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Patient Prism Services Terms and Conditions Agreement

 

This Patient Prism Services Agreement (the “Agreement”) is made by and between entered into by and between Patient Prism, LLC, with offices located at 13911 N. Dale Mabry Highway, Suite 111, Tampa, FL 33618 (“Prism”) and the Client identified in the Service Agreement to which these terms and conditions are attached (“Client”) (Prism and Client may collectively be referred to herein as the Parties and individually, generally, a Party).  The Agreement defines and governs Client’s access to and use of the Prism products and services (the “Services”) listed below as of the date this Agreement is fully executed (the “Effective Date”), in consideration of the mutual promises and covenants described as follows.

 

Definitions.
“Administrative User” means the named Client employees or authorized agents who: (i) have sufficient training and/or experience with the Application Service to perform the Client’s obligations; (ii) are responsible for all communications with Prism, including case submission and Incident reports; and (iii) who are authorized by Client to request and receive Services on behalf of the Client.
 
“Affiliate” means any person or entity, controlling, controlled by or under common control with Client or Prism as applicable. 
 
“Application Service” means, collectively, Prism’s online software Platform   including associated offline components, but excluding Third Party Applications and Professional Services. The Application Services shall include continuous efforts on the part of Prism, consistent with applicable industry standards and best practices, to enhance and improve the Platform and maintain the Platform and the provision of industry-leading software maintenance, updates, enhancements, and improvements.
 
“Change Order” means a change in any of the specifications, requirements, deliverables, or scope of any Professional Services as documented in any Statement of Work.
 
“Confidential Information” means information about the disclosing Party’s (or its Affiliates or suppliers) business or activities that is proprietary or confidential, which shall include all business, financial, technical and other information of a Party or Client which is either marked or designated by such Party as “confidential” or “proprietary” or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.
 
“Covered Locations” means locations submitted to Prism by Client for  Services on the Platform.
 
“Client Data” means all electronic data or information submitted by Client to, or gathered from Client by,  Prism and stored in the Platform.
 
“Effective Date” means the date that the Term begins. 
 
“Fees” means the fees, charges, and other costs set forth in an Order Form (Exhibit A) and in any applicable Statement of Work.
 
“Knowledge Base” mean the online English language user guides for the Application Service 
 
“Managed Services” means the dental practice management services and use of the Platform by Client  pursuant to the Managed Services Terms.
 
“Order Form” means the Application Service ordered by Client or its Affiliates pursuant to Order Forms. Each Estimate/Order Form, the first one of which is attached hereto as Exhibit A, shall include at a minimum a listing of the Application Service and any Prism implementation services being ordered and the fees therefore. 
 
“Platform” means the software system owned or licensed by Prism and marketed by Prism as further detailed in an Order Form (Exhibit A), such other systems and content Client acquires the right to access or use pursuant to this Agreement after the Effective Date; and all updates, enhancements, patches, fixes or modifications to any of the foregoing made available or provided by Prism to Client. The Platform includes: (a) the proprietary software applications and third party software applications provided or otherwise made available by Prism to Client as part of the Platform; (b) all technology, technical information, discoveries, ideas, theories, improvements, tools, designs, original works of authorship, processes, algorithms, software, inventions, know-how, techniques, and other information, including all intermediate and partial versions thereof, underlying the Platform.
 
“Professional Services” means the general consulting, implementation and/or training services to be provided to Client pursuant to any Statement of Work.
 
“Services” means the Application Services, Professional Services, and Managed Services covered in this Agreement.  
 
“Service Level Commitment” means Prism’s commitment to provide Client access to the Application Service pursuant to the Service Level Commitment Terms. 
 
“Statement of Work” means the applicable Professional Services in relation to this Agreement as defined in any subsequent Statement of Work.  
 
“Support Services” means Prism’s technical support services to be provided to Client pursuant to the Support Services Terms.
 
 “Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Prism that interoperate with the Application Service. 
 
 “Users” means individuals who are authorized by Client to use the Application Service pursuant to this Agreement or as otherwise defined, restricted or limited in an Order Form or amendment to this Agreement, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Client (or by Prism at Client’s request). Users may include but are not limited to Client’s and Client’s Affiliates’ employees, consultants, contractors and agents. 


Term.  This Agreement shall begin on the Effective Date and continue for the Term unless extended in accordance with this Agreement or earlier terminated as provided herein. In the event there are outstanding Order Forms as of the date of termination of the Term, the Term will be extended and the Agreement will remain in force, but only in connection with such outstanding Order Forms until their expiration or termination.

