USE OF THE EMR/PM SERVICES, THE RCM SERVICES AND THE ONLINE SYSTEM OF INSYNC HEALTHCARE SOLUTIONS, A DELAWARE CORPORATION (“INSYNC HCS”) IS CONDITIONED UPON THE COMPLIANCE AND ACCEPTANCE OF THESE TERMS AND CONDITIONS BY THE PRACTICE AND ITS USERS, AS DEFINED HEREIN. THESE TERMS APPLY TO ALL EXISTING CUSTOMERS OF INSYNC HCS AND SHALL SUPERSEDE ANY TERMS AND CONDITIONS PREVIOUSLY ACCEPTED BY THE EXISTING CUSTOMERS OF INSYNC HCS.

Last Update: May 4, 2022

DEFINITIONS

“Agreement” refers to these Terms and Conditions, which are incorporated into the INSYNC HCS Software and Services Term Sheet (the “INSYNC HCS Term Sheet”).

“BAA” means the business associate agreement attached hereto as Exhibit A and incorporated herein and made a part of this Agreement.

“EMR/PM Services” means the electronic medical record/practice management services offered by INSYNC HCS.

“EMR/PM Value Added Services” means certain third party applications, or third party services, offered by INSYNC HCS to Provider to enhance the EMR/PM Services.

“Implementation Scope” means the scope of services and project duration, described in the INSYNC HCS Term Sheet, for the Practice implementation. The Implementation Scope will be determined by INSYNC HCS based on the scope it deems appropriate for an organization with Practice’s size and lines of business.

“INSYNC HCS Support” means the support helpline for the Practice and Users. Requests for support will be given a case number to track the request for assistance. The phone number is 1-877-346-7692 and email is emrsupport@insynchcs.com.

“INSYNC HCS System” means the web based INSYNC HCS software and online system designated on one or more INSYNC HCS Term Sheets or Service Change Forms to be provided to Practice by INSYNC HCS hereunder, including any Product Enhancements and Updates relating thereto that may be provided hereunder or thereunder, and any derivative works of the foregoing.

“Practice” means the healthcare practice that executed the INSYNC HCS Term Sheet which incorporates these Terms and Conditions by reference and the Users. The Practice is specifically referred to as Customer within the INSYNC HCS Term Sheet.“Practice Data” means any of Practice’s information, documents or electronic files that are provided to INSYNC HCS hereunder.

“Product Enhancements” means any new features, new modules, or other extensions or modifications of the INSYNC HCS System requested by Practice and developed by INSYNC HCS pursuant to a Service Order Form or Service Change Form. “Product Enhancements” does not include new features, new modules, or extensions or modifications of the INSYNC HCS System to the extent incorporated into a general Update.

“Protected Health Information” (“PHI”) shall have the meaning given to such term at 45 C.F.R. §160.103, limited to the information that INSYNC HCS creates, receives, maintains or transmits from or on behalf of Practice.

“Provider” means any healthcare professional or individual who is recognized under HIPAA as administering or delivering direct patient care and who CMS identifies as requiring a National Provider Identification (NPI) number for payment or reimbursement. This typically includes (but is not limited to): physicians, physician assistants, midwives, nurse practitioners, nurse anesthetists, dentists, denturists, chiropractors, clinical social workers, psychologists, psychiatrists, physical therapists, athletic trainers.

“Required by Law” shall have the meaning given to such term at 45 C.F.R. §164.103.

“RCM Services” means the revenue cycle management services that INSYNC HCS is providing to the Practice.

“Secretary” shall mean the Secretary of the Department of Health and Human Services or his/her designee.

“User(s)” means the Providers, Employees, Contractors and other Agents of a Practice who have been authorized by the Practice to use the EMR/PM Services and INSYNC HCS System.

“Update” means any patch, bug, fix, release, version, modification or successor to the INSYNC HCS System.

TERMS AND CONDITIONS

These Terms and Conditions are part of and fully incorporated by reference into the INSYNC HCS Term Sheet that has separately been agreed to by the Practice and INSYNC HCS (“INSYNC”).

INSYNC HCS and the Practice will each be known as a “Party” and will collectively be known as the “Parties”. In the event of a conflict between the terms of the INSYNC HCS Term Sheet and this Agreement, the terms of this Agreement shall control.

BY REQUESTING PERMISSION (OR CONTINUED PERMISSION) TO ACCESS AND/OR USE THE INSYNC HCS SYSTEM AND/OR THE EMR/PM SERVICES, THE PRACTICE AGREES TO ACCEPT AND BE FULLY BOUND BY THESE TERMS AND CONDITIONS.

INSYNC HCS RESERVES THE RIGHT TO REVISE THESE TERMS AND CONDITIONS AT ANY TIME. BY ACCESSING AND/OR USING THE INSYNC HCS SYSTEMS AND/OR THE EMR/PM SERVICES, THE PRACTICE AGREES TO ACCEPT AND BE FULLY BOUND BY ANY SUCH REVISIONS WHEN THEY BECOME EFFECTIVE, WHETHER OR NOT THE PRACTICE HAS ACTUALLY REVIEWED THEM. IF THE PRACTICE DOES NOT AGREE TO ACCEPT AND BE FULLY BOUND BY THIS AGREEMENT, THE PRACTICE SHOULD NOT AND IS EXPRESSLY PROHIBITED FROM HAVING ANY USERS ACCESS THE INSYNC HCS SYSTEMS AND/OR USE THE INSYNC HCS SERVICES.

1. INSYNC HCS Services

1.1 INSYNC HCS shall provide the EMR/PM Services and, if applicable, the RCM Services in accordance with these Terms and Conditions and the INSYNC HCS Term Sheet. If Practice has subscribed for the RCM Services, then the additional terms set forth on Exhibit B apply.

1.2 INSYNC HCS may offer the Practice the ability to purchase EMR/PM Value Added Services. In addition, INSYNC HCS or select third party providers (through the EMR/PM Services) may offer links to other websites, resources, third-party applications or services which the Practice may purchase. INSYNC HCS does not provide any warranties with respect to any such EMR/PM Value Added Services whether or not such EMR/PM Value Added Services are offered or designated by INSYNC HCS as “certified,” “approved,” “recommended” or otherwise, and whether or not the EMR/PM Value Added Services may be accessible from within the EMR/PM Services. Any purchase by a Practice of any EMR/PM Value Added Services is solely between the Practice and the applicable third party.

1.3 INSYNC HCS is not responsible for the availability or the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of any EMR/PM Value Added Services that the Practice may purchase or connect to through the EMR/PM Services, or any descriptions, promises or other information related to the foregoing. If the Practice orders or enables an EMR/PM Value Added Service for use with the EMR/PM Services, the Practice agrees that INSYNC HCS may allow such third party providers to access the Practice’s data or information as required for the interoperation of such EMR/PM Value Added Services with the EMR/PM Services, and any exchange of data or other interaction between Practice and a third party provider is solely between the Practice and such third-party provider. INSYNC HCS shall not be responsible for any disclosure, modification or deletion of data or information resulting from any such access provided to EMR/PM Value Added Services. No purchase of EMR/PM Value Added Services is required to use the EMR/PM Services.

1.4 The EMR/PM Services being provided by INSYNC HCS primarily consist of the sale of a software product license to the Practice. As such, INSYNC HCS shall not be responsible in any manner for providing training services to the Practice or any of its employees, contractors, or Providers as related to the billing, collection, or adjustments for any medical services provided by the Practice to its patients. This includes but is not limited to INSYNC HCS not having any responsibility for the Practice’s workload, including charting. It is the sole responsibility of the Practice to ensure that its billing staff has the adequate training for billing the Practice’s medical services and INSYNC HCS shall have no responsibility in this regard unless the Practice has specifically hired INSYNC HCS to provide RCM Services pursuant to the executed INSYNC HCS Term Sheet between the Practice and INSYNC HCS.

1.5 Under no circumstances shall INSYNC HCS be held responsible or liable for any amounts of prescription medication prescribed by either the Practice or any Provider whether such prescribed amount is over or under the limits set by either the DEA or the Practice. The Practice and any Provider shall be solely responsible and liable for any amounts they prescribe and INSYNC HCS expressly disclaims all liability in this regard as INSYNC HCS has no control over the amounts which are prescribed by the Practice or any Provider. It should be noted by the Practice that the Suboxone Patient Count Tracker is used as a tool to help prevent over-prescription of medication but does not explicitly prevent the Practice or any Provider from prescribing amounts of prescription medicines which are over DEA limits or limits set by the Practice.

2. Practice Responsibilities

2.1 The Practice is responsible for notifying INSYNC HCS of the number of Providers within the Practice. The Practice must notify INSYNC HCS within five (5) days of a Provider leaving the Practice or a new Provider joining the Practice by calling INSYNC HCS Support. The Practice will not be able to add or delete a Provider without contacting INSYNC HCS Support and providing the name of the Provider to be deleted or added.

