Software Service Agreement

TiQ's Software Service Agreement

1. Access to the Services

Subject to and conditioned on your compliance with the terms of this Agreement, TiQ grants you and your authorized user, during the term of this Agreement, the right to access and use our proprietary cloud-based electronic medical records management "software as a service" application (the "Service"). You will access the Service through your own unique URL login that we will assign "Your Practice file", which includes all servers - both physical and virtual - responsible for hosting, running, and delivering the Service to you, and all data contained therein.

2. Pricing

All fees for the Service, including implementation fees to set up your Practice file and other fees charged to you for use of the Service, are set forth on Exhibit A attached hereto and as otherwise set forth herein. Although such pricing may be updated by us from time to time, we agree not to increase any of the fees expressly set forth this Agreement until 12 months has elapsed from the Effective Date. Your fees will not increase by more than 10% per year (for the same usage and service level).

For any new or additional services, or features made available in the future which are not listed on Exhibit A, including applications, modules and Service enhancements, we will charge you the fees stated on our most recent price list. We may also offer you access to third party services and applications as part of the Service, which you would pay for directly to such third- party providers pursuant to their applicable terms and conditions.

3. Implementation Timeframe

We will promptly coordinate with you to create your Practice file and set up the Service. This process usually takes between 14 to 21 days from the launch date to complete, depending on the complexity of work defined in your SOW. You agree to make available to us one contact person within your organization, authorized to discuss all features and requirements during the implementation period. Once your implementation is complete, the Service will go live on such date (the "Launch Date") and we will commence invoicing you for the fees or as otherwise set forth herein.

4. Standard Features and Maintenance

​Standard features and maintenance included as part of the Service consists of the following:

  1. a. The Practice's record keeping
  2. b. 24/7 monitoring and backup of your Practice account
  3. c. Hosting of Service and data with unlimited concurrent users of the Service per account and data.
  4. d. Access to the Therapy iQ LLC. library of copyrighted forms

5. Technical Requirements

To function correctly, the Service requires modern and current Chrome web browsers. For normal office use, any up-to-date PC or Mac computer with an Internet connection will be sufficient to run the Service, including printing of forms.

TiQ disclaims all liability arising from any Service performance-related issues or other negative effects, losses or damages to the extent caused by any failure by Customer to operate the Service in accordance with the technical requirements.

6. Payment Terms

We accept several methods of payment:

  • Credit Cards ACH
  • Practice Checks / Cashiers Check
  • Monthly subscribers currently have to pay by credit card or ACH direct withdrawal.
  • Annual subscribers can make their initial payments by check if they so choose.
  • Both types of subscribers are required to have at least one mode of payment stored on their account.

The Implementation fees and Service fees set forth on Exhibit A shall be due and payable upon your signing of this Service Agreement. All other fees under this Service Agreement will be invoiced in advance on or following the Launch Date.

Payment is automated and is billed on or around the end of the current month (the 25th day of every month) for the upcoming month's fees. Our system will attempt to bill your preferred method on file 3 separate times. In the event we are unable to collect payment after 3 attempts, at our discretion, we may discontinue the Service completely and/or charge you the greater of $250 per month per invoice or a five percent (5%) late fee for each month each outstanding invoice remains unpaid, or the maximum late fee allowed by law.

7. Standard Terms and Conditions.

By executing this Service Agreement, you and all users (including, as applicable, their employers) who access the Service through your Practice file will be bound by this Agreement. Without limiting the foregoing, you shall not, and shall ensure that no one accessing the Service through you or on your behalf: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Service or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Services, or use any of the Service for time sharing or similar purposes for the benefit of any third party; (iii) remove any copyright or proprietary notices contained in the Service or any output thereof; (iv) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Service; (v) access the Service via any bot, web crawler or non-human user; or (vi) access or use (or permit a third party to access or use) the Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes.