 

  1. Payment . Prism reserves the right to suspend Client’s access to and/or use of the Platform for any accounts for which any payment is due but unpaid but only after Prism has provided Client two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. The suspension is for the entire account and Client understands that such suspension would therefore include sub-accounts. Client agrees that Prism shall not be liable to Client or other third party for any suspension of the Service pursuant to this Section 3.
  1. Taxes.  Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the services by Prism Client under this Agreement and such shall be payable by Client to Prism in addition to all other charges payable.
  2. Professional Services.
    1. Prism shall provide consulting and training services as part of the Platform. Any additional services shall require a Statement of Work (SOW).  All SOWs shall be billed on a time and materials basis at Prism’s then-current consulting rates, unless otherwise agreed in writing by the parties. Any monetary limit referenced in a SOW shall be an estimate only for purposes of Client’s budgeting and Prism’s resource scheduling, unless expressly stated to be a definitive limit. Prism shall have the right to use third parties in performance of SOWs hereunder and, for purposes of this Agreement, all references to Prism or its employees shall be deemed to include such third parties. 
    2. Client acknowledges that Prism’s Professional Services, Platform, techniques, information, documentation, training materials, consulting methods, and any work product resulting from all Services performed by Prism, are Prism’s proprietary information and intellectual property (the “Utilities”). Prism hereby grants Client a non-exclusive, non-transferable right and license to use the Utilities under the Agreement – such right, and license shall terminate upon termination of this Agreement.  Prism retains all rights, title and ownership to the Utilities. 
    3. Authorization Limitations and Restrictions. Client shall not, and shall not permit anyone  to, access or use the Services or Utilities except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
      1. copy, modify or create derivative works or improvements of the Utilities;
      2. make available any Utilities to anyone outside of Users
      3. attempt to, or actually, reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Utilities, in whole or in part;
      4. bypass or breach any security device or protection used by the Utilities or access or use the Utilities other than by an Authorized User through the use of his or her own then valid access methodology;
      5. remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Utilities, including any copy thereof; or
      6. otherwise access or use the Utilities beyond the scope of the authorization granted under this Agreement.
    4. Client Obligations.
      1. Client Systems and Cooperation.  Client shall at all times during the Term: (a) set up, maintain and operate in good repair all systems owned or operated by Client through which the Utilities are accessed or used; (b) provide Prism with such access to Client’s premises and systems as is necessary for Prism to perform the Services in accordance with this Agreement; and (c) provide all cooperation and assistance as Prism may reasonably request to enable Prism to exercise its rights and perform its obligations under and in connection with this Agreement.
      2. Effect of Client Failure or Delay. Prism is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). 
      3. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited hereunder, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Utilities  and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Prism of any such actual or threatened activity. 
    5. Maintenance; Support. 
      1. Maintenance. Prism regularly maintains and updates the Prism Systems and Service Software to improve the Services and to address issues as they may arise from time to time. Prism will use commercially reasonable efforts to: (a) perform maintenance and install updates between the hours of (5) p.m. and (9) a.m., Eastern Time; and (b) give Customers reasonable prior notice of scheduled outages of the Hosted Services when it is reasonably practicable to do so (“Scheduled Downtime”).
      2. Service Support. The Services include Prism’s standard customer support services (“Support Services”) in accordance with the Prism service support policies then in effect (the “Support Policies”). Prism may revise or amend the Support Policies from time to time in its sole discretion.
      3. Data Backup.  Prism takes reasonable steps to maintain regular data backups and maintain redundant data archives. Nevertheless, Prism cannot guarantee the occurrence or integrity of any such backup or archive.   ACCORDINGLY, PRISM HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA. All data, including Client Data, held by Prism shall become the property of Prism subject to Prism’s Privacy Policy located on our website.  Prism may profit from Client Data that has been altered by Prism to comply with the current BAA, which may include demographic data compiled by Prism from Client Data.
    6. Privacy and Security; Business Associate Addendum.
      1. Prism Systems and Security.  Prism will employ security measures in accordance with its then-current, written data privacy and security notices and policies, if any, as may be posted on the Prism website or accessible through the Services, as applicable.  Except as otherwise expressly set forth in this Agreement or in such policies, the data security policies of Prism’s Subcontractor(s) shall govern as to the Hosted Services and applicable Client Data hosted or managed by such Subcontractor(s).   