2.2 The Practice is bound by the terms and conditions of this Agreement, the Business Associate Agreement, and the INSYNC HCS Term Sheet. It is the Practice’s responsibility to ensure that each User has reviewed this Agreement and understands the applicable terms and conditions.

3. Compensation

3.1 The Practice will pay all applicable fees, costs and charges (the “EMR/PM Fees”) associated with the EMR/PM Services and such EMR/PM Fees will be in accordance with the INSYNC HCS Term Sheet.

3.2 The Practice agrees that all EMR/PM Fees, including any applicable taxes, for which it is responsible, will be debited from a bank account, charged to a credit card or paid by check. FOR BANK DEBIT OR CREDIT CARD PAYMENT, THE PRACTICE HEREBY AUTHORIZES INSYNC HCS TO DEBIT THE BANK ACCOUNT OR CHARGE THE CREDIT CARD, AS THE CASE MAY BE, THAT HAS BEEN DESIGNATED BY THE PRACTICE IN ACCORDANCE WITH THE SIGNED CREDIT CARD/ACH AUTHORIZATION FORM, THE TERMS OF WHICH FORM ARE EXPRESSLY INCORPORATED HEREIN.INSYNC HCS shall charge the Practice’s bank debit or credit card the upfront EMR/PM Fees for implementation at the time the Practice executes the INSYNC HCS Term Sheet. INSYNC HCS shall charge the Practice’s bank debit or credit card the monthly EMR/PM Fees on or around the first business day of each month during the term of this Agreement. The Practice may be assessed additional fees and costs if the Practice’s bank debit or credit card are declined for any reason.

3.3 For payments by check, INSYNC HCS shall invoice the Practice the monthly EMR/PM Fees as listed by the Practice’s in executed INSYNC HCS Term Sheet. The invoice shall be emailed to the Practice at the email address listed on the Practice’s executed INSYNC HCS Term Sheet. Such invoice shall be due and payable by the Practice within twenty (20) days of the date thereof. Invoices not paid when due shall accrue late payment charges from the day on which payment was due until the day on which it is paid. Late payment charges shall be computed as the lesser of the rate of one and a half percent (1.5%) per month calculated on a daily basis or the highest rate allowed by law. The Practice may be assessed additional fees and costs if the Practices check is returned due to insufficient funds.

3.4 INSYNC HCS shall have the right to suspend the Practice’s access to any or all INSYNC HCS Services in the event any amounts due to INSYNC HCS by the Practice are overdue beyond thirty (30) days and until such time as the Practice is current on its account. INSYNC HCS reserves the right to charge the Practice a Reactivation Fee if the Practice’s access has been suspended under this provision. In addition, the Practice shall be responsible for all fees and costs of collection incurred by INSYNC HCS related to unpaid amounts.

THE PRACTICE HAS NO RIGHT TO THE REFUND OF ANY EMR/PM FEES PAID TO INSYNC HCS AS RELATED TO EMR/PM SERVICES OR EMR/PM VALUE ADDED SERVICES PROVIDED UNDER THIS AGREEMENT.

3.5 If the Practice has financed the purchase of the INSYNC HCS EMR/PM License through an INSYNC HCS approved lending partner, INSYNC HCS shall have the right to suspend the Practice’s access to any or all INSYNC HCS Services in the event any amounts due to the lending partner are overdue beyond sixty (60) days and until such time as the Practice is current on its account with lending partner.

3.6 INSYNC HCS reserves the right to increase the EMR/PM Fees as listed on the INSYNC HCS Term Sheet after the Practice’s first year term. After the Practice’s first year term, if INSYNC HCS increases the EMR/PM Fees by a sum greater than five percent (5%) per year, the Practice shall have the ability to terminate this Agreement and the EMR/PM Services. If the Practice wishes to terminate this Agreement and the EMR/PM Services due to an applicable fee increase it must provide written notice of termination within thirty (30) days of receiving the EMR/PM Fee increase notice. If the Practice fails to provide timely notice, it waives the right to terminate due to a fee increase.

3.7 Since a portion of the Practice’s EMR/PM Fees are determined based on the number of Providers within the Practice, INSYNC HCS reserves the right to audit the Practice’s activity to ensure that it has reported to INSYNC HCS the proper number of Providers within the Practice (and to ensure that the Practice is paying the proper EMR/PM Fees). If INSYNC HCS wishes to audit a Practice, INSYNC HCS is responsible for all costs associated with the audit, unless the audit indicates a shortage of 5 percent (5%) or more between the total EMR/PM Fees the Practice paid to INSYNC HCS during the twelve (12) months prior to the audit compared to the total EMR/PM Fees the Practice should have paid to INSYNC HCS during the twelve (12) months prior to the audit. If there such a shortage, the Practice can be required to pay for all fees and costs associated with the audit. If an audit indicates a shortage, the Practice will pay the shortage to INSYNC HCS within ten (10) days of conclusion of the audit.

3.8 A dispute of invoice by Practice must be made to INSYNC HCS in writing within 20 days of the date thereof and all undisputed amounts on said invoice shall be timely paid. No disputes of invoices by Practice will be considered by INSYNCH HCS if not made in writing within the time period set forth above and Practice will be obligated to pay in full all invoices not so disputed.

4 . Term and Termination.

4.1 The EMR/PM Services shall commence on the Effective Date. The term of this Agreement shall be the specific time period provided on the INSYNC HCS Term Sheet, unless terminated earlier as provided herein. Thereafter, this Agreement shall automatically renew for additional one (1) year terms or as otherwise set forth in the INSYNC HCS Term Sheet, unless either Party provides the other Party with written notice of its intent not to renew no less than (a) ninety (90) days prior to the end of the then-current term for renewal terms of one (1) year and (b) thirty (30) days prior to the end of the then-current term for renewal terms of thirty (30) days. Additionally, and for avoidance of doubt, a notice of non-renewal from Practice concerning an automatic renewal term of thirty (30) days shall be effective and terminate this Agreement on the last day of the month following the month in which the notice was provided by Practice to INSYNC HCS.

4.2 Either Party may terminate this Agreement immediately for cause without liability or penalty of any kind in the event of the material breach or default of any of the terms or provisions of this Agreement by the other Party, provided that such breach or default is not cured within thirty (30) days after written notice thereof.

4.3 In the event of any legislative or regulatory change or determination, whether federal or state, that causes this Agreement or the services contemplated herein to no longer comply with applicable law, or that has or would have a material adverse impact on either Party hereto in connection with the performance of this Agreement, or a change in any third-party payer reimbursement system (including Medicare and Medicaid) which materially affects the reimbursement either Party may receive as a result of this Agreement, and the Agreement cannot be modified to bring it within the law after a period of 90 days of good faith negotiation, then this Agreement may be terminated immediately by either Party upon written notice.

4.4 Upon the occurrence of any of the following events, INSYNC HCS shall have the right, at its option, to terminate this Agreement for cause immediately without liability or penalty of any kind:

4.4.1 The Practice repeatedly fails to compensate INSYNC HCS in a timely manner and in accordance with the terms of this Agreement or repeatedly fails to cooperate with INSYNC HCS and/or perform the responsibilities set forth in this Agreement.

4.4.2 The Practice fails to pay INSYNC HCS any delinquent amounts owed within 10 days of written notice by INSYNC HCS specifying the amounts owed.

4.4.3 The Practice or any User violates Section 5 of this Agreement.

4.4.4 If voluntary or involuntary bankruptcy, receivership, insolvency, dissolution, or assignment of assets for the benefit of creditors proceedings are commenced against the Practice and not dismissed within sixty (60) days.

4.4.5 If any right of the Practice under this Agreement is subject to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency

4.4.6 If information given by the Practice with respect to its size, type, specialty, or configuration is substantially inaccurate or incomplete.

4.5 In the event that the Practice terminates this Agreement prior to the end of the current term and termination is not made pursuant to Sections 3.5, 4.2, 4.3, or 4.6 (collectively the “Exempt Sections”), the Parties agree that the actual damages likely to result from termination are difficult to estimate and difficult for INSYNC HCS to prove. The Parties agree that in the event of early termination by the Practice except pursuant to an Exempt Section, the Practice agrees to pay INSYNC HCS an Early Termination Fee equal to the higher of 1.5 times the total of the monthly EMR/PM Fees to be paid by the Practice for the remaining months left in the current term; or the average monthly EMR/PM Fees paid during the preceding six months times the remaining months left in the current term. The Parties intend that the Early Termination Fee serve as Liquidated Damages to compensate INSYNC HCS for the Practice’s early termination, and the Parties do not intend for it to serve as punishment for any such breach by the Practice.

4.6 The Practice may terminate this Agreement and use of the INSYNC HCS Services if any revision by INSYNC HCS to these Terms and Conditions materially and adversely affect the services that the Practice receives, provided that the Practice give such notice within ten (10) days after the Practice is first informed of such revision, determined by the date on which the first User for the Practice accesses the INSYNC HCS System.

4.7 Upon termination or expiration in accordance with the terms set forth herein, the Practice will immediately cease use of the EMR/PM Services and will immediately pay INSYNC HCS all compensation otherwise due and payable to INSYNC HCS in accordance with the terms of this Agreement through the effective date of termination or expiration.