8. Practice Content

As between you and TiQ, you are solely responsible for all information, data, materials, patient records, patient information, and other content that you or any of your users upload, input, submit, or make available for upload, input or submission, to or in connection with the Service (“Practice Content”), and for the accuracy, quality, integrity, legality, reliability, and appropriateness of the same. Without limiting the generality of the foregoing, you shall not upload, input or make available (and shall ensure that your users do not upload, input or make available) any Practice Content or other content or material that (i) infringes, misappropriates, or otherwise violates the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (ii) is inaccurate, incomplete, or incorrect, (iii) violates any applicable law, (iv) is, or is likely to be considered, immoral, libelous, tortuous, defamatory, threatening, vulgar, or obscene or harmful to minors, or (v) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. Additionally, you represent and warrant to TiQ that, with respect to any Practice Content, you have or have obtained all permissions and consents necessary for you to properly comply with this Agreement, to grant the license set forth in Section 9(b), and to otherwise permit the accessing, processing, storage, and transmission of such Practice Content in connection with your use of the Service. TiQ makes no representations or warranties with respect to, and disclaims any responsibility or liability for, your Practice Data.

9. Intellectual Property

  1. a. TiQ Intellectual Property.
  2. As between you and TiQ, the Service and all software and other technologies embodied in or used to provide the same, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of TiQ and/or its licensors. No rights are granted to the Practice or any of your users hereunder other than as expressly set forth herein.
  3. b. Practice Intellectual Property.
  4. As between the Practice and TiQ, the Practice owns all right, title and interest in and to all Practice Content. The Practice hereby grants to TiQ a nonexclusive, worldwide, transferable, sub-licensable, irrevocable, royalty-free, fully paid-up license to extract, process, store, and otherwise access and use the Practice Content for purposes of providing the Service and making the Service available to the Practice and its users, and for such other purposes as may be set forth herein.
  5. c. Data Use Rights.
  6. You acknowledge and agree that TiQ may monitor the Practice’s and its users’ use of the Service, and may track and compile data and information related to such use, including, without limitation, statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between TiQ and the Practice, the Aggregated Statistics and all intellectual property rights therein or relating thereto are and shall remain the exclusive property of TiQ. TiQ may, without limitation, (a) make such Aggregated Statistics publicly available (provided that any such disclosure does not identify the Practice or any user or patient of the Practice), (b) use the Aggregated Statistics to the extent and in the manner required by applicable law or regulation, and (c) use the Aggregated Statistics to maintain, optimize and improve the Service, to develop, improve, or offer other TiQ products or services, or to otherwise operate TiQ’s business.
  7. d. Feedback.
  8. To the extent you or any of your users provide TiQ with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the Service (collectively, “Feedback”), you hereby assign and agree to assign to TiQ all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agree that TiQ will be free to use such Feedback in any manner, including by implementing such Feedback in the Service and/or TiQ’s other technologies, products and services, without compensation or other obligation to you or any of your users.

10.  Third Party Services

The Service may contain links to, incorporate, connect to, interoperate with, or otherwise allow you to access third party applications and services that are not owned or controlled by TiQ (collectively, “Third Party Services”). When you access third party websites or Third Party Services, you do so at your own risk. TiQ encourages you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each third-party website or Third Party Service (“Third Party Terms”) that you visit or from which you access or receive any product, service, or data. TiQ has no control over, and assumes no responsibility for, the content, accuracy, Third Party Terms, or practices of any third-party website or Third Party Service. In addition, TiQ will not and cannot monitor, verify, censor, or edit the content of any third-party website or Third Party Service. When you visit or use a third party’s website or Third Party Service, you acknowledge that such website or Third Party Service is subject to the applicable Third Party Terms, and you release us from any liability arising from your use of such websites or Third Party Service. You acknowledge that we are not responsible for such third parties or their products or services. Any such activities, and any Third Party Terms associated with such activities, are solely between you and the applicable third party.

11.  Confidentiality

  1. a. Confidential Information.  
  2. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed by a party in the course of the Agreement that should be reasonably understood to be confidential. The receiving party will (i) use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, (ii) not disclose Confidential Information to any third party without prior written authorization or as otherwise required for its performance hereunder, except that receiving party may disclose Confidential Information to its employees, contractors, consultants, and advisors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are bound by obligations of confidentiality, non-use and non-disclosure no less protective of disclosing party’s Confidential Information than the provisions hereof, and (iii) use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly granted under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information in its possession or control upon request.
  3. b. Exclusions.
  4. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; (iii) was rightfully obtained by the receiving party on a non-confidential basis from a third party; or (iv) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will, where permitted by applicable law, promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.

