Standard Terms and Conditions

 

These Standard Terms and Conditions (the “Terms”) govern your (“You”, “Your”, or “Client”) purchase of any services (collectively, the “Services”) from CE Broker, Inc. (“CE Broker”) (CE Broker and You shall be referred to herein individually, where appropriate, as a “Party,” or collectively, where appropriate, as the “Parties”).  These Standard Terms and Conditions together with the Order Form (collectively, the “Agreement”) constitute the entire Agreement between the Parties regarding the Services and supersede all prior understandings, arrangements and agreements between the Parties, whether written, oral, electronic, express or implied.  CE Broker reserves the right to amend these Terms from time to time without notice.

1.Representation of Authority.  You represent and warrant that You, individually and/or on behalf of the entity specified in the Order Form, are authorized to enter into the transaction evidenced by the Agreement.

2.Definitions.  The following terms, when used in this Agreement, shall have the following meanings:

2.1 “Affiliate” means any other entity that directly or indirectly controls a Party, is controlled by a Party or an entity which is under common control with a Party.  As used herein, the term “control” means:  (i) the power to vote at least ten percent (10%) of the voting power of an entity, or (ii) the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.

2.2 “Applicant” means any individual whose name or identifying information has been provided by Client to CE Broker as a prospective Employee of Client. For the purposes of this Agreement and its Exhibits, an Applicant shall be considered a subset of “Employee.”

2.3 “Client Data” means all data, content, material, and other information provided by Client to CE Broker for use in connection with the Services. Client Data includes both publicly and non-publicly accessible data provided by Client to CE Broker, and includes Proprietary or Confidential Information (defined below). 

2.4 “Deliverables” mean all reports and e-mail notifications generated by CE Broker as a result of, or incidental to, the Services.

2.5 “Employee” means any individual whose name or identifying information is provided by Client to CE Broker for the use of the Services, whether or not that person is actually employed by Client on a full time, part time, or independent contractor basis, or not at all. This shall include prospective employees or Applicants of Client. CE Broker’s Services are performed regardless of the Employee’s actual employment status based upon the most recent information and requests from the Client.

2.6 “Proprietary or Confidential Information”  means, with respect to a Party hereto, all information or material which: (i) is not publicly accessible; and either (ii) gives that Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that Party; or (iii) which is (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the Parties to be considered confidential and proprietary or (C) of such a type, nature or character that a reasonable person under like circumstances would treat such information as confidential, including but not limited to employee and medical staff information; business, technical, marketing, financial, customer, or vendor information; or intellectual property.  Neither Party shall have any confidentiality obligation with respect to information which:  (i) is known or used by the receiving Party prior to disclosure by the disclosing Party; (ii) either before or after the date of the disclosure by the disclosing Party is disclosed to the receiving Party by a third party under no obligation of confidentiality to the disclosing Party; (iii) either before or after the date of the disclosure to the receiving Party becomes published or generally known to the public through no fault of the receiving Party; (iv) is independently developed by the receiving Party; (v) is required to be disclosed by a final order of a court of competent jurisdiction; or (vi) is otherwise required to be disclosed by applicable law following reasonable notice, if permitted by law, to the disclosing Party.

2.7 “Provider” means any individual whose name or identifying information has been provided by Client to CE Broker as a medical provider for use of the Services. For the purposes of this Agreement and its Exhibits, a Provider shall be considered a subset of “Employee.”

2.8 “Services” means certain services as described in any written Order Form as may be agreed upon by the Parties in writing in accordance with the terms of this Agreement.

2.9 “Order Form” means a written order form signed by both Parties which refers to these Terms.

3. Services.  CE Broker agrees to provide the Services to Client as set forth in a mutually executed Order Form. CE Broker is responsible for delivering and performing only those Services and Deliverables specifically identified in a duly executed Order Form. CE Broker reserves the right to change, add or remove functionalities, features or the appearance (collectively, a “Change”) of the Services and Deliverables at any time; provided, however, that the Services and Deliverables after such Change shall still meet the specifications set forth in the Order Form. A description of all Services is provided herein.

4. Acceptance of Deliverables.  Each Deliverable shall be subject to acceptance and/or acceptance testing by Client, at Client’s sole option, to verify that the Deliverables satisfy the acceptance criteria, if any, of the Order Form.  At Client’s request, CE Broker will provide sufficient evidence to demonstrate the adequate testing of the Deliverables to meet the foregoing requirements.  The documentation provided by CE Broker shall represent the minimum functionality of the Deliverables.  If Client discovers a non-conformity within ninety (90) days following the date of delivery of a Deliverable and Client notifies CE Broker of the non-conformity in writing within ninety (90) days following the date of delivery of such Deliverable, CE Broker shall, as Client’s sole and exclusive remedy for breach of the foregoing warranty, either correct the non-conformity to Client’s reasonable satisfaction at no additional charge in a timely, professional manner, or, if CE Broker fails to timely correct the non-conformity, refund monies paid by Client for the Services attributable to, or affected by, the non-conforming Deliverable.

5. Change Orders.  Client shall submit all change requests concerning the Services and Deliverables to CE Broker in writing.  CE Broker will evaluate each change request and provide a written response within thirty (30) days of receipt of the request.  The written response will include a statement of the availability of CE Broker’s personnel and resources, as well as the impact the proposed changes will have on the fee for the Services, delivery dates, milestones, and warranty provisions of this Agreement.  CE Broker and Client shall execute a change order (“Change Order”) to reflect the terms of the change request.  Unless otherwise agreed upon by the Parties in writing, such Change Order shall be prospective only, and shall not affect the Parties’ respective rights and duties which accrued under any prior or existing Order Form. Such Change Order shall be effective only upon execution by both Parties. The Parties acknowledge and agree that administrative or other requests for changes to the billing, invoicing, management or structure of the Services and Deliverables including, without limitation, merging, transferring, linking, or splitting accounts by, through, or among Client and/or any third-parties or Affiliates as a result of merger, acquisition, restructuring, sale or otherwise, or requests for additional and/or in-person training, shall require a Change Order and be subject to additional fees and travel costs, as applicable.