4.8 To the extent that Practice has not obtained an electronic copy of its Practice Data through any export functionality of the INSYNC HCS System and requests an electronic copy of its Practice Data within 30 days of termination, then INSYNC HCS shall send Practice an electronic copy of its Practice Data in a structured file export within 30 days of receipt of the request and Practice shall pay INSYNC HCS a fee for such export of $250 per hour.

5.  INSYNC HCS Systems Access: License Grant.

5.1 Access to the INSYNC HCS Systems is provided solely to facilitate access to the EMR/PM Services in connection with the Practice’s business operations. The Practice’s license to access the INSYNC HCS Systems is on a limited, revocable, non-exclusive, non-transferable basis only during the term of this Agreement. Practice agrees that it will access the INSYNC HCS Systems only to use the INSYNC HCS EMR/PM Services for its own internal use in accordance with the terms and conditions of this Agreement.

5.2 The Practice will not: (i) access or use the INSYNC HCS Systems except through its own authorized Users acting within the scope of their service to the Practice; (ii) use the INSYNC HCS Systems or any part thereof for any purpose other than for accessing and using the INSYNC HCS EMR/PM Services in accordance with this Agreement; (iii) sell, resell, transfer, sublicense, rent, lease, convey, encumber, copy, modify, distribute, publish, exhibit, transmit, provide access to, or provide use of the INSYNC HCS System to any third party (other than its own authorized Users acting within the scope of their service to the Practice) nor use it or allow it to be used in any public system, public electronic bulletin board, or multiple computer or user arrangement or network that includes access by any third party (other than its own authorized Users acting within the scope of their service to the Practice); (iv) translate, convert to another programming language, decompile, derive specifications from, reverse engineer, reverse compile, record, disassemble or create derivative works based on the INSYNC HCS Systems for any purpose; (v) export the INSYNC HCS System outside of the United States of America or make use of the INSYNC HCS System at any location other than the geographic area(s) identified by the Practice as the Practice’s office location(s) when purchasing the INSYNC HCS Services or as such other location(s) as INSYNC HCS consents to such use; (vi) use the INSYNC HCS Systems in a manner that delays, impairs or interferes with system functionality for others or that compromises the security or integrity of any data, equipment, software or system input or output; (vii) use the INSYNC HCS Systems or the EMR/PM Services for any unlawful purpose or to mislead or to harass anyone; (viii) take any action or omit to take any action constituting information blocking as defined in 42 U.S.C. § 300jj-52 and regulations thereunder in connection with this Agreement; or (ix) violate or attempt to violate the security of the INSYNC HCS Systems or any INSYNC HCS server, database or network infrastructure, including but not limited to, by: (a) accessing data not intended for Practice; (b) logging into an account Practice is not authorized to access, (c) testing, “hacking”, scanning or probing the INSYNC HCS Systems to identify or detect any vulnerabilities, or (d) attempting to interfere with other users’ use of the INSYNC HCS Systems.

5.3 Use of or access to the INSYNC HCS Systems and the EMR/PM Services not in accordance with this Agreement is strictly prohibited. Permission to access or use the INSYNC HCS System and/or the INSYNC HCS Services may be limited or suspended immediately in INSYNC HCS’s discretion if this Section 5 is violated.

6.  INSYNC HCS Copyright

6.1 Except for the limited right to access and/or use the INSYNC HCS Systems and/or INSYNC HCS EMR/PM Services subject to the terms and conditions contained herein, this Agreement does not confer on or vest in the Provider a license in, ownership of or interest in the INSYNC HCS Systems or the INSYNC HCS EMR/PM Services. The Provider acknowledges and agrees that the INSYNC HCS Systems and the INSYNC HCS EMR/PM Services and all parts of them are protected by copyrighted material owned exclusively by INSYNC HCS and all right, title and interest in any aspect of them and all edits, improvements, additions, modifications and derivative works prepared from or relating to them are and will remain the exclusive property of INSYNC HCS. INSYNC HCS will have the unrestricted and permanent right to use and implement all ideas, advice, recommendations or proposals of the Provider with respect to the INSYNC HCS EMR/PM Services in any manner and in any media.

6.2 All the content, design and supporting documentation of the INSYNC HCS Systems is protected by copyright laws and international treaty provisions. Provider may not copy the written materials, images, trademarks, and/or logos set forth within or accompanying the INSYNC HCS Systems without INSYNC HCS’s prior written authorization. The Provider will not remove, change or deface any copyright notice or proprietary markings in or on any part of the INSYNC HCS Systems. The Provider acknowledges that the content and design of the INSYNC HCS Systems and the INSYNC HCS EMR/PM Services contain trade secrets proprietary to INSYNC HCS, the American Medical Association, and such other third party licensors incorporated into the INSYNC HCS EMR/PM Services and that the loss of such trade secret status would cause irreparable damage to INSYNC HCS for which monetary damages may not adequately compensate either INSYNC HCS, the American Medical Association, or such other third party licensors incorporated into the INSYNC HCS EMR/PM Services. The Provider agrees to take at least the same precautions to maintain the confidentiality of this information as it does with respect to its own proprietary information, but in no case shall such precautions be less than those considered objectively reasonable in light of the nature of such information

7.  Implementation

7.1 Project Plan. Upon execution of the INSYNC HCS Term Sheet, the parties shall create and agree upon a plan in writing that is consistent with the Implementation Scope for completion of the project (the “Project Plan”). INSYNC HCS and Practice shall develop and implement the INSYNC HCS System in accordance with this Project Plan.

7.2 Service Changes. Practice may request changes to the INSYNC HCS Term Sheet or Project Plan by delivering a written statement of the desired changes (a “Service Change Request”). Upon receipt of the Service Change Request, if INSYNC HCS is willing to consider implementing the changes, INSYNC HCS shall prepare a written statement including any estimated impact of the requested change on costs and on the Project Plan (a “Service Change Form”). Once a Service Change Form has been executed by authorized representatives of both parties, INSYNC HCS shall develop or implement the INSYNC HCS System in accordance with the original INSYNC HCS Term Sheet as amended by the Service Change Form, and the executed Service Change Form will be deemed an amendment to, and a part of, the INSYNC HCS Term Sheet to which it relates. For further clarification, INSYNC HCS is not obligated to implement changes set forth in a Service Change Form other than pursuant to a Service Change Form executed by representatives of both parties.

7.3 Adjustments for Practice Delays. The Implementation Scope and Project Plan are based on the determination by INSYNC HCS of best practices for a successful implementation. If Practice wishes to delay the implementation due to no fault of INSYNC HCS, INSYNC HCS may begin invoicing Practice as set forth in the INSYNC HCS Term Sheet. Practice acknowledges that if an implementation is delayed, INSYNC HCS may redeploy the current project team to another implementation and cannot guarantee the same team will be available to return to the project once it resumes. Additionally, if through no fault of INSYNC HCS, the timeline exceeds what was specified in the Implementation Scope, INSYNC HCS will prepare a Statement of Work for the remaining time required and Practice shall pay for the additional hours at the then current time and materials rates.

• Product Enhancements.

7.4.1. Practice may request Product Enhancements, and Practice shall pay for the development of any Product Enhancements that INSYNC HCS agrees to develop. INSYNC HCS is not obligated to develop any Product Enhancements except pursuant to a mutually-agreed upon INSYNC HCS Term Sheet, Service Change Form or Statement of Work specifying the Product Enhancements to be developed and any applicable pricing, if other than standard time and materials.

7.4.2. Upon execution of a INSYNC HCS Term Sheet, Service Change Form or Statement of Work specifying Product Enhancements, the parties shall adhere to the process set forth in this Section for designing, developing, implementing, and testing the Product Enhancements.

7.4.3. At no charge to Practice, INSYNC HCS shall modify the INSYNC HCS System to implement any changes mandated by Federal regulatory changes that are applicable to all customers.

7.4.4. To the extent that Practice requires a modification to the INSYNC HCS System to implement changes mandated by a payor or MCO, that modification will be treated as a Product Enhancement for all affected customers, and INSYNC HCS shall provide that Product Enhancement at its then current time and materials rates, and Practice and all other customers affected by that same change shall pay an equal pro rata portion of the total cost.

8.  Data Disclaimer.

The Practice acknowledges that there is data available to it through the INSYNC HCS Systems and use of the INSYNC EMR/PM Services that has been received by INSYNC HCS from Payers and other third party sources (“Data”). INSYNC HCS DOES NOT ASSUME ANY RESPONSIBILITY OR, WARRANT, GUARANTEE OR VERIFY THE ACCURACY OR RELIABILITY OF THE DATA. The Practice’s reliance upon the Data obtained by it through the INSYNC HCS Systems and/or INSYNC EMR/PM Services is solely at the Practice’s own risk.