      2. Protected Health Information. Notwithstanding the foregoing, in the event that Client is a “covered entity” under HIPAA and, as such, may disclose to Prism Client Data that constitutes “protected health information” under HIPAA, then the Agreement shall include the additional terms and conditions set forth in Prism’s then-current form of HIPAA Business Associate Addendum (the “BAA”).  The version of the BAA that is current as of the Effective Date may be attached as a schedule to the Ordering Documents or otherwise provided by Prism to Client, including on Prism’s website or in connection with Client’s access of the Services.  Prism may modify the BAA from time to time in its sole discretion by posting a revised version on the Prism website or making a revised version available to Client in connection with Client’s access of the Services. The modified version will become effective upon posting.  By continuing to use the Utilities, Client agrees to be bound by the modified version.
    7. Access and Security. Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all credentials to access the Utilities and protect against any unauthorized access to or use of the Platform; and (b) control the content and use of Client Data,
  3. Relationship of the Parties.  The Parties acknowledge and agree that each Party, its employees, agents or sub-contractors, in the performance of this Agreement, is acting as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties.
  4. Warranty.  Prism represents and warrants that (a) it will perform the Services with reasonable care and skill in accordance with industry standards, (b) the Services provided by Prism to Client under this Agreement will not infringe or violate any intellectual property rights or other right of any third party and (c) each party warrants that it will not introduce viruses, Trojan horses, worms, spyware, or other such malicious code into the Platform. 
  5. Authentication.  Client authorizes Prism to aggregate and share Client Data on behalf of Client on networks related to this Agreement. Client is responsible for securing DSL, cable or another high-speed internet connection and up-to-date “browser” software in order to utilize the Platform and Services. Client agrees to use commercially reasonable efforts to authenticate on networks related to this Agreement.  
  6. Use of the Marks.  Client hereby grants to Prism the limited, non-exclusive, non-transferable, royalty-free license to reproduce the trade names, trademarks and service marks in internal and external sales materials.  Prism will comply with all applicable laws, regulations, and customs and obtain any required government approvals pertaining to use of the other Client marks.
  7. Confidentiality.  Neither Party shall disclose any Confidential Information of the other Party. The receiving Party’s confidentiality obligation with respect to the Confidential Information of the disclosing Party shall not extend to information that: (a) is in the public domain at the time of its disclosure; (b) becomes part of the public domain through a source other than the receiving Party (directly or indirectly); (c) is required to be disclosed pursuant to a court order or governmental authority; or (d) is disclosed to its employees and professional advisors, provided they agree to keep such information confidential.  This Section 10 shall supersede all prior confidentiality agreements between the Parties and shall survive the termination or expiration of this Agreement.
  8. Mutual Representations and Warranties.  Each of the Parties hereby represents and warrants to the other that (i) it has all rights necessary to grant the other Party the rights granted by this Agreement; (ii) it has the power and authority to enter into, and perform its obligations under, this Agreement; and (iii) it is under no obligation, contractual or otherwise, which might in any way interfere with its full and complete performance of this Agreement.
  9. Limitation of Liability.  Neither Party or its Affiliates shall ever be liable to the other Party for indirect, consequential, special or exemplary damages arising from or relating to this Agreement.  The foregoing limitation of liability shall apply to the fullest extent permitted by applicable law.
  10. Indemnification
    1. Prism Indemnification.  Prism shall indemnify, defend and hold harmless Client, its officers, directors, employees, agents, subsidiaries and other Affiliates, from and against any and all damages, costs, penalties, liabilities, or expenses (including attorneys’ fees and costs) directly or indirectly arising out of or related to any third party claim, suit, or demand based on (a) Prism’s grossly negligent or willful acts or omissions in carrying out its obligations under this Agreement or (b) any allegation that the Service (in whole or in part) or any other intellectual property furnished in connection with this Agreement infringes any U.S. patent, copyright, trademark, trade secret or other proprietary right.  This Section 13(a) shall survive the termination or expiration of this Agreement.
    2. Client Indemnification.  Client shall indemnify, defend and hold harmless Prism, its officers, directors, employees, agents, subsidiaries and other Affiliates, from and against any and claims and all damages, costs, penalties, liabilities, or expenses (including attorneys’ fees and costs) directly or indirectly arising out of or related to any third party claim, suit, or demand based on Client’s negligent or willful acts or omissions to the extent those caused such claims or damages.  This Section 13(b) shall survive the termination or expiration of this Agreement.
  11. Severability.  In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, and the Parties will maintain the original benefit of the bargain for each party to the maximum extent possible under the law.
  12. Assignment.  Neither Party may assign this Agreement without the other Party’s written consent; provided however, that either Party may assign this Agreement (a) to an Affiliate; (b) to an acquirer in connection with any merger, consolidation, or sale of all or substantially all of such Party’s assets; (c) in connection with any transaction or series of transactions resulting in a change of control or (d) in the event of any internal restructuring not constituting a change in control, to an Affiliate or successor-in-interest.  In the case of any assignment permitted by this Section 15, (i) the assigning Party must provide notice of such assignment, (ii) the assignee must agree in writing to be bound by all the terms and conditions of this Agreement, and (iii) if the assignment is to a subsidiary of the assigning Party, the assignor shall remain primarily liable.