6. Training.  Unless otherwise agreed by the Parties in an Order Form or Change Order, CE Broker will not be responsible for providing any training to Client or its personnel regarding the use and operation of the Services. Except as may be expressly stipulated in an Order Form, any requests for additional and/or in-person training shall be subject to CE Broker’s approval and shall be subject to additional fees and costs, including travel costs, as applicable.

7. Fees, Expenses, and Payment.

7.1 Fees.  In consideration of the Services and Deliverables to be performed and furnished by CE Broker, Client shall pay CE Broker the fees set forth in the applicable Order Form. CE Broker will invoice Client for the Services and Deliverables based on the total number of unique profiles existing in the Software at any point during each calendar month. Regardless of the number of profiles, CE Broker will invoice Client a minimum of $200 per calendar month. Service fees are billed monthly and will not be pro-rated on account of any partial calendar month of Service. All fees will be invoiced effective as of the first day of the month in which Services are commenced, and each invoice must be paid by Client to CE Broker within thirty (30) days following CE Broker mailing or electronically transmitting each invoice to Client. Any amounts due to CE Broker under this Agreement not received by the date due will be subject to a late fee of one and one-half percent (1.5%) per month. If: (i) Client fails to pay CE Broker for all invoiced amounts within thirty (30) days of CE Broker mailing or electronically transmitting each invoice to Client (a “Monetary Default”); (ii) CE Broker provides written notification to Client of such failure (a “Monetary Default Notice”); and (iii) Client does not cure such Monetary Default within thirty (30) days of CE Broker mailing or electronically transmitting the Monetary Default Notice to Client, then, in addition to all other remedies available to it at law or equity, CE Broker may immediately stop providing all Services to, or for the benefit of, Client and Client waives any claims or defenses on account thereof. Any such Monetary Default shall constitute a material breach of this Agreement by Client.

7.2 Resolution of Fee Disputes.  Client covenants and agrees that any invoiced amounts it withholds as being disputed must be disputed by Client in good faith. Client agrees to provide reasonable details of the dispute, including, but not limited to, specific amounts, charges, and/or fees as well as the nature and factual or legal basis of any such dispute, to CE Broker in writing and to cooperate with CE Broker in attempting to promptly resolve the dispute.  Client’s failure to mail or electronically transmit to CE Broker written record of the dispute, as described herein, within thirty (30) days following CE Broker mailing or electronically transmitting each invoice containing a disputed amount (the “Disputed Invoice”) shall constitute an unconditional waiver and release of any dispute or defense of Client to the full and prompt payment of the Disputed Invoice, and all amounts due under the Disputed Invoice shall be immediately due and payable without further presentation or demand.  In the event it is determined that Client was not correct in withholding payment of a Disputed Invoice, Client shall pay CE Broker interest on the unpaid amount at the lesser of eighteen percent (18%) per annum or the highest amount allowed by law commencing thirty (30) days following Client’s receipt of the Disputed Invoice.

7.3 Expenses.  The Parties do not contemplate that CE Broker will incur expenses that will require reimbursement from Client, but in the event CE Broker will seek reimbursement of expenses from Client, CE Broker will obtain written approval from Client prior to incurring such expenses.

7.4 Taxes.  Client represents that it is exempt from most sales, use, excise and similar taxes and will not be responsible for the payment of any such taxes to CE Broker if it timely provides CE Broker with a valid exemption certificate.  In the event the Services are deemed taxable by any taxing authority, Client shall pay for taxes imposed in conjunction with this Agreement, including sales, use, excise and similar taxes based on or measured by charges payable under this Agreement and imposed on the purchaser of Services under authority of federal, state or local taxing jurisdictions.  Client’s obligation described in this subsection specifically excludes foreign, federal, state and local taxes based upon CE Broker’s revenues, net income, employees, corporate existence or related tax.

Other Fees.  Unless otherwise provided in an Order Form or a Change Order executed by the Parties, all other services rendered by CE Broker to, or for the benefit of, Client which are not expressly agreed upon in advance by the Parties under an Order Form or a Change Order (the “Additional Services”) shall be billed to Client at CE Broker’s then-current rates.  Prior to performing any Additional Services, CE Broker will inform Client in writing of the fees associated with such Additional Services and CE Broker will obtain written consent from Client to perform the Additional Services.

8. Proprietary Rights.  CE Broker agrees that any Deliverables provided to Client in connection with the Services are the exclusive property of Client.  CE Broker agrees to execute all papers and do all things reasonably necessary to ensure that Client obtains full title to such Deliverables.  Notwithstanding the foregoing, CE Broker is and shall be the sole and exclusive owner of all software, including without limitation all code, source code, object code, algorithms, models, files and file structures comprising the computer programming (collectively, the “Software”) used to perform the Services or to provide the Deliverables, and nothing in this Agreement shall transfer any right, title, claim or ownership in, to, or of the Software to Client.

9. Termination.  Either Party may, for cause, terminate an Order Form or a Change Order effective immediately upon mailing or electronically transmitting written notice (the “Termination Notice”) to the other Party, if: (i) the other Party breaches any material obligation provided in these Terms, an Order Form, or a Change Order, or is otherwise in default of this Agreement, and (ii) the breaching Party fails to cure such breach within thirty (30) days of the non-breaching Party mailing or electronically transmitting written notice to the other Party of such a breach or default.  Upon termination of an Order Form and Change Orders also terminate, except and excluding all rights to payment for Services rendered by CE Broker to, or for the benefit of, Client up to and including the date of termination of the Order Form or Change Order.

9.1 Termination Invoice.  Client shall pay CE Broker according to the applicable Order Form for all Services and Deliverables up to and including the date of termination.  In addition, except for Services and Deliverables that led to a termination for cause by Client, CE Broker shall be paid at its then current hourly rates for time spent and materials expended through the date of termination. CE Broker shall provide Client with an invoice (“the Termination Invoice”) for the foregoing amounts within thirty (30) days of the effective date of the termination.  Client shall pay undisputed portions of the invoice within thirty (30) days of CE Broker mailing or electronically transmitting the invoice to Client.  