Furthermore, INSYNC HCS is not responsible for errors, damages or injury relating to informational inaccuracies supplied by Practice or causes beyond INSYNC HCS’s direct control. In the event of an error or omission caused directly by INSYNC HCS, INSYNC HCS will make best efforts to correct the error or omission, as the case may be, as soon as possible (and in no event, start the correction no greater than 48 hours after identification of error or omission). Practice shall use its reasonable efforts to coordinate with INSYNC HCS and assist with the correction of such error or omission.

9.  Registration and Practice Contact.

9.1 The Practice agrees in order to access and/or use the INSYNC HCS Systems and/or the EMR/PM Services, the Practice has in the past provided, or upon activation will provide, email and facsimile contact information to enable INSYNC HCS to communicate with the Practice concerning the INSYNC HCS EMR/PM Services currently being provided to the Practice, together with marketing communications concerning other products and services offered by INSYNC HCS from time to time.

The Practice’s acceptance of this Agreement and any continued access of the INSYNC HCS Systems and/or use of the INSYNC HCS EMR/PM Services constitutes the Practice’s retroactive and prospective express consent to any such email and/or facsimile communications from INSYNC HCS; provided, however, the Practice may at any time “opt-out” of receiving future email and/or facsimile marketing communications from INSYNC HCS on any or all facsimile numbers or email addresses by contacting INSYNC HCS at 877-246-8484 or sending an opt-out request to INSYNC HCS at 8401 Benjamin Road, Suite F, Tampa, FL 33634 or emailing an opt-out request to emrsupport@insychcs.com.

In the event that the Practice is already accessing and/or using the INSYNC HCS Systems and/or INSYNC HCS EMR/PM Services, the Practice, on behalf of itself and its Users, principals, shareholders, members, owners, directors, hereby unconditionally and absolutely waives, releases and discharges any and all suits, causes of action and claims of any type that the Practice may have, known or unknown, arising from or related to any and all past marketing communications to the Practice and any and all alleged violations of (i) the United States of America CAN-SPAM Act of 2003 or any law amendatory thereof; (ii) the United States of America Telephone Consumer Protection Act (TCPA) of 1991 or any law amendatory thereof; or (iii) any other state or federal ordinance, regulation or statute relating to communicating, distributing, publishing, sending or transmitting of content, information or material. The Practice acknowledges and agrees that such waiver and release is a material consideration for its continued access to and use of the INSYNC HCS Systems and/or the INSYNC HCS EMR/PM Services and this provision is to be read to afford INSYNC HCS the broadest protection permitted by law.

10.  Independent Contractor

Neither INSYNC HCS nor any person performing services hereunder shall be deemed by this Agreement an agent or employee of Practice. The services hereunder of INSYNC HCS and its employees and/or others shall be those of an independent contractor. It is further understood that nothing in this Agreement shall be construed to create a joint venture, partnership, association or other obligation or like relationship between the Parties.

11. Access to Records; Disclosure of Records.

The Parties to this Agreement, until the expiration of seven (7) years subsequent to the furnishing of Services under this Agreement, shall make available upon written request of the Secretary of the Department of Health and Human Services, the U.S. Comptroller General, or the Secretary’s or Comptroller’s delegate, or any of their duly authorized representatives this Agreement, and the books, documents, and records of the Parties that are necessary to certify the nature and extent of the costs of the services provided under this Agreement. In the event that either Party, or its successor or assigns, is requested to provide or disclose any books, documents or records relevant to this Agreement for the purpose of an audit or investigation, the Party subject to the request shall notify in writing, to the extent permitted by law, the other Party of the nature and scope of such request and shall make available, to the extent permitted by law, to the other Party, upon request, all such books, documents or records. The provisions of this paragraph shall survive the termination of this Agreement.

12 . Compliance with Law and Corporate Compliance Programs.

If the performance by either Party of any provision of this Agreement is or becomes in the future a violation of any statute or regulation or otherwise is deemed illegal, the provision(s) of this Agreement affected thereby shall be amended to remove or modify the terms that are in violation of laws or regulations so that both Parties are in compliance with applicable laws and regulations.

13.  Indemnification

13.1 THE PRACTICE ACKNOWLEDGES THAT THE INSYNC HCS SYSTEMS AND THE EMR/PM SERVICES ARE SUBJECT TO POTENTIAL MISUSE BY USERS. THEREFORE, THE PRACTICE SHALL INDEMNIFY AND HOLD INSYNC HCS COMPLETELY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, OR LIABILITY (INCLUDING ALL COSTS, EXPENSES AND REASONABLE ATTORNEY’S FEES IN DISPOSING OF AND DEFENDING ANY SUCH CLAIMS, DEMANDS OR LIABILITY) ARISING OUT OF ANY ACTION OR INACTION OF A USER, EXCEPT TO THE EXTENT A RESULT OF INSYNC HCS’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNIFICATION PROVISION IS TO BE READ TO AFFORD INSYNC HCS THE BROADEST PROTECTION PERMITTED BY LAW.

13.2 THE PRACTICE HEREBY AGREES TO INDEMNIFY AND HOLD INSYNC HCS HARMLESS FROM AND AGAINST ANY CLAIMS, LOSSES, COSTS, DAMAGES, LIABILITIES, JUDGMENTS, SETTLEMENTS OR REGULATORY ACTIONS, INCLUDING COSTS, FINES, EXPENSES AND REASONABLE ATTORNEYS’ FEES ARISING FROM OR IN ANY MANNER RELATING TO ACTIONS BROUGHT BY A USER AGAINST INSYNC HCS REGARDING THE INSYNC HCS SYSTEMS AND/OR THE EMR/PM SERVICES EXCEPT TO THE EXTENT THE CLAIM ARISES FROM INSYNC HCS’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNIFICATION PROVISION IS TO BE READ TO AFFORD INSYNC HCS THE BROADEST PROTECTION PERMITTED BY LAW.

13.3 THE PARTIES AGREE THAT THE OBLIGATIONS CONTAINED WITHIN THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

14. Warranties

14.1 INSYNC HCS warrants that: (i) no contractual obligations exist that would prevent INSYNC HCS from entering into this Agreement; (ii) it has the requisite authority to execute, deliver, and perform its obligations under this Agreement; and (iii) it will comply with all regulatory requirements applicable to EMR/PM Services and the INSYNC HCS System.

14.2 INSYNC HCS further warrants that in the event of an error or omission caused directly by INSYNC HCS, INSYNC HCS will use reasonable efforts to attempt to timely correct the error or omission. The Practice shall use its reasonable efforts to timely report errors or omissions to INSYNC HCS Support.

14.3 The Practice represents and warrants that: (i) no contractual obligations exist that would prevent the Practice from entering into this Agreement; (ii) it has the requisite authority to execute, deliver, and perform its obligations under this Agreement; (iii) it will comply with all regulatory requirements and these Terms and Conditions applicable to its use of EMR/PM Services, RCM Services (if applicable), and the INSYNC HCS System, and its operations as a healthcare provider; and (iv) all of Practice’s contracts and arrangements with referral sources, if any, comply with all applicable statutes and regulations;

14.4 INSYNC HCS DOES NOT GUARANTEE THE COLLECTION OF AMOUNTS DUE TO PRACTICE. EXCEPT AS OTHERWISE EXPRESSLY AND SPECIFICALLY WARRANTED IN THIS AGREEMENT, ALL PRODUCTS AND SERVICES ARE PROVIDED ‘AS IS’. THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE PARTIES. INSYNC HCS DOES NOT REPRESENT THAT THE INSYNC HCS SYSTEM OR THE EMR/PM SERVICES WILL MEET THE PRACTICE’S OR A PROVIDER’S REQUIREMENTS OR THAT THE OPERATION OF THE INSYNC HCS SYSTEM OR THE INSYNC HCS EMR/PM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE PRACTICE ACKNOWLEDGES THAT IT HAS INDEPENDENTLY EVALUATED THE INSYNC HCS SYSTEM AND THE INSYNC HCS EMR/PM SERVICES AND THEIR APPLICATION TO MEET THE NEEDS OF THE PRACTICE AND THE NEEDS OF THE PROVIDER’S WITHIN THE PRACTICE. INSYNC HCS DISCLAIMS, AND THE PRACTICE HEREBY EXPRESSLY WAIVES, ALL OTHER REPRESENTATIONS, CONDITIONS, OR WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY CLAIMS ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. THE PRACTICE MAY NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ON BEHALF OF INSYNC HCS, ITS AFFILIATES OR THEIR RESPECTIVE THIRD PARTY PROVIDERS OR LICENSORS TO ANY AUTHORIZED USER OR ANY OTHER PARTY IN CONNECTION WITH THE EMR/PM SERVICES OR INSYNC HCS SYSTEM WITHOUT INSYNC HCS’S EXPRESS PRIOR WRITTEN CONSENT.