12.  Non-Competition

The Practice shall not, and shall not attempt to, develop, produce, market, distribute, license, sell, or otherwise make available in stand-alone, bundled or any other form, any products or services, or any product or service components, that may or do compete with the Service or any functionality thereof.

13.  Disclaimer of Warranties

THE SERVICE, AND ANY RELATED IMPLEMENTATION SERVICES OR OTHER PROFESSIONAL SERVICES OR DELIVERABLES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TIQ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. NEITHER TIQ NOR ANY PERSON ASSOCIATED WITH TIQ MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE OR ANY RELATED PROFESSIONAL SERVICES OR DELIVERABLES. WITHOUT LIMITING THE FOREGOING, NEITHER TIQ NOR ANYONE ASSOCIATED WITH TIQ REPRESENTS OR WARRANTS THAT THE SERVICE OR ANY PROFESSIONAL SERVICES, OR ANY RESULTS, DATA OR OUTPUTS GENERATED THEREFROM OR AVAILABLE THERETHROUGH WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE, ANY PROFESSIONAL SERVICES, OR ANY DATA, INFORMATION, OR RESULTS MADE AVAILABLE TO YOU IN CONNECTION THEREWITH OR GENERATED THEREFROM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. AS BETWEEN YOU AND TIQ, YOU ASSUME ALL RISK IN CONNECTION WITH YOUR USE OF, INTERPRETATION OF, AND RELIANCE ON THE SERVICE AND ANY PROFESSIONAL SERVICES, AND ALL CONTENT, RESULTS, AND OUTPUTS GENERATED THEREBY, AND ALL DATA AND INFORMATION AVAILABLE THERETHROUGH.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL TIQ OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE PRACTICE’S (OR ITS USERS’) ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF TIQ IS FOUND LIABLE FOR ANY LOSS OR DAMAGE UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, IN NO EVENT WILL TIQ’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE PRACTICE TO TIQ IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.

14.  Miscellaneous

TiQ may use the Practice’s name as part of a general list of clients and may refer to the Practice as a client and user of the Service in its general advertising and marketing materials. This Agreement contains the complete agreement between you and us regarding the Service and subject matter hereof, and supersede any contrary prior understandings, agreements, statements, documents or representations, including with respect to any promised or enhanced features of the Service, whether written or oral. This Agreement may not be modified, nor may any term waived, except in a writing signed by the Chief Executive Officer of Therapy iQ. This Agreement may be executed in one or more counterparts (including fax or pdf by electronic mail), all of which together shall constitute one fully integrated agreement between the parties. Manual signatures transmitted by facsimile, email or other means of electronic transmission shall have the same effect as an original thereof.

Each party agrees that this Service Agreement may be executed by electronic signatures, and such signatures, whether digital or encrypted, are intended to authenticate this writing and shall have the same force and effect as manual signatures. Electronic signature means any electronic symbol or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including the acceptance of the Therapy iQ LLC. Terms and Conditions upon login. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege. No course of dealing between or among any entity having any interest in this Agreement will be deemed effective to modify or amend any part of this Agreement or any rights or obligations of any entity under or by virtue of this Agreement.

Exhibit A - Billing

1. (Optional) Implementation Fee: The Practice will pay a one-time implementation fee (for data migration and set up) to be quoted by TiQ’s Product Activation Team invoiced upon approval of the quote. Note that this fee is optional, should the Practice perform these tasks in-house.

2. Enterprise License Fees: Except as expressly set forth in this Pricing Addendum, The Practice will pay  to Therapy iQ a single enterprise license fee (the “Enterprise License Fee”) on an annual basis to license access to the Platform described in the Addendum, which shall be calculated as shown on the pricing table below and assessed as follows:

  • a. Daily Rates: you’re billed for the members of your workspace that are actively logging into  TiQ.
  • b. This is a prepaid service so unused time in any billing period will be issued as credits to be used in the future.

3. Adding new members during your billing period: If you’re on a paid plan and add new team members partway through the billing period, we’ll prorate your invoice. We’ll keep track of this for you, and bill you accordingly.

