services or any portion thereof infringe(s) or otherwise violate(s) such third-party’s U.S. patents, trademarks or copyrights. You must give SilverVue prompt written notice of any claim and reasonably cooperate with SilverVue’s defense of such claim, at SilverVue’s expense. If a claim under this paragraph is made or likely to be made, SilverVue may in its sole discretion: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the Services, (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, SILVERVUE AND ITS AFFILIATES AND SUBSIDIARIES MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY MATTER, INCLUDING THE SERVICES. SILVERVUE 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, SILVERVUE DOES NOT WARRANT THE RESULTS OR USE OF THE SERVICES, INCLUDING THAT YOU WILL RECEIVE ANY BUSINESS BENEFITS AS A RESULT OF USE OF THE SERVICES, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. SILVERVUE MAKES NO WARRANTY, EXPRESS OR IMPLIED, RELATED TO THE AVAILABILITY, UPTIME, OR QUALITY OF THE SERVICES, AND SILVERVUE 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 SILVERVUE, 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 USE OR THE INABILITY TO USE THE SERVICES, EVEN IF SILVERVUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, SILVERVUE AND ITS AFFILIATES AND SUBSIDIARIES WILL NOT BE LIABLE TO YOU FOR ANY CHANGES WHICH SILVERVUE MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN 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 SILVERVUE 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 SILVERVUE 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 SILVERVUE 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 SILVERVUE 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 SILVERVUE’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 SILVERVUE’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 SILVERVUE 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, SilverVue 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 SilverVue Updates this Agreement, it will make the Updated Agreement available here, and the Updated Agreement will indicate the date of the latest revision. SilverVue encourages you to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter your rights or obligations hereunder, SilverVue will make reasonable efforts to notify you of the Updates. For example, SilverVue may send a message to your email address that is currently associated with your SilverVue Account or generate a pop-up or similar notification when you access your SilverVue 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 SilverVue 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, SilverVue may audit your use of the Services to ensure compliance with license, payment and other terms of this Agreement. You will cooperate with SilverVue’s auditors and provide reasonable assistance and access to information. If the audit uncovers underpaid fees owed to SilverVue, you will pay those fees and if the audit uncovers a material underpayment of fees or material breach, you will pay SilverVue’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, SilverVue 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) SilverVue 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, SilverVue 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 SilverVue by virtue of this Agreement.
(d) U.S. Government Users. If you are a U.S. Government end user, the Services 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) FTC Disclosure: SilverVue makes no representation that it is endorsed by nor affiliated with CMS other than as an approved 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 SilverVue 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.
(g) Questions. If you have any questions related to this Agreement, please use our Contact Legal form and put “Terms of Service Inquiry” into the subject line of your message.