15.  Limitation of Liability.

15.1 IN NO EVENT SHALL INSYNC HCS BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, LOST PROFITS, OR TORT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE INSYNC HCS TERMS SHEET, THE INSYNC HCS SYSTEMS, THE RCM SERVICES, AND/OR INSYNC HCS EMR/PM SERVICES REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT, CONTRACT, OR OTHERWISE. EXCEPT FOR CLAIMS RELATED TO PROPRIETARY RIGHTS OR PAYMENT OBLIGATIONS, NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT, THE INSYNC HCS TERMS SHEET, THE INSYNC HCS SYSTEMS, THE RCM SERVICES, AND/OR INSYNC HCS EMR/PM SERVICES MORE THAN ONE (1) YEAR AFTER SUCH CLAIM ACCRUED. INSYNC HCS’ AGGREGATE LIABILITY TO THE PRACTICE, ITS USERS AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS (INCLUDING BUT NOT LIMITED TO INDEMNIFICATION, ATTORNEY’S FEES, INTEREST, COSTS, ETC.) RELATING TO THIS THIS AGREEMENT, THE INSYNC HCS TERMS SHEET, THE INSYNC HCS SYSTEMS, AND/OR THE EMR/PM SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY THE PRACTICE TO INSYNC HCS IN THE NINE (9) MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED FOR THE APPLICABLE SERVICE. HOWEVER, IN NO EVENT SHALL INSYNC HCS’S MINIMUM LIABILITY BE LESS THAN ONE THOUSAND DOLLARS ($1,000.00), EXCEPT THAT, WITH RESPECT TO THE RCM SERVICES, THE LIABILITY LIMITATION IS THE LESSER OF: I) THE FEES FOR THE PAST SIX MONTHS FOR THE RCM SERVICES RENDERED FOR WHICH LIABILITY IS CLAIMED; OR II) $50,000.

15.2 APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH WITHIN THIS AGREEMENT; THUS, THE LIMITATION OF LIABILITY AND WARRANTIES MAY NOT APPLY TO PRACTICE’S LOCATED WITHIN THOSE JURISDICTIONS. NONETHELESS IF ANY PART OF THIS LIMITATION ON LIABILITY OR WARRANTIES ARE FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF INSYNC HCS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TWO THOUSAND AND FIVE HUNDRED DOLLARS ($2,500.00).

15.3 INSYNC HCS shall have no liability for any claim that the INSYNC HCS Systems or the EMR/PM Services violate or infringe upon the rights of any third party under a trademark, copyright or patent or allege trademark copyright or patent, if such claim is based upon (i) the combination, operation or use of the INSYNC HCS Systems or EMR/PM Services with software not supplied by INSYNC HCS, (ii) any alteration or modification of the INSYNC HCS Systems or (iii) INSYNC HCS’s compliance with any of the Practice’s request to modify or redesign the INSYNC HCS System.

15.4 The Practice acknowledges that INSYNC HCS has not authorized any person to issue or make representations or warranties on behalf of INSYNC HCS in connection with INSYNC HCS’s access to or use of the INSYNC HCS Systems and/or INSYNC HCS Services other than those expressly set forth in (i) this Agreement and (ii) the written materials provided by INSYNC HCS describing the capabilities and functions of the INSYNC HCS System and/or the INSYNC HCS EMR/PM Services.

16. Assignment, Benefit

This Agreement may not be assigned by the Practice without the prior written consent of INSYNC HCS, which consent shall not be unreasonably withheld. Any attempted assignment, delegation or transfer of this Agreement by the Practice to a third party hereto in violation hereof shall be null and void. INSYNC HCS shall have the right to assign this Agreement and any or all of its rights and/or obligations under this Agreement to any parent, subsidiary, or other affiliate, or to any entity that is a successor in interest pursuant to a merger or acquisition with or of any division or all of INSYNC HCS without the Practice’s written consent. Subject to the foregoing limitation upon assignment, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and the respective heirs, personal and legal representatives, successors and assigns of the Parties.

17. Updates

During the term of this Agreement, INSYNC HCS may incorporate product updates and new releases with respect to the INSYNC HCS System on a periodic basis. All product updates and new releases that are available to the Practice shall be governed by the same terms and conditions of this Agreement. The Practice may be required periodically to upgrade to a new version of its operating system or other third-party software used in connection with the INSYNC HCS System and/or the EMR/PM Services at their current prices or to a release level compatible with and required to run new releases or updates of the INSYNC HCS System, in order to continue to access and/or use the INSYNC HCS System and/or the EMR/PM Services. The Practice may also be required to procure additional memory or disk capacity in order to be able to access and use the INSYNC HCS Systems and/or the EMR/PM Services or to run new releases, versions or updates of the INSYNC HCS System. Practice shall be responsible for procuring any such operating system, hardware upgrades or other third-party software, at its sole expense. INSYNC HCS SHALL HAVE NO OBLIGATION TO CONTINUE TO INCLUDE PRIOR VERSIONS OF THE INSYNC HCS System. If INSYNC HCS offers additional, optional services to Practice during the term of this Agreement, Practice may be required to provide certain information either to INSYNC HCS or certain third parties in connection with some of the services that may be offered.

18. Reliance

The Practice is not relying on any statements or representations concerning the INSYNC HCS Systems or the EMR/PM Services made to Practice, other than those contained herein and in the written materials furnished to it by INSYNC HCS.

19. Attorney-In-Fact.

The Practice hereby appoints INSYNC HCS as its attorney-in-fact for the limited purpose of using the information given by the Practice to deliver the INSYNC HCS EMR/PM Services.

20. Notices.

Notices under this Agreement shall be in writing and sent to INSYNC HCS at Qualifacts, Attn: Chief Financial Officer – InSync Healthcare Solutions, 315 Deaderick St., Suite 2300, Nashville, Tennessee 37238, and to Practice’s Contact at the address as set forth in the INSYNC HCS Term Sheet. Such notices shall be deemed given (i) when personally delivered, (ii) on the third business day after deposit, properly addressed and postage pre-paid, when sent by certified or registered U.S. mail to the address provided herein, or (iii) on the next business day when sent with next-business-day instruction by recognized overnight document delivery service to the address provided herein.

21. Further Assurances.

Upon the request of either Party to the other, each Party will take such other action and execute and deliver to the other Party such instruments or documents as may be reasonably necessary to assure, complete, evidence or implement the provisions of this Agreement.

22. Non Waiver.

The failure of either Party to insist on strict performance of any of the covenants or conditions of the Agreement, or to exercise any option herein conferred in any one or more instances, shall not be construed as a waiver or a relinquishment for the future of such covenants, conditions, rights or options, but the same shall remain in full force and effect; and the doing by INSYNC HCS or the Practice of any act or thing which INSYNC HCS or the Practice is not obligated to do hereunder shall not be deemed to impose any obligation upon INSYNC HCS or the Practice to do any similar act or thing in the future or in any way change or alter any of the provisions of this Agreement.

23. Confidentiality.

23.1 “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Practice is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any nonpublic information relating to any activities conducted hereunder.

23.2 Notwithstanding the above, the term “Confidential Information” does not include information that is: (i) readily discernible from publicly-available products or literature; (ii) approved for disclosure by prior written permission of an executive officer of the disclosing party; or (iii) protected health information, as defined under HIPAA (because such information is subject to the provisions of the BAA).

23.3 Each party receiving Confidential Information from the other party shall maintain the confidentiality of the Confidential Information. The receiving party shall only use or disclose to any third party the disclosing party’s Confidential Information (i) for INSYNC HCS or Practice to perform its obligations or exercise its rights under this Agreement and when the third party is required to protect the confidentiality of the Confidential Information; (ii) in accordance with Section 23.4 or 23.5; or (iii) with the disclosing party’s express written authorization.

23.4 A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.

23.5 Notwithstanding anything to the contrary, this Agreement shall not be construed to prohibit or restrict any communication in a manner that violates the Condition of Certification at 45 C.F.R. § 170.403(a). Further, Practice shall not impose any prohibition or restriction on any third party that prohibits or restricts any communication in a manner that violates the Condition of Certification.

23.6 If a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.

23.7 The parties hereto covenant and agree that this Section 23 will survive the expiration, termination, or cancellation of this Agreement for a period of 3 years, except for Confidential Information described in Section 24.1(A), with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.

24. Modifications.

IN THE EVENT INSYNC HCS MODIFIES ANY TERM OR CONDITION OF THIS AGREEMENT OR THE INSYNC HCS TERM SHEET, SUCH MODIFICATION SHALL ONLY BE EFFECTIVE IF SIGNED BY THE CHIEF EXECUTIVE OFFICER, PRESIDENT, CHIEF FINANCIAL OFFICER, OR GENERAL COUNSEL FOR INSYNC HCS.NO OTHER EMPLOYEE OR OFFICER OF INSYNC HCS SHALL HAVE THE AUTHORITY TO MODIFY A TERM OF THIS AGREEMENT OR THE INSYNC HCS TERM SHEET.IF THESE TERMS AND CONDITIONS ARE MODIFIED AND THE MODIFIED TERMS AND CONDITIONS ARE POSTED BY ONLINE BY INSYNC HCS, THEN THE PRACTICE MAY ASSUME THE MODIFIED TERMS AND CONDITIONS ARE EFFECTIVE AND NO SIGNATURE OF AN INSYNC OFFICE IS REQUIRED.

25. Partial Invalidity.

The invalidity of any portion of this Agreement shall not affect the validity of the remainder of this Agreement as long as the primary intent and purpose of this Agreement is not materially affected.

26. Entire Agreement.

This Agreement, the executed INSYNC HCS Term Sheet, and any other Supplemental agreements entered into by the Practice constitutes the entire understanding and agreement between the Parties hereto. This Agreement replaces and supersedes all previous oral or written agreements, understandings, arrangements, discussions or negotiations between the Parties regarding the subject matter of this Agreement. Further, the parties expressly acknowledge and intend that the terms contained in this Agreement related to the content and manner of a request for access, exchange, or use of electronic health information, including any and all terms related to fees, reflect the parties’ mutual agreement (in an arms’ length transaction without coercion) and meet the “content” and “manner requested” conditions of the Content and Manner Exception at 45 C.F.R. §§ 171.301(a) and (b)(1), respectively.

27. Headings.

The headings or captions of the paragraphs of this Agreement are for convenience and reference only and are not to be considered in construing this Agreement.

28. Dispute Resolution.

Prior to filing any cause of action, or legal proceeding, with the requisite court of law, the Parties agree that they will first be required to attend in-person mediation in Tampa, Florida. Both Parties agree that they will send a representative with full settlement authority to the mediation. The cost of the in-person mediation shall be split amongst the parties but shall not include travel costs of either party associated with attending the in-person mediation. Notwithstanding the foregoing, the pre-suit mediation requirement will be waived and not required in the event INSYNC HCS brings an action against the Practice for unpaid Services Fees or other unpaid fees.

29. Governing Law Venue.

This Agreement shall be governed and construed in accordance with the laws of the State of Florida applicable to agreements made and to be performed in Florida without reference to its principles of conflict of laws. The Practice expressly agrees that any legal action or proceeding between INSYNC HCS and the Practice for any purpose concerning or related to this Agreement, the EMR/PM Services, the EMR/PM Value Added Services, or the INSYNC HCS EMR/PM System, or the parties’ obligations hereunder shall be brought exclusively in a court of record for Hillsborough County, Florida or the United States District Court for the Middle District of Florida – Tampa division. Practice hereby agrees to consent to personal jurisdiction of the state and federal courts situated within State of Florida for purposes of enforcing this Agreement, and waive any objection that Practice might have to personal jurisdiction or venue in those courts. Neither the course of conduct and/or course of dealing between the parties nor trade practice shall act to modify any provision of this Agreement.

30. Compliance with Dispute Resolution and Venue.

In the event that either Party fails to comply with the Dispute Resolution procedure set forth in Section 28 of this Agreement, and files a cause of action or legal proceeding prior to a required mediation taking place; or in the event either Party files any cause of action or legal proceeding in a court of law against the other Party in a court of law other than a court of law identified in Section 29 of this Agreement, the filing Party agrees to pay the non-filing Party’s reasonable attorneys’ fees and all costs and expenses incurred with respect to defending such improperly filed cause of action or legal proceeding.

31. Injunctive Relief.

Notwithstanding the provisions of Section 28, the Practice agrees that violations of Sections 5, 6 and 23, will cause INSYNC HCS irreparable and immediate harm and that INSYNC HCS is entitled to seek immediate injunctive relief from a court of competent jurisdiction to prevent such violation.

32. US Government Rights.

INSYNC HCS Systems and INSYNC HCS EMR/PM Services include commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation (collectively, “Commercial Software/Data”), as applicable which were developed exclusively at private expense by INSYNC HCS. Additionally, the INSYNC HCS System and the INSYNC HCS Services, specifically EMR and PM, may include Commercial Software/Data, including CPT® code which is commercial technical data, which was developed exclusively at private expense by the American Medical Association, 330 North Wabash Avenue, Chicago, Illinois 60611. The American Medical Association does not agree to license CPT to the Federal Government based on the license in FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items) or any other license provision. The American Medical Association reserves all rights to approve any license with any Federal agency.

IN ORDER TO HAVE ACCESS TO (OR CONTINUED ACCESS TO) AND USE OF (OR CONTINUED USE OF) THE INSYNC HCS SYSTEMS AND INSYNC HCS EMR/PM SERVICES AND RCM SERVICES, YOU MUST CHECK THE ACCEPT BOX UPON SIGN UP. BY DOING SO, YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF THE PRACTICE REGISTERED UNDER THIS LOG-IN ID. FAILURE TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL PREVENT YOU FROM ACCESSING OR USING THE INSYNC HCS SYSTEM AND INSYNC HCS EMR/PM SERVICES AND RCM SERVICES. ANY ATTEMPT TO DO SO WITHOUT AGREEING TO THESE TERMS AND CONDITIONS IS EXPRESSLY PROHIBITED AND IS VIOLATIVE OF APPLICABLE LAW.

EXHIBIT A

BUSINESS ASSOCIATE AGREEMENT
AND (IF APPLICABLE) QUALIFIED SERVICE ORGANIZATION AGREEMENT

1. Status of Parties under HIPAA and Part 2. The parties acknowledge and agree that Practice is a Covered Entity or is a Business Associate to one or more Covered Entities under the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder from time to time by the United States Department of Health and Human Services (collectively, and together with the Health Information Technology for Economic and Clinical Health Act, all as amended from time to time, “HIPAA”) and INSYNC HCS is a Business Associate under HIPAA when INSYNC HCS performs services involving the creation, receipt, maintenance, transmission, use, or disclosure of PHI for or on behalf of Practice (the “Services”). If the Services involve Substance Use Disorder Records of any Practice operations that constitute a program (the “Part 2 Program”) as defined in the federal alcohol and drug rehabilitation regulations at 42 C.F.R. Part 2 (“Part 2”), then INSYNC HCS also will be a Qualified Service Organization (as defined at 42 C.F.R. § 2.11).

2. Definitions.

2.1Capitalized terms used but not otherwise defined in this Exhibit shall have the meanings ascribed in HIPAA or Part 2, as applicable (whether or not such terms are capitalized therein).

2.2“Effective Date” means the date indicated on the signature page of this Agreement or, if later, the first date upon which INSYNC HCS receives, accesses, creates, transmits, or maintains PHI.

2.3“Electronic PHI” means PHI that is Electronic Protected Health Information.

2.4“PHI” means Protected Health Information received or accessed by INSYNC HCS from or on behalf of Practice or created, transmitted, or maintained by INSYNC HCS for or on behalf of Practice.

2.5“Substance Use Disorder Records” means the subset of PHI that constitutes Records (as defined at 42 CFR § 2.11) (if any).

3. Permitted Uses.

Subject to the restrictions set forth in this Exhibit regarding Substance Use Disorder Records, and subject to the other limitations set forth in this Exhibit or in other provisions of this Agreement, INSYNC HCS may use PHI for the following purposes:

• as necessary to perform the Services;
• to carry out its legal responsibilities;
• for the proper business management and administration of INSYNC HCS;
• to provide Data Aggregation services relating to the Health Care Operations of Practice;
• to de-identify PHI in accordance with the standards set forth under HIPAA; and
• as Required By Law.

4. Permitted Disclosures. Subject to the restrictions set forth in this Exhibit regarding Substance Use Disorder Records, and subject to the other limitations set forth in this Exhibit or other provisions of this Agreement, INSYNC HCS may disclose PHI for the following purposes:

• as necessary to perform the Services;
• for the proper business management and administration of INSYNC HCS or to carry out its legal responsibilities, if Required By Law or if INSYNC HCS has obtained reasonable assurances that the recipient will (A) hold such PHI in confidence, (B) use or further disclose it only for the purpose for which it was received or as Required By Law, and (C) notify INSYNC HCS of any instance of which the recipient becomes aware in which the confidentiality of such PHI has been breached; and
• as otherwise Required By Law.

5. Prohibited Uses and Disclosures.

5.1 Subject to Practice’s compliance with its obligations set forth in Section 18 as applicable and except as otherwise expressly permitted in this Agreement, INSYNC HCS shall not use or further disclose PHI in a manner that would violate HIPAA or Part 2 (if applicable) if done by Practice.

5.2 If Practice notifies INSYNC HCS that Practice has agreed to be bound by additional restrictions on the uses or disclosures of PHI pursuant to Section 18, INSYNC HCS shall be bound by such additional restrictions and shall not use or disclose PHI in violation of such additional restrictions.

5.3 INSYNC HCS shall not sell PHI or otherwise receive remuneration, directly or indirectly, in exchange for PHI; provided, however, that this prohibition shall not affect payment to INSYNC HCS by Practice for performance of the Services.