9.2 Return of Proprietary or Confidential Information.  Within ten (10) days of the date of termination or expiration of on Order Form, each Party shall return to the other all Proprietary or Confidential Information of the other Party in the Party’s possession or, with the written approval of the Party, destroy all such Proprietary or Confidential Information.  Client shall retain all right, title and interest in its Proprietary or Confidential Information.  In the event of a termination of an Order Form, the return or destruction obligation shall only apply to Proprietary or Confidential Information in such Party’s possession due to the terminated Order Form.  Notwithstanding the foregoing, the obligation to return or destroy shall not extend to archival and backup media maintained in the normal operations of Client.

9.3 Events of Default.  Each of the following events shall constitute an event of default under this Agreement:

(a) Client fails to timely pay any and all amounts due under this Agreement;

(b) Client files a petition in bankruptcy under the United States Bankruptcy Code, which petition is not denied or dismissed within sixty (60) days of the date of filing;

(c) Client makes an assignment for the benefit of creditors;

(d) Client consents to, or suffers a final and non-appealable court order for, the appointment of a trustee or receiver for all or a major portion of its property and/or assets;

(e) Client is adjudicated as insolvent or bankrupt under any state or federal law;

(f) Client suffers a writ of attachment or similar process issued by a court of competent jurisdiction against all or substantially all of its assets, which writ or similar process is not contested, stayed, or released within sixty (60) days of its entry; and

(g)Either Party fails to observe or perform any covenant, agreement, or provision of this Agreement.

9.2 No Default. In no event shall the inaccuracy, unavailability, or limited availability of any third-party services, databases, or information upon which the Services rely or use constitute a default by CE Broker of the Agreement, so long as the inaccuracy, unavailability or inaccessibility is outside the reasonable control of CE Broker.

10. Warranties. 

10.1 CE Broker warrants that for a period of ninety (90) days from the date of acceptance the Deliverables will be provided and operate in substantial conformance with the specifications in the applicable Order Form.  All warranty claims not received by CE Broker in writing within such period shall be deemed waived and/or abandoned.  As the sole and exclusive remedy of Client for breach of the foregoing warranty, CE Broker shall, at its option, either correct the nonconformity or refund to Client the fees paid in connection with the relevant Deliverables.  This warranty is contingent on the Client’s proper system configuration to allow access to the Services and the proper performance, availability, and/or accuracy of any third-party software, services, hardware, and/or data used to perform the Services.  CE Broker shall not be liable for any failures, reduced performance, or inaccuracies caused, in whole or in part, by third-party hardware, software (including Client’s own systems), services, and/or data, misuse of the Services, or the negligence or willful misconduct of Client.

10.2 CE Broker warrants and represents that any Services performed by CE Broker or by a permitted subcontractor or agent of CE Broker shall be performed in a professional manner, consistent with industry practices and in a diligent, workmanlike, and expeditious manner, and in accordance with all applicable laws. 

10.3 CE Broker warrants and represents that it has taken and will take in the future reasonable precautions to avoid creating, delivering or transmitting a virus or worm to Client in connection with the performance of the Services.  CE Broker further warrants and represents that it will take reasonable precautions to cause any Deliverables provided to Client to be free from viruses or worms upon their delivery to Client.

10.4 CE Broker represents and warrants that reasonable safeguards are in place to provide referential integrity between referential databases and to provide that data integrity and accuracy is maintained so that any licensing data output by the Services or input into Client’s system in connection with the Services is an accurate representation of the licensing data provided to CE Broker by the licensing entities from which it is obtained.  Nothing in this Agreement or this subsection shall mean, or shall be construed to mean, that CE Broker warrants or otherwise guarantees the accuracy of any third-party data, including any data obtained by CE Broker from referential databases, which used or relied upon in rendering the Services.

10.5 CE Broker represents and warrants that it is the owner and holder of all rights in the proprietary Software and infrastructure used to perform the Services.

10.6 CE Broker represents and warrants that it will meet or exceed all Service thresholds detailed on the applicable Order Form, including maintaining 99% uptime (measured monthly) for all web-based reports, available online at www.EverCheck.com, excluding outages or service interruptions due to scheduled maintenance and/or the unavailability or limited availability of third-party data or sources, referential databases or vendor services, and Service outages otherwise attributable to causes outside the reasonable control of CE Broker (by way of example, and not limitation, changes in third-party website design which render automated license verification inoperable). CE Broker agrees there shall be no scheduled maintenance during regular business hours, which are defined as Monday through Friday, 8:00 a.m. to 8:00 p.m. EST, excluding holidays.  In the event of an unscheduled interruption(s) in the Services exceeding 1% of the available monthly usage, excluding outages due to the unavailability or limited availability of third-party data or sources, referential databases or vendor services, upon Client’s request CE Broker will not invoice Client, and Client will not be required to pay CE Broker, for the time during which the Services are unavailable.  Such unavailability of the Services will be identified by CE Broker in the applicable invoice through a pro-rata reduction in the amount invoiced. 

10.7 Client represents and warrants that it has all necessary rights, title and interest in and to any and all Client Data provided to CE Broker under this Agreement. Client represents and warrants that in providing and accessing the Client Data it has and will comply with all applicable state, local, and federal laws, rules and regulations, and has obtained all required authorizations and approvals for CE Broker’s receipt and use of, and Client’s access to, the Client Data. 

