Preferred Provider Terms & Conditions
Updated: February 5, 2019
Thank you for your interest in joining the RK360 Preferred Provider Program! The RK360 Preferred Provider Program (the “Program”) gives providers a new way to easily share health records in a cost effective and patient-friendly way using the RedKangaroo Interoperability Platform (the “Service”). In addition, preferred providers will be featured by RK360 as Program participants, making it even easier for you to show your patients you care.
Your participation in the Program is subject to the following terms and conditions (the “Agreement”). These terms are between providers and other parties that sign up to become RK360 Preferred Providers (“Preferred Providers”, “you”, “your”) and Prosocial Applications, Inc. (“Prosocial,” “we” or “us” or “our”), together with its subsidiaries including Smart Health Records, Inc. (“SHARE”).
PLEASE READ THE FOLLOWING TERMS, AS YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO BECOME A PREFERRED PROVIDER, AND THIS AGREEMENT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND PROSOCIAL. Prosocial reserves the right to update and change the Agreement at any time by posting updates and changes at: www.redkangaroo.us/preferredprovideragreement. Any changes or modification will be effective immediately upon posting, except as set otherwise forth herein.
When you become a Preferred Provider, Prosocial will offer the following benefits for the duration of the Term (the “Benefits”):
As a condition of your participation in the Program and eligibility to receive the Benefits described above, you agree to (the “Conditions”):
Fees & Payment
Current fees for participation as a Preferred Provider are available here (the “Fees”). Prosocial will bill or invoice the Provider for the Fees on or about the Effective Date. Provider shall pay in full all amounts of all bills/invoices, except any amounts subject to a good faith dispute, via credit card or ACH within 30 days of the date of the receipt of the bill/invoice. Late payments will accrue interest at the lesser of 1.5% per month and the highest rate allowed by applicable law. All Fees paid to Prosocial are non-refundable except as expressly provided in this Agreement.
Prosocial reserves the right to modify the Fees and/or the payment terms, with each such change to be effective upon each renewal term or the effective date of any revised terms, respectively. In the event of any disputes over Fees, Prosocial’s determination will be final and binding. Prosocial reserves the rights to add, modify or remove Benefits, in its sole discretion, provided that Prosocial may not materially reduce the Benefits provided to Provider during the term without granting provider a right to terminate this agreement and receive a pro-rata refund of any prepaid Fees. Prosocial reserves the right to charge for additional Benefits or offer new Benefits not available to all Providers.
Term & Termination
The term of this Agreement begins on the date you acknowledge this Agreement (the “Effective Date”) and continues for 12 months from the date of Provider’s payment of the Fees (the “Initial Term”) and will automatically renew for additional consecutive one (1) year terms (each, a “Renewal Term”), unless either Party provides to the other Party a written notice, at least ninety (30) days prior to the expiration of the then-current term, of its intention not to renew this Agreement. The Initial Term and Renewal Term(s), if any, shall be referred to as the “Term”.
Either Party may terminate this Agreement in the event of a material breach of this Agreement by the other Party which is not cured within thirty (30) days after written notice thereof by the non-breaching Party specifying such breach in reasonable detail. In the event either Party becomes bankrupt, or insolvent, or has a receiving order made against it, or has a receiver appointed to continue its operations, or takes the benefit of any statute for the time being in force relating to bankrupt or insolvent debtors or the orderly payment of debts, the other Party may terminate this Agreement effective upon notice.
Immediately upon termination or expiration of this Agreement, each Party’s obligations (except Provider’s obligation to pay any outstanding Fees) and all licenses granted pursuant to this Agreement will cease and terminate, and each Party shall remove from its services, websites and marketing literature all relevant links, trademarks and other references to the other Party.
Use of Intellectual Property
Prosocial hereby grants to Provider a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display certain registered, unregistered and other trademarks or service marks of Prosocial (the “Prosocial Trademarks”) for the Term solely as reasonable or appropriate in connection with Provider’s advertising and description of the Service and the Benefits to its patients (including their guardians and representatives), employees, contractors and other personnel. Provider acknowledges and agrees that: (a) it will use Prosocial’s Trademarks only as permitted hereunder; (b) it will use the Prosocial Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Prosocial in writing from time to time; (c) the Prosocial Trademarks are and shall remain the sole property of Prosocial; (d) nothing in this Agreement shall confer in Provider any right of ownership in the Prosocial Trademarks and all use thereof by Provider shall inure to the benefit of Prosocial; and (e) Provider shall not, now or in the future, apply for or contest the validity of any Prosocial Trademarks; and (f) Provider shall not, now or in the future, apply for or use any term or mark confusingly similar to any Prosocial Trademarks.