6. Subcontractors and Agents. Any disclosure to a Subcontractor or agent of INSYNC HCS shall be pursuant to a written agreement between INSYNC HCS and such Subcontractor or agent containing substantially the same restrictions and conditions on the use and disclosure of PHI as are set forth in this Exhibit (including, if applicable, the provisions hereof regarding Substance Use Disorder Records).
7. Minimum Necessary. INSYNC HCS shall request, access, use, and disclose only the minimum amount of PHI necessary, in accordance with HIPAA, to perform the Services.
8. Certain Privacy Rule Compliance. To the extent that INSYNC HCS is to carry out one or more of Practice’s obligations under Subpart E of Part 164 of HIPAA (generally known as the HIPAA Privacy Rule), INSYNC HCS shall comply with such requirements that apply to Covered Entity in the performance of such obligations.
9. Part 2 Program Requirements. INSYNC HCS acknowledges that, with respect to Substance Use Disorder Records (if any), INSYNC HCS is obligated to comply with Part 2. INSYNC HCS (i) shall use, disclose, and release Substance Use Disorder Records in accordance with Part 2 and (ii) if necessary, will resist in judicial proceedings any efforts to obtain access to Substance Use Disorder Records except as permitted by Part 2.
10. Safeguards.

INSYNC HCS at all times shall maintain administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, availability, and integrity of Electronic PHI that it creates, receives, maintains, or transmits in accordance with the regulations set forth at 45 CFR § 164.308, 45 CFR § 164.310, and 45 CFR § 164.312 and shall maintain policies and procedures and other documentation in accordance the regulations set forth at 45 CFR § 164.316. INSYNC HCS acknowledges that such provisions apply to INSYNC HCS in the same manner that they apply to Covered Entities.

11. Breach Investigation and Reporting.11.1 As soon as practicable following any actual or reasonably suspected use or disclosure of PHI that is not permitted or required by this Exhibit (an “Impermissible Use or Disclosure”), INSYNC HCS shall assess whether such actual or suspected Impermissible Use or Disclosure was of PHI that is Unsecured Protected Health Information and, if so (or if INSYNC HCS cannot determine conclusively to the contrary), INSYNC HCS shall make an evaluation of whether there is a low probability that the PHI has been compromised. In making such evaluation, INSYNC HCS shall conduct a risk assessment that considers, at a minimum, (i) the nature and extent of the protected health information involved, including the types of identifiers and the likelihood of re identification, (ii) the unauthorized person who used the protected health information or to whom the disclosure was made, (iii) whether the protected health information was actually acquired or viewed, and (iv) the extent to which the risk to the protected health information has been mitigated, and INSYNC HCS shall evaluate the overall possibility that the PHI has been compromised by considering all of the above, and any other relevant factors, in combination.

11.2 If pursuant to the evaluation described in Section 11.1 INSYNC HCS determines that such Impermissible Use or Disclosure constitutes a Breach of PHI that is Unsecured Protected Health Information, INSYNC HCS shall provide Practice in writing, without unreasonable delay but in no case later than 10 days following such determination, written notice setting forth the date of discovery thereof, the identities of affected individuals (or, if such identities are unknown at that time, the classes of such individuals), a general description of the nature of the incident, and such other information as is required pursuant to HIPAA or reasonably requested by Practice. INSYNC HCS shall supplement such notice with information not available at the time of the initial notification as promptly thereafter as the information becomes available to INSYNC HCS.

11.3 For purposes hereof, Breach of PHI that is Unsecured Protected Health Information shall be deemed discovered by INSYNC HCS as of the first day on which the underlying Impermissible Use or Disclosure is known to INSYNC HCS or, by exercising reasonable diligence, would have been known to INSYNC HCS, and INSYNC HCS shall be deemed to have knowledge of an impermissible use or disclosure if such Impermissible Use or Disclosure is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Impermissible Use or Disclosure, who is a workforce member of INSYNC HCS or an agent of INSYNC HCS (determined in accordance with the federal common law of agency).

12. Security Incident and Impermissible Use or Disclosure Reporting.INSYNC HCS shall report to Practice in writing any (i) actual Impermissible Use or Disclosure or (ii) Security Incident involving Electronic PHI, other than an Unsuccessful Security Incident that involves an actual or suspected impermissible use or disclosure of PHI, within 30 days of INSYNC HCS’ discovery thereof. The parties acknowledge and agree that this section constitutes notice by INSYNC HCS to Practice of the ongoing occurrence of events that may constitute Security Incidents but that are trivial, routine, do not constitute a material threat to the security of PHI, and do not result in unauthorized access to or use or disclosure of PHI (such as typical pings and port scans), for which no additional notice to Practice shall be required (each, an “Unsuccessful Security Incident”).
13. Mitigation. INSYNC HCS shall take all actions reasonably necessary and shall cooperate with Practice as reasonably requested to mitigate, to the extent practicable, any harmful effect of any use or disclosure of PHI in violation of the terms and conditions of this Exhibit or of any applicable law.
14. Access and Amendment. With respect to an Individual as to whom INSYNC HCS maintains PHI, INSYNC HCS shall notify Practice promptly upon receipt of a request from such an Individual for access to or a copy of such Individual’s PHI or to amend such Individual’s PHI. To the extent permitted under HIPAA, and except as otherwise required upon the order of a court of competent jurisdiction, (i) INSYNC HCS shall direct such Individual to make such request of Practice and (ii) INSYNC HCS shall not consent to such access, deliver such copy, or comply with such request except as directed by Practice. With respect to PHI maintained by INSYNC HCS in a Designated Record Set, to the extent required by HIPAA, INSYNC HCS shall (i) make available PHI to Individuals or Practice, as reasonably requested by Practice and in accordance with HIPAA and (ii) upon receipt of notice from Practice, promptly amend any portion of the PHI so that Practice may meet its amendment obligations under HIPAA.
15. Accounting for Disclosures. INSYNC HCS shall document all disclosures of PHI by INSYNC HCS and information related to such disclosures as would be required for Practice to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with HIPAA. INSYNC HCS shall maintain such information for the applicable period set forth in HIPAA. INSYNC HCS shall deliver such information to Practice or, upon Practice’s request, to the Individual, in the time and manner reasonably designated by Practice, in order for Practice to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with HIPAA. The obligations set forth in this section shall survive the expiration or any termination of this Agreement and shall continue, as to a given instance of a disclosure, until the earlier of (i) the passing of the time required for such information to be maintained pursuant to HIPAA or (ii) the delivery to Practice of all such information in a form and medium reasonably satisfactory to Practice and the return or destruction of all PHI as provided in this Exhibit.
16. Audit. If INSYNC HCS receives a request, made on behalf of the Secretary of the Department of Health and Human Services, that INSYNC HCS make its internal practices, books, and records relating to the use or disclosure of PHI available to the Secretary of the Department of Health and Human Services for the purposes of determining Practice’s or INSYNC HCS’ compliance with HIPAA, INSYNC HCS promptly shall notify Practice of such request and, unless enjoined from doing so by order of a court of competent jurisdiction in response to a challenge raised by Practice or INSYNC HCS (which challenge INSYNC HCS shall not be obligated to raise), INSYNC HCS shall comply with such request to the extent required of it by applicable law. Nothing in this Exhibit or any other provision of this Agreement shall waive any attorney-client privilege or other privilege applicable to either party.
17. Compliance with Law. INSYNC HCS shall comply with all applicable federal and state laws regarding individually identifiable information contained in or associated with PHI, including without limitation any state data breach laws or other state laws regarding the protection of such information. Nothing in this Exhibit or any other provision of this Agreement shall be construed to require INSYNC HCS to use or disclose PHI without a written authorization from an Individual who is the subject thereof, or written authorization from any other person, where such authorization would be required under federal or state law for such use or disclosure.
18. Obligations of Practice. Practice shall (i) notify INSYNC HCS of any limitation in Practice’s Notice of Privacy Practices to the extent that such limitation may affect INSYNC HCS’ use or disclosure of PHI, (ii) notify INSYNC HCS of any changes in, or revocation of, permission by an Individual to use or disclose PH, to the extent that such change may affect INSYNC HCS’ use or disclosure of PHI, (iii) notify INSYNC HCS of any restriction on the use or disclosure of PHI to which Practice has agreed in accordance with HIPAA, to the extent that such restriction may affect INSYNC HCS’ use or disclosure of PHI, and (iv) obtain any authorization or consents as may be Required by Law for any of the uses or disclosures of PHI necessary for INSYNC HCS to provide to the Services.
19. Effect of Termination. Upon termination of this Agreement, INSYNC HCS shall return to Practice or destroy all PHI that INSYNC HCS maintains in any form and retain no copies of such PHI or, if return or destruction is not feasible (including without limitation if INSYNC HCS is required by applicable law or INSYNC HCS’ reasonable data backup procedures to retain any such PHI for a time following termination), notify Practice thereof and extend the protections of this Exhibit to the PHI and limit its further use or disclosure to those purposes that make the return or destruction of the PHI infeasible. The requirements of this section shall survive termination or expiration of this Agreement and shall be in force as long as any PHI remains in the custody or control of INSYNC HCS.
20. Interpretation. In the event of an inconsistency between the provisions of this Exhibit and mandatory provisions of HIPAA or Part 2, as amended, or its interpretation by any court or regulatory agency with authority over either party hereto, HIPAA or Part 2 (interpreted by such court or agency, if applicable) shall control. Where provisions of this Exhibit are different from those mandated under HIPAA or Part 2, but are nonetheless permitted by such rules as interpreted by relevant courts or agencies, the provisions of this Exhibit shall control.