11. Disclaimer of Warranties.  Except as provided in the section entitled “Warranties”, the Services and Deliverables are provided “as is” with all faults, and without warranty of any kind. CE Broker disclaims all warranties, express and implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. CE Broker does not warrant that the Services or Deliverables will meet Client’s requirements. Client expressly agrees and acknowledges that use of the Services and Deliverables is at Client’s sole risk, and that CE Broker shall not be responsible for outages or reduced performance of, or interruptions to, the Services or Deliverables due to, in whole or in part, the unavailability or limited availability of third-party data, Client Data, or vendors upon which the Services rely. Client expressly agrees and acknowledges that CE Broker does not warrant the accuracy of any third-party data, Client Data or referential databases used to render the Services or Deliverables, and Client expressly acknowledges and agrees that any inaccuracies or discrepancies in the Services or Deliverables resulting, in part or in whole, from such third-party data, Client Data or referential databases is not chargeable against CE Broker. CE Broker does not manage or control the hardware, software, and/or data supplied or used by third-parties, including Client or its Employees and any vendors upon which the Services rely, and CE Broker is not be liable for failures, reduced performance, or inaccuracies in the Services or Deliverables caused by, in whole or in part, such third-parties. CE Broker’s Services require Client to exercise final review and affirmative acceptance of all Client Data submitted by Client and Client’s Employees that cannot be verified with a third-party licensing entity, and CE Broker is not liable for any errors resulting, in whole or in part, therefrom. No oral or written information or advice given by CE Broker or CE Broker’s representatives shall create a warranty or in any way increase the scope of the limited Warranties provided in this Agreement. The limited Warranties provided in this Agreement are solely for the benefit of Client and Client shall have no authority to extend any such warranty to any third-party.  

12. Indemnification.   The Parties will indemnify each other as follows:

12.1 By CE Broker. CE Broker will indemnify Client from and against any and all third-party claims, losses, damages, suits, fees, judgments, costs and expenses (including attorneys’ fees) which Client may suffer or incur solely to the extent caused by: (a) CE Broker’s breach of the section entitled “Data Security and Privacy,” and (b) Client’s use of the Services or Deliverables or any portion thereof which infringes or violates any patent, copyright, trade secret, trademark, or other third-party intellectual property right; provided, however, in no event will CE Broker indemnify Client for claims, losses, damages, suits, fees, judgments, costs and expenses (including attorneys’ fees) which arise from or are connected with Client’s own negligence or intentional acts or omissions.  In the event that Client is enjoined from using the Services, Deliverables, or any portion thereof due to the acts or omissions of CE Broker, CE Broker shall promptly, at its expense and election (including, but not limited to the payment of any royalties occasioned by the following) either: (i) provide to Client non-infringing means of using the Services and/or Deliverables; (ii) negotiate and procure for Client the right to use the Services and/or Deliverables without restriction; or (iii) if neither (i) nor (ii) can be accomplished within a reasonable time period on commercially reasonable terms, and at no cost to Client, then provide an equitable refund to Client of monies paid by Client to CE Broker under the applicable Statement(s) of Work with respect to the Deliverables that Client is not able to use as a result of such infringement. This section states Client’s sole and exclusive remedy for CE Broker’s infringement or misappropriation of intellectual property of a third-party.

12.2 By Client. Client shall indemnify CE Broker from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses (including attorneys’ fees) which CE Broker may suffer or incur solely to the extent caused by: (a) Client’s breach of the section entitled “Confidentiality”; and (b) any information provided by Client to CE Broker which is inaccurate, incomplete, misleading, untimely or otherwise not authorized to be transmitted to CE Broker by or on behalf of an Employee or any third-party.

13. Limitation of Liability.  EXCEPT FOR CLAIMS OR LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY OR ITS EMPLOYEES OR AGENTS,  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR A PARTY’S PERFORMANCE HEREUNDER, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR CLAIMS OR LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY OR ITS EMPLOYEES OR AGENTS,  EACH PARTY’S TOTAL LIABILITY TO THE OTHER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED TWO (2) TIMES THE AMOUNT OF THE FEES ACTUALLY PAID BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH DAMAGES OR CLAIMS, OR IF SUCH CLAIM ARISES DURING THE INITIAL TWELVE MONTHS, THE AMOUNT TO BE PAID BY CLIENT DURING SUCH INITIAL TWELVE MONTH PERIOD. 

14. Insurance.  CE Broker shall provide commercial general liability insurance (which includes errors & omissions insurance) in the amount of $1,000,000 per claim and $3,000,000 in the annual aggregate.

15. Confidentiality. 

15.1 In General.  The Parties agree to hold each other’s Proprietary or Confidential Information in strict confidence.  The Parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third-party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each Party agrees to take all reasonable steps to ensure that Proprietary or Confidential Information of the other Party is not disclosed or distributed by its employees, agents or contractors in violation of the provisions of this Agreement. Each Party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that Party.  Each Party acknowledges that any use or disclosure of the other Party’s Proprietary or Confidential Information other than as specifically provided for in this Agreement may result in irreparable injury and damage to the non-using or non-disclosing Party.  Accordingly, each Party hereby agrees that, in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-using or non-disclosing Party may be entitled to equitable relief as granted by any appropriate judicial body. The obligations under this section shall survive the expiration or termination of this Agreement and continue in perpetuity; including with regard to trade secrets, which shall remain confidential for so long as the information remains protected as a trade secret.

15.2 Confidentiality of Agreement.  Client, and any of Client’s Affiliates, shareholders, members, officers, employees, agents, or assigns, shall not disclose the terms of this Agreement, the existence of this Agreement or any matters relating to this matter except:

(a) As is required to comply with any applicable rules, statutes or regulations of any governmental agency;

(b) As is necessary to obtain legal, tax or accounting advice (provided that any legal, tax or accounting professional to whom the Agreement is disclosed must first agree to be bound by the terms of this Agreement concerning confidentiality, and Client shall be responsible for their respective professionals’ compliance with the terms of this Agreement);

(c) In order to enforce the terms of this Agreement;

(d) As required by court order or other rule of law;

(e) To comply with applicable Rules of Civil Procedure relating to discovery in any litigation; or 

(f) With CE Broker’s express, written consent.