As between Provider and Prosocial, the Prosocial Trademarks, the Service and all software, documentation, forms, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Prosocial in connection with the Service, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto shall be and remain the sole and exclusive property of Prosocial.
REPRESENTATIONS AND WARRANTIES
Each Party represents, warrants, and covenants to the other Party that: (a) it has the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation of it when executed and delivered; and (d) any and all activities it undertakes in connection with this Agreement will be performed in compliance in all material respects with applicable laws, rules and regulations.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BENEFITS AND SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, AND NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, AND SECURE OR OPERATE WITHOUT ERROR.
Provider shall, at its expense (including payment of reasonable outside attorneys’ fees), defend and/or settle any claim, action or allegation brought against Customer to the extent that it is based upon (i) Provider’s violation of applicable laws, rules and regulations; (ii) Provider’s (or its employees’ or agents’) negligence, recklessness, or willful misconduct; (iii) Provider’s breach of its representations, warranties, covenants, or obligations in this Agreement.
Limitation of Liability
IN NO EVENT WILL PROSOCIAL BE LIABLE TO PROVIDER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, HOWEVER CAUSED, AND WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY THEORY OF LIABILITY, SUFFERED BY PROVIDER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS UNDER OR ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE HEREUNDER, AND WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT TO THE EXTENT SUCH AMOUNTS CANNOT BE EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT SHALL PROSOCIAL’S LIABILITY HEREUNDER EXCEED ONE HUNDRED DOLLARS. THE PARTIES HAVE AGREED THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent via confirmed facsimile, electronic mail or delivered by recognized overnight courier service to Prosocial at the address below, and to Provider at the address provided at the time of subscription or for invoicing purposes. Notice shall be deemed effective upon receipt when hand delivered, within five (5) business days of mailing and on the business day following the day of facsimile transmission or delivery by electronic mail. Either Party may from time to time change the individual designated to receive notices or its address by giving the other Party notice of the change in accordance with this Paragraph.
1905 15th St. #4585
Boulder CO 80302-4585
Unless otherwise provided herein, any claim or controversy arising out of or relating to these Terms or its breach shall, upon the request of any party involved, be submitted to and settled by a sole arbitrator in Denver, Colorado, in accordance with the rules of the American Arbitration Association. The decision made pursuant to arbitration shall be rendered within sixty (60) days of submission to arbitration and shall be binding and conclusive on all parties involved; and judgment upon that decision may be entered in the highest court of any forum, federal or state, having jurisdiction. In the event that any arbitration proceeding is brought forth to enforce or interpret these Terms, the prevailing party shall be entitled to collect from the other party its expenses and reasonable arbitration fees exclusive of attorney fees. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Provider may not assign any of its rights or obligations hereunder without the prior express written consent of an authorized representative of Prosocial, and any purported assignment without such prior written consent shall be null and void and of no force and effect. Notwithstanding the foregoing, either Party may assign this Agreement to any parent, subsidiary or affiliate entity or as part of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of such Party’s stock or assets. Any attempted assignment not authorized under this section shall be void.
Each Party is acting in performance of this Agreement as an independent contractor. Nothing in this Agreement shall create a joint venture, agency, partnership or fiduciary relationship between them. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, shall have the power or authority to bind or obligate the other Party.
If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct.
A waiver of any provision of this Agreement shall only be valid if provided in writing and shall only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall continue in full force and effect.
This Agreement contains the full and complete understanding among the Parties hereto, supersedes all prior agreements and understandings whether written or oral pertaining hereto and cannot be modified except by a written instrument signed by each Party hereto. Each Party shall execute any and all further documents which the other Party may deem necessary and proper to carry out the purposes of this Agreement and enforce its rights hereunder.
The descriptive headings of this Agreement are inserted for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement.