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Terms

Terms

1. Microwize Technology Inc. DBA Medisoft 24X7 using the product name “Medisoft Cloud”

Definitions and interpretations can be found at http://www.dataprotection.com/VL_Software/VL_service_agreement_definitions.html. This agreement uses the definitions and interpretations dated 11/10/2009.
2. MICROWIZE TECHNOLOGY, INC. SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.

Microwize Technology, Inc. does not make any independent representations or warranties with respect to any Customer Equipment. Any third party warranties are the exclusive remedies of Customer with respect to such Equipment.
If, in Microwize Technology, Inc.’ sole discretion, Microwize Technology, Inc. judges that it is reasonable to do so for the purposes of repair, maintenance or improvement of the Equipment, Software and/or Service or any part thereof, Microwize Technology, Inc. reserves the right to suspend provision of the Service. Microwize Technology, Inc. reserves the right to limit Customer bandwidth utilization.
Microwize Technology, Inc. reserves the right to suspend provision of the Service or any part thereof for the purpose of carrying out or implementing such repair, maintenance or improvement, provided that in the event of such suspension Microwize Technology, Inc. will use its reasonable endeavors to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused.
2.4 Microwize Technology, Inc. may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body.

3.Customer will be responsible for securely storing, managing and deploying when required any encryption key or password which are generated to protect Customer data. If Customer loses the encryption keys or passwords, Microwize Technology, Inc. Medisoft 24X7 (Medisoft Cloud) service includes the data backup for the clients.

3.1Customer must allow persons authorized by Microwize Technology, Inc. to enter Customer’s premises at reasonable times for the purposes of maintenance, improving, upgrading.

3.2Customer will not, and will not permit any third party, to (a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, (b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (c) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or (d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software, source code or underlying proprietary information except as may be permitted by law and which rights cannot be excluded.

3.3 Customer is solely responsible for verification of the accuracy of the data that resides with Microwize Technology, Inc. under the client Software and that the service is accurately installed and the appropriate data is sent offsite. For the purposes of this Agreement Microwize Technology, Inc. will exclude .jpg, .mpg, .tif, .wav, .m4a, .wma, .mp4, .avi and .mp3 within the service software template.
4.1All charges for the Service and the other services are exclusive of taxes, which, if it is applicable, will be added to Customer’s invoice.

4.2 If Customer disputes charges, Customer must notify Microwize Technology, Inc. in writing of the dispute within thirty (30) days of the date on the affected bill, or else waive the dispute.

4.3Customer will be responsible for reimbursing Microwize Technology, Inc. for all costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments.

4.4Customer requests to delete data or accounts must be provided in writing to Microwize Technology, Inc.. No requests for cancellation or deletion will be completed without written notice subject to Section 13 of this agreement.

5.In the event that Customer or Microwize Technology, Inc. is in breach of the Agreement and such a breach is not remedied within fourteen (14) days of receipt of written notice from Microwize Technology, Inc. requiring such breach to be remedied, Microwize Technology, Inc. or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or Microwize Technology, Inc. (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to Section 5.1.

5.1Microwize Technology, Inc. shall be entitled, without prejudice to its other rights, to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer if Customer is in breach of this agreement or Customer fails to pay any sum due under the Agreement within the period specified in the Agreement.

5.2Upon the termination of the Agreement, without prejudice to any other rights Microwize Technology, Inc. may have, Customer shall:

5.2.1within fifteen (15) days of the date of termination, deliver up to Microwize Technology, Inc. and forthwith remove and/or destroy all components of the Service Provider Technology, any Confidential Information of Microwize Technology, Inc. and any materials bearing Microwize Technology, Inc.’s trade-marks from any storage media or hard copies remaining in Customer’s control or possession;

5.2.2provide an officer’s certificate attesting to such delivery, erasure and/or destruction as is satisfactory to Microwize Technology, Inc., acting reasonably;

5.2.3remit all fees payable for services due prior to the date of such termination;

5.2.4remit to Microwize Technology, Inc. all such costs and fees owing to Microwize Technology, Inc. including those related to the permanent or temporary winding down of any services provided by Microwize Technology, Inc.

5.3The provisions of this Terms & Conditions of Service will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.

6.Customer acknowledges and agrees that all proprietary right, title and interest in and to the Service Provider Technology and the Service Provider Software, including all intellectual property rights therein, are owned by Microwize Technology, Inc. or its licensors, respectively. Customer shall have no right to sublicense or modify any Service Provider Technology.

6.1During the term of the Agreement Microwize Technology, Inc. grants Customer a non-exclusive, non-transferable limited license to use the Software solely for the purpose of using the Service and for no other purpose.

6.2 Customer acknowledges that, pursuant to this Agreement, it is given a non-exclusive, nontransferable, royalty-free right to use, during the term of the End-User License Agreement, any Service Provider Software or Service Provider Technology incorporated solely for the purpose of using the Service and not for providing services to any third party. At no time and under no circumstances does Customer acquire an ownership interest in the Product, Service Provider Software or Service Provider Technology.

6.3Customer further acknowledges and agrees that: (i) it is expressly prohibited from translating, adapting, modifying, decompiling, reverse engineering, creating derivative works from, disassembling, unlocking, copying or recreating any component of the Service Provider Software under the terms of this Agreement or the End-User License Agreement; (ii) Microwize Technology, Inc. shall have all right, title, interest in and to all copies, derivative works, translations, adaptations or modifications of the Service Provider Technology or the Service Provider Software howsoever made by Customer; and (iii) any proceeds derived from the activities described above, whether or not made by Customer in compliance with this Agreement or the End-User License Agreement, shall accrue to Microwize Technology, Inc..

7.The liability of Microwize Technology, Inc. to Customer or Customer’s employees, agents, subcontractors, customers or any other person under or in connection with the Agreement shall be limited by the provisions of these terms and, in particular, Section 8.

7.1Except for death or personal injury resulting from the negligence of Microwize Technology, Inc. or its employees Microwize Technology, Inc.’ total liability to the Customer under or in connection with the Agreement (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Monthly Charges for the time being payable for 12 months.

7.2Notwithstanding any other provision of the Agreement, in no circumstance shall Microwize Technology, Inc. be liable to Customer under or in connection with the Agreement or otherwise for:

7.2.1any loss or corruption of data (whether temporary or permanent);

7.2.2indirect, special, consequential or incidental damages, including, without limitation, loss of profits or revenue, loss of goodwill, business interruption, loss of anticipated savings, loss of data, cost of capital, however caused, even if such damages were foreseeable and the parties have been advised of the possibility of such damages; or

7.2.3inability to restore data due to the loss of Customer’s encryption keys.

7.3Except as expressly provided in this agreement, does Microwize Technology, Inc. make any express or implied representations, warranties or conditions of any kind, including but not limited to implied or statutory warranties or conditions of merchantability or fitness for a particular purpose.

8.Customer shall indemnify Microwize Technology, Inc. as required, on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which Microwize Technology, Inc. incurs or suffers as a result of a breach of this Terms & Conditions of Service.

8.1Under no circumstances will Microwize Technology, Inc. be liable for data that was never sent to the data vault by Customer. Customer is advised to review backup sets to ensure that the desired files have been transmitted.

9.0.Microwize Technology, Inc. does not make any independent representations or warranties with products provided by third parties. Any third party warranties are the exclusive remedies of Customer with respect to such products.

10.Each party agrees to, 1. keep confidential all the other party’s Confidential Information (whether written or oral) which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance or during the term of, the Agreement; 2. not to disclose the other party’s Confidential Information in whole or in part to any third party without the disclosing party’s written consent, save to those of its employees, agents and contractors involved in the implementation of this Agreement and who have a need to know the same and are bound to keep if confidential;

11.The failure by either party to exercise any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.

12.Additionally, Customer acknowledges that Microwize Technology, Inc. shall be permitted to assign the Agreement to any successor in title or other entity into, by or with which the business or assets of Microwize Technology, Inc. to which the Agreement relates may be merged, acquired, consolidated or reorganized, or any entity which may purchase all or substantially all of such business or assets. The Agreement shall be binding upon and shall endure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.Customer shall send Microwize Technology, Inc. written notice or other document required by or in connection with the Agreement to the Microwize Technology, Inc. address listed on the Microwize Technology, Inc. invoice.

14.Microwize Technology, Inc. shall not be liable for any breach of the Agreement caused by matters beyond Microwize Technology, Inc.’ reasonable control, including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving Microwize Technology, Inc.’ employees), weather of exceptional severity or acts of local or central Government or other authorities or regulatory bodies.

15.State law issues concerning the construction, interpretation and performance of these terms and conditions shall be governed by the substantive laws of the State of New Jersey, excluding its choice of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
The services you are requesting will be performed under the following terms and conditions. This is the complete agreement between the Client (“client”, “you”) and Microwize Technology, Inc. (“Microwize”).

Definitions:

Hardware – All computers, servers, printers, scanners, modems, network equipment and other computer peripherals.

Software – All computer applications and utilities running on a computer locally or remotely.

Media – Computer hard disks, CDs, tapes, flash drives, and other computer storage methods.

Server – A computer that holds any application data.

Electronic Services – Any service relating to electronic medical claims submission, eligibility verification, claims management, claims status, etc.

All Sales Are Final: Due to the nature of products and services offered by Microwize, no returns, exchanges or refunds are available. Microwize makes no guarantees or warranties as to the feasibility of any product for a specific application. Please evaluate the software before your purchase by reading product details and downloading our trial and self-running demos at www.microwize.com

Client Information: Client shall maintain records of all hardware and software manuals, disks, certificates, serial numbers, passwords and any other materials provided by the manufacturer in order to use, register or upgrade a given hardware or software product.

System Requirements: It is the client’s responsibility to make sure the servers, workstations, printers and other hardware are compliant with the software versions being purchased. Newer versions of software may require hardware upgrades or replacement. The system requirements may be obtained from a Microwize representative or at our website at:

Medisoft System Requirements: http://www.microwize.com/medisoft/system-requirements/

Lytec System Requirements: http://www.microwize.com/lytec/system-requirements/

Backup and Data Protection: Due to the volatility of computers, disks, electrical power and other natural events, data corruption, damage or loss may occur. Therefore, the client agrees that they will maintain a current backup of all programs and data. Microwize recommends a daily backup of all critical data. Client will ensure that the backup method provides a reliable backup and will periodically test these backups and the media. Microwize cannot be responsible for data damage or data loss. As per HIPAA regulations, client shall maintain offsite backups.

Power Protection: Power fluctuations cause data damage or loss. Client shall purchase and maintain reliable Uninterruptible Power Supply for all its data servers.

Antivirus & Malicious software: Client agrees to protect all hardware, whether connected to the internet or not, with Antivirus and Anti-spyware software in order to protect all software and data from attacks. Because software is continually developed and modified, Client shall also maintain said software with all the latest updates as per manufacturer instructions.

ELECTRONIC SERVICES

Client acknowledges having a choice of methods to process electronic services with insurance carriers, including but not limited to third party claims clearinghouses and direct claims submissions. Upon the client’s request, Microwize may make recommendations or assist in setting up such claims services. Under no circumstances shall this be construed as an approval or endorsement of said services. Client is responsible for researching available electronic claims solutions and agrees to maintain a separate agreement with these claims services and shall not hold Microwize liable for any claims, losses or disputes arising from that relationship.

SUPPORT SERVICES

Some software and services purchased from Microwize Technology, Inc. may include limited free support. Most free support is available through our website/email, unless otherwise specified. If you require more advanced technical support or require telephone assistance, additional consulting services or a support plan may be required. We reserve the right to change our support policy at any time without prior notice.

INSTALLATION TERMS & CONDITIONS

PLEASE READ: IF YOU CHOOSE TO HAVE MICROWIZE PERFORM ANY INSTALLATION OR SERVICES, YOU ACCEPT THE TERMS AND CONDITIONS STATED BELOW.

Installation

You must make every attempt to safeguard your data during installation or upgrades. Microwize Technology, Inc. does not assume responsibility for loss of data. All data should be backed up on a regular basis and should always be backed up before you perform installations or upgrades. We are not responsible for any loss of data.

Information contained in your data/media (“Client Information”) will be used by Microwize only for the purpose of fulfilling this Engagement, and will otherwise be held in confidence by Microwize.