  13. Non-Solicitation. During the Term of this Agreement and for one (1) year after any termination of this Agreement, Client will not directly or indirectly, on Client’s own behalf or in the service or on behalf of others, in any capacity induce or attempt to induce any officer, director, or employee to leave Prism. 
  14. Governing Law.  This Agreement will be governed and construed in accordance with the laws of the State of Florida and any applicable federal laws, without regard to principles of conflicts of laws.  The Parties hereby consent to the exclusive jurisdiction of the federal and state courts in Hillsborough County, Florida, for purposes of any legal action arising out of or related to this Agreement.  EACH PARTY HERETO WAIVES TRIAL BY JURY FOR ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
  15. Survival.  The rights and obligations of the Parties that survive termination or expiration of this Agreement, including those set forth herein concerning indemnification, confidentiality, warranty, limitation of liability and choice of law and venue, will remain in full force and effect. No termination or expiration of this Agreement will relieve either Party for any liability for any breach of, or liability accruing under this Agreement prior to termination.
  16. Integration.  This Agreement will constitute a binding contract between Prism and Client and will supersede any other oral or written Agreements between the Parties regarding the subject matter therein (including terms in or referenced in this Agreement). 
  17. Remedies.  No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either Party shall not constitute a waiver of the right to pursue other available remedies.
  18. Non-Material Changes.  This Agreement may be amended from time to time unilaterally by Prism and re-posted on the website.  We will notify you of these changes or updates as they happen. 
  1. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Prism Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement.  
  1. Customer Obligations.
    1. Customer Systems and Cooperation.  Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Services are accessed or used; (b) provide Prism Personnel with such access to Customer’s premises and Customer Systems as is necessary for Prism to perform the Services in accordance with the Documentation; and (c) provide all cooperation and assistance as Prism may reasonably request to enable Prism to exercise its rights and perform its obligations under and in connection with this Agreement.
    2. Effect of Customer Failure or Delay. Prism is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). 
    3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Prism Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Prism of any such actual or threatened activity. 
  1. Maintenance; Support. 
    1. Maintenance. Prism regularly maintains and updates its systems to improve the Services and to address issues as they may arise from time to time. Prism will use commercially reasonable efforts to: (a) perform maintenance and install updates between the hours of (5) p.m. and (9) a.m., Eastern Time; and (b) give Clients reasonable prior notice of scheduled outages of the Hosted Services when it is reasonably practicable to do so (“Scheduled Downtime”).
    1. Service Support. The Services include Prism’s standard customer support services (“Support Services”) in accordance with the Prism service support policies then in effect (the “Support Policies”). Prism may revise or amend the Support Policies from time to time in its sole discretion.
    2. Third Party Software and Services.  The Utilities use non-Prism software and services, including but not limited telephony.  Prism is not responsible for, and Client shall hold Prism harmless for any and all failures, act and omissions of Third Party Software and Services.
  1. Data Backup.  Prism takes reasonable steps to maintain regular data backups and maintain redundant data archives. Nevertheless, Prism cannot guarantee the occurrence or integrity of any such backup or archive.   ACCORDINGLY, PRISM HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA. 
  2. Privacy and Security; Business Associate Addendum.
    1. Prism Systems and Security.  Prism will employ security measures in accordance with its then-current, written data privacy and security notices and policies, if any, as may be posted on the Prism website or accessible through the Utilities, as applicable.  Except as otherwise expressly set forth in this Agreement or in such policies, the data security policies of Prism’s Subcontractor(s) shall govern as to the Hosted Services and applicable Client Data hosted or managed by such Subcontractor(s).   
    2. Protected Health Information. Notwithstanding the foregoing, in the event that Customer is a “covered entity” under HIPAA and, as such, may disclose to Prism Personal Information that constitutes “protected health information” under HIPAA, then the Agreement shall include the additional terms and conditions set forth in Prism’s then-current form of HIPAA Business Associate Addendum (the “BAA”).  The version of the BAA that is current as of the Effective Date may be attached as a schedule to the Ordering Documents or otherwise provided by Prism to Customer, including on Prism’s website or in connection with Customer’s access of the Services.  Prism may modify the BAA from time to time in its sole discretion by posting a revised version on the Prism website or making a revised version available to Customer in connection with Customer’s access of the Services. The modified version will become effective upon posting.  By continuing to use the Services, Customer agrees to be bound by the modified version.
    3.  Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Prism Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
  1. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.