16. Data Security and Privacy. CE Broker will maintain and enforce reasonable security safeguards and procedures with respect to the Services and data received from Client that are (a) at least equal to industry standards for such types of locations, and (b) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access to Client Data. In the event of an unlawful use or disclosure by CE Broker, its employees, agents, or subcontractors of Personal Information (as defined herein) resulting from CE Broker, its employees, agents or subcontractors failing to comply with its obligations under this Agreement, CE Broker shall take the following action with respect to such unauthorized use or disclosure: (a) to the extent required by applicable law, promptly communicate the nature of the unauthorized use or disclosure to those persons whose Personal Information was or likely was involved in an unauthorized use or disclosure (“Affected Individuals”) via written correspondence approved by Client; and (b) take all action commercially reasonable to mitigate any damages of Client relating to the unauthorized  use or disclosure of Personal Information.  CE Broker will promptly report to Client any breaches of security resulting in unauthorized access to Client’s Confidential or Proprietary Information, in accordance with applicable law.  

17. Non-Solicitation.  The Parties agree not to recruit or hire any employee of the other Party, either as an employee or consultant, or recruit any such person on behalf of another company, while such person is employed or retained by the other Party and for a period of 12 months after the employee leaves the employ of the other Party, or for a period of 12 months after the termination or expiration of this Agreement, whichever period ends at the earlier date.

18. Regulatory Requirements.

18.1 Access to Books and Records.  To the extent that Section 952 of the Omnibus Reconciliation Act of 1980 (the “Act”) and the regulations promulgated thereunder are applicable to this Agreement, CE Broker and the organizations related to it, if any, performing any of the duties pursuant to this Agreement valued at Ten Thousand Dollars ($10,000) or more in any twelve (12)-month period shall, until four (4) years after the furnishing of Services pursuant to this Agreement, comply with requests by the Comptroller General, the Secretary of the Department of Health and Human Services, and their duly authorized representatives for access (in accordance with Section 952 of the Act) to any contract or agreement between CE Broker and Client for Services and to any contract or agreement between CE Broker and such related organizations, as well as the books, documents and records of CE Broker and its related organizations, if any, which are necessary to verify the cost of the Services provided. CE Broker shall promptly advise Client of such request, and shall promptly provide to Client copies of any documents so provided. Neither Party shall be deemed to have waived any attorney-client or work-product privilege by virtue of this section.

18.2 Compliance With Laws.  The Parties intend that this Agreement will comply with all existing and future applicable laws, including state and federal anti-kickback laws, the Medicare/Medicaid Anti-Fraud and Abuse Statutes, the restrictions on Client by virtue of its tax-exempt status and any federal law relating to physician referrals. Without limiting the generality of the foregoing, CE Broker agrees to comply with all applicable data security and privacy laws, statutes and regulations (“Laws”), including applicable Laws relating to the security and privacy of personal information and personally identifiable information, each as defined under applicable law (“Personal Information”), in connection with the Services and handling of Client Data. If at any time, as the result of the enactment of a new statute, regulations, or otherwise, either Party receives a bona-fide written legal opinion concluding there is a substantial risk that, as a result of this Agreement, either Party does not comply with applicable law or that a Party would be legally precluded from billing a third-party payor for services ordered by a physician, then the Parties shall use good faith efforts to reform this Agreement in such a manner so that it complies with applicable law or does not preclude Client or its Affiliates from billing a third-party payor, as applicable. If, after the exercise of such good faith efforts for a period of at least thirty (30) business days, the Parties have not agreed on amendment(s) to this Agreement that resolve the legal issues referred to above, then the Party(s) whose receipt of a legal opinion triggered renegotiation may terminate this Agreement upon at least sixty (60) calendar days written notice to the other Party.

18.3 Excluded Provider.  CE Broker represents and warrants that neither it, nor any of its employees or other contracted staff (collectively referred to in this paragraph as “employees”) has been or is about to be excluded from participation in any Federal Health Care Program (as defined herein). CE Broker agrees to notify Client within five (5) business days of CE Broker’s receipt of notice of intent to exclude or actual notice of exclusion from any such program. The listing of CE Broker or any of its employees on the Office of Inspector General’s exclusion list (OIG website), the General Services Administration’s Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs (GSA website) for excluded individuals or entities, any state Medicaid exclusion list, or the Office of Foreign Assets Control’s (OFAC’s) blocked list shall constitute “exclusion” for purposes of this paragraph. In the event that CE Broker or any of its employees is excluded from any Federal Health Care Program or placed on the OFAC’s blocked list, it shall be a material breach and this Agreement shall immediately terminate without penalty to Client, unless Client elects in writing to continue this Agreement. For the purpose of this paragraph, the term “Federal Health Care Program” means the Medicare program, the Medicaid program, TRICARE, any health care program of the Department of Veterans Affairs, the Maternal and Child Health Services Block Grant program, any state social services block grant program, any state children’s health insurance program, or any similar program.

18.4 Discounts and/or Free Products.  CE Broker shall assist Client in complying with the reporting requirements of 42 C.F.R. §1001.952(h), regarding “safe harbor” protection for discounts under the Anti-Kickback Statute. CE Broker shall disclose to Client in this Agreement and on each invoice, or as otherwise agreed in writing, the amount of any discount or rebate. The statement shall inform Client, as appropriate, in a clear and simple manner of the amount of any discount or rebate so as to enable Client to satisfy its obligations to report such discount or rebate to Medicare.

19 Miscellaneous.

19.1 Modification & Waiver. These Terms shall not be amended or modified by the terms of any purchase order or other acknowledgement even though CE Broker may have accepted or signed such documents. No failure or delay by either Party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof, except as specifically provided herein.

19.2 Notice.  All notices, demands or consents given under this Agreement will be in writing and sent to CE Broker at the address set forth below and to Client at the address set forth the applicable Order Form, or at such other address as may be given from time to time by either Party to the other in writing, via: (i) first class, certified, or registered mail through the United States Postal Service; (ii) Federal Express; (iii) overnight courier; or (iv) electronic transmission by e-mail. All notices, demands or consents given under this Agreement will be deemed given when delivered personally, three (3) days after deposit in the mail (certified or registered mail), one (1) day after being sent (overnight courier), or the same day as sent (electronic transmission and facsimile) to the receiving Party at the address set forth in this Agreement or at such other address given by either Party to the other in writing from time to time.

 

If to CE Broker:     

CE Broker, Inc.

Attn: General Counsel

525 3rd Street North, Suite 105

Jacksonville Beach, Florida 32250

aaron@evercheck.com

                   

19.3 Entire Agreement.  These Terms, together with the Order Form, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and there are no warranties, representations and/or agreements between the Parties in connection with the subject matter hereof, except as specifically set forth or referred to herein. In the event of any conflict between these Terms and any Order Forms, the provisions of these Terms shall control.

19.4 Assignment.  Neither Party shall assign this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party’s consent, to any Affiliate or subsidiary, or in the event of a merger, acquisition, or sale of all or substantially all of its assets.

19.5 Governing Law.  The validity, construction and performance of the Agreement and the legal relations among the Parties to the Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, excluding that body of law applicable to choice of law.

19.6 Venue and Waiver of Jury Trial.  Any claim, cause, or action brought to enforce the Agreement shall be brought exclusively in Duval County, Florida, and not in any other venue. Client hereby consents to personal jurisdiction and venue therein and hereby waives any right to object to personal jurisdiction or venue.  The Parties also waive any right to trial by jury of any claims between them and/or arising from or related to this Agreement.

19.7 Attorneys’ Fees and Costs.  If any legal action or arbitration is necessary to enforce the terms of this Agreement, including any and all Statement(s) of Work, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs incurred in any such legal action or arbitration, in addition to any other relief to which that Party is otherwise entitled.

19.8 Severability.  In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement.  Such provision shall be deemed amended or reformed to the minimum extent necessary to conform to the requirements of the law so as to be valid and enforceable in light of the Parties’ intent as evidenced by the Agreement.  If such provision cannot be amended without materially altering the intent of the Parties, the tribunal having jurisdiction shall revise the provision in a reasonable manner to the minimum extent necessary to make it binding and enforceable.  If no such revision is possible, the Agreement shall be construed as if such provision had never been contained herein; provided that such provision shall be curtailed, limited, or eliminated only to the minimum extent necessary to remove the invalidity, illegality, or unenforceability, and the rest of the Agreement shall remain in full force and effect.

19.9 Relationship of the Parties.  CE Broker is an independent contractor under the Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties hereto.  Neither Party shall have any authority to enter into agreements of any kind on behalf of the other Party and neither Party shall have any power or authority to bind or obligate the other Party in any manner to any other third-party. The Agreement is not intended to, and shall not be construed to give any third party (by way of example and not limitation, any Employee) any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby.

19.10 Force Majeure.  Neither Party will be liable for any failure or delay in performance under this Agreement (except any obligation to make payment hereunder) which is due to any event beyond the reasonable control of such Party, including, without limitation, fire, explosion, unavailability or limited availability of utilities or raw materials, unavailability or limited availability of components or necessary third-party services, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.  In the event CE Broker excuses its performance of any of the requirements of this Agreement or otherwise invokes the provisions of this section, the payment provisions of this Agreement shall be suspended for an equal period of time only as to all unaccrued/unearned fees, charges, or amounts.

19.11 Agreement Drafted By All Parties.  The Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.

19.12 Captions.  The captions appearing at the commencement of the sections and subsections of the Agreement are descriptive only and for convenience and reference.  Should there be any conflict between any such caption and specific language within the section or subsection, the specific language of the Agreement shall control and govern in the construction of the Agreement.

19.13 Publicity.  Notwithstanding any other provision of the Agreement, Client consents to CE Broker’s use of Client’s name and service marks or trademarks to identify Client as a CE Broker client in CE Broker’s marketing, advertising and promotional materials, including on its website and in proposals submitted by CE Broker to prospective clients.

19.14 Survival.  The following provisions shall survive termination or expiration of the Agreement:  Fees, Expenses, and Payment, Proprietary Rights, Termination, Disclaimer of Warranties, Limitation of Liability, Confidentiality, Miscellaneous and any other provision which, by its nature, is intended to survive the termination or expiration of the Agreement.

20. Service Descriptions. A description of currently available Services is as follows. CE Broker reserves the right to revise the Services offerings at any time. Such revision may include new Services, changed scope or functionality of existing Services, or removal of Services.

20.1 EverCheck HR.  

(a) Employee License Verification. CE Broker will provide Client with daily automatic verification of licenses, credentials and registrations (“LCRs”), frequency dependent on the availability of third-party licensing entit(ies), accessible by Client at www.EverCheck.com, of Client’s Employees’ healthcare LCRs, which verification shall meet the primary source standards of The Joint Commission and DNV Healthcare, as well as monitoring of date-tracked LCRs, as applicable (“EverCheck HR”).  CE Broker’s Software performs verifications based on the publicly available third-party licensing entity(ies)’ records identified by Client.  In order to access the LCR verification Services, it is Client’s sole responsibility to submit to CE Broker an Employee data file, including any Employees of Client that Client wishes to track in a format accessible to, and compatible with, the Software.       

(b) EverCheck Wallet. CE Broker will provide an integration between EverCheck HR and CE Broker’s mobile and web application (“EverCheck Wallet”) which will allow Applicants and Employees to upload LCRs using a personal EverCheck Wallet account. Applicants and Employees will see the LCRs required for employment with Client and have the opportunity to submit those LCRs via the EverCheck Wallet application.  EverCheck will verify those LCRs which may be electronically verified.      

20.2 Positions Manager. CE Broker will provide Client with a tool to add its positions and the required licensure for those positions. Using this information, CE Broker will request the required LCRs directly from the Employee using the EverCheck Wallet application, if so enabled.      

20.3 EverCheck Prehire. CE Broker will create and maintain a report, accessible by Client at www.EverCheck.com, which sorts Applicants by status, number of active days, issues that have been identified in the LCR verification process using the same methodology as described in 20.1(a),     

(a) Positions Manager. CE Broker will provide Client with a tool to add its positions and the required licensure for those positions. Using this information, CE Broker will request the required LCRs directly from the Applicant during the onboarding process using the EverCheck Wallet application. CE Broker will identify any Applicants who do not satisfy the LCR requirements, as defined by Client within the Positions Manager application. 

20.4 Exclusions. CE Broker offers an exclusions verification service that performs a monthly search of Client’s Employees against the List of Excluded Individuals/Entities (LEIE) provided by the Office of Inspector General and GSA’s System for Award Management (SAM). This service includes a monthly report of possible name matches between the GSA and SAM exclusion lists and Client’s Employees and/or vendor list.

20.5 Manual Verifications. CE Broker provides the option of outsourcing any verifications that cannot be automated and must be performed manually. Through this manual process, LCRs that cannot be monitored through CE Broker’s proprietary Software will be manually verified at the frequency specified by the Client in writing. CE Broker, without any surcharge, will pass through any fees as imposed by an individual licensing entity for accessing the data pertaining to the verification of the Client’s Employees and Applicants.

21. Implementation. CE Broker will invoice Client for the implementation of Services (“Implementation”) provided for in each Order Form (the “Implementation Fee”), which invoice must be paid by Client to CE Broker within thirty (30) days following CE Broker mailing or electronically transmitting it to Client. The Implementation process commences at the “Implementation Kick-Off”, which is defined as the initial meeting between both Parties during which the CE Broker Implementation Team presents the initial project plan to Client. The Implementation Fee is nonrefundable. If Client terminates the Order Form at any time after the Implementation Kick-Off, CE Broker will invoice Client for the full Implementation Fee. Implementations of each Service are subject to their own respective Implementation Fees. Future Implementations pertaining to subsequent Order Forms, Change Orders, or requests to change the scope of the Implementation or to include additional Services, training, or travel will be subject to further Implementation Fees and associated costs. The Implementation Deliverables pertaining to each Service are outlined below:

21.1 EverCheck HR. 

(a) Systems interface. CE Broker will create an automated transfer of data between CE Broker and all Client systems that house relevant Employee information to reduce the amount of manual intervention required to update these Client systems with primary source data delivered by the Services. The systems interface includes:

(i) sFTP – CE Broker will establish a secure FTP site through which all files will be transferred. Encryption can be set up upon Client’s request.

(ii) Crosswalk – CE Broker will review all Client HRIS codes and identify whether the license is categorized as automated verification, manual verification, or date-tracked. CE Broker will perform a gap assessment to determine whether new license codes need to be created by the Client. Lastly, Client’s HRIS codes are mapped to correspond to CE Broker codes.

(ii) HRIS Inbound File – CE Broker will program the HRIS Inbound File according to Client’s specifications. This includes updates of license expiration and/or license status captured directly from the primary source by the Services on a daily basis.

(iv) LCR File – CE Broker will provide file specifications for the LCR file, which file will be programmed for delivery to sFTP by Client. The LCR file contains all licenses, certifications, and registrations that should be verified by the Services.

(v) System User File – CE Broker will provide file specifications for the System User File. This file determines which Client’s users will have access to the EverCheck platform and their respective permissions, such as employee data, application access, etc.

(vi) Image Files – On request, CE Broker can program delivery of most image files captured during the License Verification process. The images will be sent to a SFTP location specified by CE Broker. While Client may access the images both manually and automatically, Client is solely responsible for any work, programming or troubleshooting required to establish and maintain automatic retrieval.

(b) Data Audit. CE Broker uses multiple data points to primary source verify licenses and certifications. This includes verification using the license number, license type, and state. The data audit is a critical component of Implementation, as it ensures the integrity of the data, and thereby the Services, upon activation. During the audit phase, CE Broker will run license verification on the licenses being implemented and then manually review each license which has not been successfully verified by the Services to determine the cause of the error. With each license error that is manually reviewed, the Implementation Team will compile a report (an “Exception Report”) that will indicate the license errors and the appropriate course of action to correct the data for successful automated verification moving forward. Though initially labor-intensive, this stage of Implementation ensures the integrity of the Services upon activation and confirms the automated Service is capturing the necessary information to ensure compliance. It is the sole responsibility of the Client to correct any issues with Client Data identified through this audit from within the Client’s system of record. There are two sub-components of the data audit phase:

(i) Ensuring that the license codes are mapped one-to-one to each license type.

(ii) Isolating and addressing errors in Client Data.

(c) Configuring notifications. CE Broker allows the Client to customize the renewal notifications delivered to its managers and caregivers. In this stage of Implementation, Client will make critical decisions on the cadence and language to be used in these notifications. These notifications may also be customized based upon user role. Notifications will then be built within the EverCheck platform and tested for Client approval prior to activation of the Services. Change notification emails, though not customizable, may be enabled for system users during this stage of Implementation.

(d) Enable SSO (if applicable). Should Client wish to enable Single Sign On (SSO), CE Broker will install the necessary tokens to properly authorize users from Client’s Active Directory.

(22.2) EverCheck Wallet. EverCheck Wallet is an application with maximum Employee exposure across Client’s organization, and therefore the success of its Implementation is critical. CE Broker is committed to creating a positive user experience and overall impression of the Services by its users. As a result, EverCheck Wallet will be implemented only after EverCheck HR has been successfully activated, and Implementation must be scheduled on a date mutually approved by the Parties. Implementation will consist primarily of change management support to ensure proper education and expectations of the EverCheck Wallet application are introduced to all Employees and end-users.  Given the impact EverCheck Wallet has on the Employee population, any communications about EverCheck Wallet must be approved in advance by CE Broker to ensure accuracy, clarity and alignment of the Parties’ expectations. Implementation of EverCheck Wallet will take place over a period of four (4) weeks. Kick-off date is mutually agreed to by Client and CE Broker. The Implementation Fee for Wallet will be billed on the first day following the month in which Implementation of Wallet Services are commenced.

(a) Engagement Plan. CE Broker will develop and present a comprehensive change management engagement plan for Client’s transition to Wallet. The engagement plan will include guidance around training sessions and organizational communications for both managers and caregivers. Client will deliver to CE Broker all internal support workflows and communications to be distributed to its Employees regarding EverCheck Wallet for CE Broker’s review and approval. Within ten (10) days of receipt, CE Broker will review the provided support workflows and communications and provide recommendations to Client for revisions thereto. This will ensure that both Client and the EverCheck Wallet support team are aligned on support workflows so the EverCheck team will be able to provide proper guidance to Client’s users who contact it via support@evercheck.com. All proposed communications to Employees regarding EverCheck Wallet must be reviewed and approved by CE Broker prior to distribution by Client. 

(b) Audit and Configuration. Proper audit and configuration of the Client Data ensures the information presented to the end-user of EverCheck Wallet is clear and concise. This includes:

(i) Review of the HRIS Inbound File to ensure it contains email addresses for all Employees to receive Wallet invitations. Client will provide any missing emails. 

(ii) Confirmation of the licenses and certifications to be collected by CE Broker through EverCheck Wallet. CE Broker will map the Client-approved, user-facing license and certification descriptions and build the conversion program that translates the Client Data coming from the HRIS Inbound file to the Service-accepted format.

(iii) CE Broker will conduct a review of Client’s custom renewal reminder notifications sent to Employees and ensure all communications are in alignment with Wallet workflows.

(iv) CE Broker will activate Wallet system settings, generate access codes for Wallet users, and send welcome registration emails on the day the EverCheck Wallet Service is activated.

(c) Training. CE Broker will coordinate with the Client to schedule and conduct two (2) live webinar Wallet trainings, one (1) for HR/Administration, and one (1) for Managers/Supervisors. Client will ensure the required audience is in attendance at each training. Any requests for additional training, in-person training,, or rescheduling of a training made within seventy-two (72) hours of commencement thereof, will be subject to additional fees and costs, which expressly include any travel costs.

(d) EverCheck Prehire and Positions Manager. Implementation of Positions Manager & Prehire will take place over a period of sixteen (16) weeks. To ensure the success of this project, Positions Manager will be implemented after the successful Implementation of EverCheck HR. Accuracy and data integrity is critical to the successful rollout of the Positions Manager application. As such, Implementation will primarily consist of position mapping to the necessary LCR requirements. CE Broker is not responsible for identifying required licensure. Decisions around position requirements are made exclusively by Client. Client is solely responsible for providing CE Broker with its positions in a format acceptable by CE Broker. Kick-off date is mutually agreed to by Client and CE Broker. The Implementation Fee for Prehire will be billed on the first day following the month in which Implementation of Prehire is commenced.

(e) Date-Tracked Mapping. Licenses not verified by EverCheck will be considered date-tracked credentials. The naming conventions for date-tracked credentials are determined by Client. Client must provide CE Broker with the naming convention and issuing authority that it wishes to use for each respective credential. Subsequently, CE Broker will configure the EverCheck account with the naming convention identified by Client. Client will be trained on how to configure these credentials on an ongoing basis for successful account self-management after Implementation, as CE Broker will not be providing such account configuration post-Implementation. Any date-tracked credentials must be configured prior to the initial upload of positions.

(f) Library requirements. Library requirements allow Client to denote a singular code for a set of requirements that are commonly used. Client may identify common requirement sets (such as AHA signifying BLS or CPR or ACLS or PALS) and provide CE Broker with a list of the common requirement sets used in its positions. CE Broker will configure these as “Library Requirements” and train key stakeholders to manage these post-Implementation, as CE Broker will not be providing such management post-Implementation. Any Library Requirements must be built prior to the initial upload of positions.

(g) Positions. Client will provide CE Broker with a list of all its positions mapped to the LCR requirements in a format compatible with CE Broker’s Software. CE Broker will provide the relevant specifications and Client must adhere to the Specifications in order for positions to be successfully uploaded into Positions Manager. Uploads into Positions Manager are add-only, and therefore will only add new positions. Edits to existing positions must be made from within the Positions Manager application itself. After the successful upload of the positions, CE Broker will audit the positions and identify any which were rejected as part of the upload process, or unknown and have not been mapped to any LCR requirements. CE Broker will work with Client to resolve these issues and ensure that rejected positions are corrected and properly loaded, as well as assisting Client with defining the LCR requirements for any positions not previously defined. Through this process, Client will be trained to self-manage positions within Positions Manager on an ongoing basis, including training on how to identify rejected or unknown positions and the subsequent steps that need to be taken to resolve the issues, as CE Broker will not be providing such management post-Implementation.

(h) Systems interface. CE Broker will facilitate an automated transfer of data between CE Broker and all Client systems that house relevant Employee and Applicant information to reduce the amount of manual intervention required to update these Client systems with primary source data delivered by the Services. The systems interface includes:

(i) Employee Demographic File. The Employee Demographic File will take the place of the previously configured LCR File. Upon go-live, this file will identify all employees and the positions to which they are employed. As a result, the requirements defined by the position will determine which LCRs are to be verified by CE Broker through its Software. Once this file has been enabled, the LCR File may be disabled as it is no longer used to determine what LCRs are verified by CE Broker. Client is responsible for providing this file in the format specified by CE Broker. 

(ii) Candidate File. The Candidate File will include all candidates who are in the onboarding process and for whom Client wishes to initiate LCR verification. Candidate File will include the position to which the candidate has applied, which will determine the LCR’s to be solicited from the Applicant through EverCheck Wallet. Client is responsible for providing this file in the format specified by CE Broker. 

(iii) HRIS Inbound File. Any modifications required of the Inbound file will be done in Implementation. 

 

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