  • a. If you pay monthly by credit card, we'll calculate the prorated cost and bill you at that time for any new members added.
  • b. If you pay annually by credit card, we'll calculate the prorated cost for the rest of the year, and bill you at that time for any new members added.
  • c. If you pay annually by ACH and your account grows beyond the members you’ve already paid for, we’ll bill you at that time to settle any outstanding balances

Important:

The Implementation fees and any Additional Services Fees are due immediately and are non refundable after the stated work commences.

Important:

Please note that your hosting fees could go up or down based on fluctuations in the pricing model you selected. For example changes in team pricing due to changes in your team's configuration.

Exhibit B - Statement Of Work (Sample)

This Statement of Work defines project-specific activities, deliverables and timelines for TiQ providing services to your Practice. The SOW may include detailed requirements and pricing.

  1. The Practice's requested implementation start date of: [Implementation Date]
  2. The Practice's requested go-live date of: [Launch.Date] —this is when billing will begin

Deliverables

Under this Statement of Work, we shall provide you with the following deliverables (the “Deliverables”):

  • Data Migration & Import
  • Form Customization
  • Form Consolidation
  • Training (Clinical and Admin)

Client deliverables

Under this Statement of Work, you shall provide us with the following deliverables (the “Client Deliverables”):

  • Documentation/ Forms needed
  • Availability for training

Exclusions

The following exclusions have been made in creating this Statement of Work:

  • Import Data Cleanup Exclusions:
  • Client’s Current Balances,
  • Client’s Future Appointments,
  • Client’s Credit Card info

Exhibit C - Termination Provisions

1. Notice Period:

Notwithstanding the terms of the Service Agreement, as consideration for The Practice's agreement to extend a further discount to the price list as contemplated in the Cover Sheet, the parties agree that the Service Agreement shall hereby require 30 days' advance written notice of termination, except as provided for in Paragraphs 2-4 below.

2. Early Termination:

The Practice may terminate the Service Agreement as follows:

  1. Any time with thirty (30) days' notice in the event of a total failure to provide the Service as set forth in the Service Agreement, if such failure shall remain uncured for thirty (30) days following notice to us by you;
  2. In the event that The Practice voluntarily or involuntarily files for bankruptcy under any chapter of the Federal Bankruptcy Code; or

TiQ may terminate this Agreement immediately as follows:

  1. In the event that TiQ learns that The Practice is engaged in illegal, unethical, immoral, or fraudulent business practices;
  2. In the event that The Practice fails to make timely payment(s) and allows any invoice to become greater than forty-six (46) days old without payment in full;
  3. In the event that the Practice or any of its users violate any provision of Section 7 or 8 of Exhibit A, or commits any other material breach of the Agreement that is not cured within 30 days of written notice; or
  4. In the event that The Practice voluntarily or involuntarily files for bankruptcy under any chapter of the Federal Bankruptcy Code.
  5. In the event that The Practice constructively breached the Agreement, as defined in Paragraph 7 herein.
  6. Permits access by any third party (or employee or agent thereof) engaged in, or planning to engage in, competition with TiQ to the Service, either by creating a user account for or otherwise allowing such third party to perform or observe any tasks performed in the Service.
  7. Constructive Breach: The Practice shall be deemed to have constructively breached the Agreement in the event that The Practice:
  • a. Removes TiQ records from active use in any facility in which TiQ records had been operative through the Service and replaces the Service with any other electronic health or medical record system, paper charting system, or any other manner of record keeping which functionally replaces the Service;
  • b. Installs any other electronic health or medical record system, paper charting system, or any other manner of record keeping which performs the same or similar functions as the Service at any other facility owned wholly or partially by The Practice or its equity holders;
  • c. Discontinues or substantially discontinues use of the Service as follows:
  1. i. The Practice's census count in Monthly Recurring Numbers drops below its past twelve (12) month average census by greater than fifty percent (50%); or
  2. ii. The Practice's census count in Monthly Recurring Numbers drops below its trailing eighteen (18) month average census by greater than fifty percent (50%).

Any terms of the Agreement which should, by their nature, survive the termination of the Agreement shall survive any termination or expiration of this Agreement.