Service Does Not Include:

Un-installation or re-installation of product(s) or software application(s), other than that which is specifically stated in the Service Description.
Warranty service or support for third party systems.
Troubleshooting applications or application compatibility issues.
Customization of end user’s MS-Windows desktop, including desktop Icons, folders or the configuration on non-business applications.
Software application installation, configuration, or data transfer, other than that which is specifically stated in this Service Description.
Network cabling (excluding cable from system to network jack) or any other environmental or power related activities.
Any activity not expressly stated in the Service Description.
Data Transfer from Old PC to New PC:

For Data Transfer, Client data must reside under a single directory on the hard disk of the old PC (i.e., My Documents).
Service Provider will copy the contents of the directory (up to 5GB) to the new PC. Service Provider will supply tools needed to facilitate data transfer. Data will be placed in the same file structure as the original machine.
Client will not have any security or domain restrictions preventing data transfer.
Ownership

Client warrants and represents to Microwize that they are in lawful possession of all data, media and/or equipment made available to Microwize, and that client has a lawful purpose to engage Microwize for the Engagement. Microwize is not permitted by law to copy pirated or copyrighted materials. Client acknowledges that Client owns the copyright or has a license to make copies to all of the files on the affected system(s) and that Client does not have any files on affected system(s) which would cause Microwize to be liable for copyright infringement if those files were copied as part of these Services, including but not limited to, music files, motion picture files or photographic files that are subject to copyright restrictions. Client accepts responsibility for, and agrees to indemnify and hold Microwize harmless from, any and all liability, damages, claims or proceedings arising out of Client’s failure to remove any such files from the affected system(s) prior to providing it to Microwize for these Services.

CANCELLATIONS

Due to the high demand of our technicians and trainers, we request that cancellations are made at least 48 hours before an appointment. If a cancellation is made within 48 hours or you are not available at the scheduled time, a rescheduling fee may apply.

DISCLAIMER OF WARRANTIES

To the extent allowed by local law, this software is provided to you “as is” without warranties or conditions of any kind, whether oral or written, expressed or implied. Microwize and any third party who makes its software disclaim any responsibility for any harm resulting from your use (or use by your employees, agents or contractors) of any hardware or software product purchased from Microwize. Microwize specifically disclaims any implied warranties or conditions of merchantability, satisfactory quality, non-infringement and fitness for a particular purpose. Any issues regarding recovered or lost data (either data corruption or incomplete migrations or recoveries) must be addressed within 10 business days of the completed recovery. After 10 business days your recovered data will be qualified as acceptable, and it will be removed from our servers. Any additional recovery attempts will be subject to additional recovery charges.

LIMITATION OF LIABILITY

Except to the extent prohibited by local law, in no event will Microwize Technology, Inc., or its employees or officers be liable for direct, special, incidental, consequential, punitive or other damages (including but in no way limited to lost profit, lost data, or downtime costs), arising out of the use, inability to use, or the results of use of the software, whether based in warranty, contract, tort or other legal theory, and whether or not advised of the possibility of such damages. Your use of the software is entirely at your own risk. Should the software prove defective, you assume the entire cost of all service, repair or correction.

Release and Consent

Client hereby grants Microwize a non-exclusive permission and without compensation to use its name, logo, graphic images, comments, and testimonials for promotional purposes such as, but not limited to, internet website, brochures, advertisements, training materials, reference letters, broadcasts and other public displays. Such permission shall have no expiration date unless otherwise rescinded in writing.

Miscellaneous Provisions

These Terms and Conditions will be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to the conflict of laws or provisions of New Jersey or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms and Conditions to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by Microwize and/or a third party who make its software.

Arbitration

Any dispute arising out of this agreement shall be subject to binding arbitration under the rules of the American Arbitration Association (AAA) in a location close to Microwize headquarters. The substantially prevailing party shall be reimbursed for all fees associated with arbitration by the non-prevailing party.

Incentives and Regulations

As the healthcare industry constantly changes, we highly recommend providers to attend and participate in Continuing Medical Education and non-Continuing Medical Education courses to be up to date on the latest regulations, incentives and potential penalties or take-backs. Microwize makes no warranty or guarantee that the client will achieve any incentives and denies any responsibility regarding a client’s compliance with such incentives, regulations or attestation.