EXHIBIT B

ADDITIONAL TERMS FOR RCM SERVICES

1. INSYNC HCS Responsibilities.The revenue cycle management services to be rendered and provided by INSYNC HCS through its employees and/or others shall be as follows:

1.1 On behalf of Practice, and for any individual Provider’s account within the Practice, INSYNC HCS shall provide services to Practice for the submission and collection of billable claims for health care services rendered by Practice for reimbursement by patients, managed care plans and other private third party payers, and government programs such as Medicare, Medicaid and TRICARE. For purposes of this Agreement, third party payers, including commercial insurance plans, managed care plans, government programs, third party administrators (TPA), worker’s compensation plans, other insurance plans (Auto, Property, Casualty), grants and private employers shall be referred to collectively as “Payers” or individually as “Payer”. The Practice acknowledges that the RCM Services being provided by INSYNC HCS will act as a conduit between the Practice and the Payers and that the RCM services being provided by INSYNC HCS DO NOT include coding of services (CPT-4 and Level II HCPCS Procedure Codes, Procedure Modifiers and ICD-10-CM). Further, the Practice acknowledges that the RCM Services being provided by INSYNC HCS are relying entirely on the claims and billing information supplied by Practice and Practice is solely responsible for providing all the appropriate codes to submit the claim(s). INSYNC HCS does not have the authority to alter or perform any coding changes to the codes supplied by Practice prior to billing third party payers, patients and/or other responsible parties other than at the express direction of Practice.

1.2 The Parties shall adhere to the billing and claims submission policies and procedures set forth in Exhibit C and incorporated by reference into this Agreement.

1.3 INSYNC HCS shall submit reimbursement claims for health care services rendered by the individual Providers within the Practice when such claims are supported by the required and complete documentation. INSYNC HCS shall notify Practice in the event it reasonably has determined that the documentation is not sufficient to complete its work and request further documentation or information, which Practice will provide promptly.

1.4 INSYNC HCS shall submit claims to the primary Payer in the manner and format prescribed by each Payer using the ICD and CPT codes in effect at the time of submission of the claim. INSYNC HCS shall use reasonable efforts to submit all complete claims within three business days from the date Practice provides INSYNC HCS with the necessary billing documentation, but in no event more than five business days from INSYNC HCS’s receipt of such documentation. Billing documentation received with incomplete information shall not be deemed received by INSYNC HCS until INSYNC HCS determines that all necessary documentation or information is received.

1.5 During the course of the billing process, it may be necessary for INSYNC HCS on behalf of the Practice to submit documentation to support the claims submitted for services rendered by the Practice. The timely payment of submitted claims is dependent on the Practice’s timely submission of all medical documentation related to the claim to INSYNC HCS. It is the Practice’s responsibility to take all reasonable steps necessary to ensure that the appropriate and complete medical documentation are made available to INSYNC HCS within 2 business days to ensure compliance with payer timely filing limits.

1.6 INSYNC HCS will apply corrections as instructed by the Practice pursuant to Section 2.11 to ensure accuracy of the service encounter so long as the correction complies with billing guidelines and Practice represents and warrants that all instructed corrections are accurate to the best of their knowledge and supported by the documentation in the patient’s medical record.

1.7 INSYNC HCS shall provide Practice with written practice analysis report(s) as mutually agreed to by the Parties and set forth in Exhibit C.

1.8 INSYNC HCS is not responsible for the processing and/or accounts receivable resolution for any claim of Practice for services provided prior to the term of this Contract.

1.9 INSYNC HCS shall comply with applicable state and federal law, regulations and guidelines and the policies of federal, state and private payer health care program requirements in providing the Services hereunder

1.10 INSYNC HCS shall prohibit the employment of individuals who have been convicted of a criminal offense related to health care or who are listed as debarred, excluded or otherwise ineligible for participation in federal or state health care programs.

2. Practice Responsibilities.

2.1 The Practice, through licensed health care personnel, shall be solely responsible for, and shall have sole and complete authority, supervision and control over the provision of professional health care services performed for patients of Practice, and all diagnoses, treatments, procedures, and other professional health care services shall be provided and performed exclusively by or under the supervision of a licensed health care personnel retained by Practice, which it, in its sole discretion, deems appropriate and in accordance with all laws. This Agreement in no way shall be construed to mean or suggest that INSYNC HCS is engaged or permitted hereunder to engage in the practice of medicine.

2.2 The Practice shall establish, in Practice’s sole discretion, the fees for all billable professional services provided by Practice.

2.3 Practice shall provide INSYNC HCS with copies of all protocols, policies, programs and procedures of health care programs with which Practice participates and which are applicable to Practice.

2.4 Except in situations where immediate medical or surgical treatment is required, prior to rendering medical services on a patient, Practice shall be responsible for (i) obtaining the most current insurance and demographic information from each patient; (ii) verifying patient eligibility; (iii) verifying and obtaining any and all necessary referrals, pre-certifications, and other authorizations that may be required by a Payer as a prerequisite for payment; (iv) obtaining a valid assignment of benefits from the patient in a form acceptable to Payer; and (v) upon request by INSYNC HCS, cooperating in the completion of any billing claim forms required by Payer.

2.5 Practice shall establish and maintain appropriate medical records and medical notes with respect to each claim submitted by INSYNC HCS for reimbursement for the period of time required by applicable law, but in no event less than seven (7) years from the date the service was rendered. Such documentation used as a basis for a claim submission shall (i) clearly identify the diagnosis(es) and procedure(s) being billed; (ii) clearly identify the individual providing the health care service(s) being billed; (iii) include appropriate documentation of the applicable key components of the evaluation and management (E&M) service provided where E&M services are being billed; and (iv) shall otherwise comply in all respects with the reimbursement and program requirements of federal, state, and private health care programs, as may be modified from time to time. Practice is responsible for ensuring that claim documentation is complete and accurate.

2.6 Practice shall advise INSYNC HCS of its receipt of all payments for the healthcare services it provides in accordance with the protocol set forth in Exhibit C so that INSYNC HCS can take appropriate action, including posting the reimbursement against the open claim in the practice management system and/or performing the necessary follow-up with the party(ies) responsible for payment of the balance, if any. In accordance with Exhibit C, within one (1) business day from Practice’s receipt of payment to advise and submit the necessary documentary evidence to INSYNC HCS related to the receipt of payment. If Practice fails to meet the one (1) business day time period, INSYNC HCS will have the right to send Practice a notice of corrective action after which Practice will have fourteen (14) days to correct action in accordance with the notice. If Practice does not take corrective action within fourteen (14) days, Practice will be assessed a penalty of a ten percent (10%) increase in the Monthly Minimum fee amount provided in Section 3.1. INSYCH HCS reserves the right to increase the penalty every thirty (30) days by an additional ten percent (10%) if Practice continues to fail to take corrective action, starting on the 60th day from the date notice of corrective action was originally sent.

2.7 Practice shall designate an individual who is authorized to work with INSYNC HCS to assist in facilitating INSYNC HCS’s provision of the RCM Services (the “Designee”). Such Designee shall respond to INSYNC HCS in a timely manner to: (i) address any coding issues identified by the payer and/or INSYNC HCS; (ii) address discrepancies in payments received rates; (iii) retrieve old EOBs that may be requested by INSYNC HCS; (iv) address discrepancies in services and/or dates of services; (v) address discrepancies in payment postings/denials previously processed by Practice; and (vi) address such other items/requests from INSYNC HCS that may be required by INSYNC HCS to perform the services effectively and efficiently.

2.8 Practice shall develop effective internal controls to promote adherence to and ensure full compliance with applicable federal and state law, including but not limited to federal and state fraud and abuse laws. Practice shall develop effective controls to ensure avoidance of, among other issues, and to the extent applicable, the following: (i) billing for items or services not actually rendered and/or documented; (ii) providing medically unnecessary services; (iii) upcoding; (iv) misuse of Practice identification numbers; (v) outpatient services rendered in connection with inpatient stays; (vi) duplicate billing; (vii) unbundling; (viii) routine waiver of applicable copayments, coinsurance and deductibles; (ix) failure to refund overpayments and credit balances; and (x) failure to properly use modifiers.

2.9 Practice shall conduct auditing and monitoring as part of its compliance program and to refund any identified overpayments to Payers or patients within 60 days of discovery.

2.10 In the event any investigation is initiated, or any action is brought by any individual, insurance payer, governing agency or company regarding any of the claims filed by INSYNC HCS as part of the RCM Services on behalf of the Practice, then Practice agrees to cooperate fully in any such investigation or action and shall provide all relevant supporting documentation to support the claim(s) filed.

2.11 In the event of a billing error, clearinghouse rejection or payer denial, the Practice shall provide corrections and revisions to their INSYNC HCS RCM Services Account Manager as appropriate to correct the error so long as the correction complies with billing guidelines and Practice represents and warrants that all corrected data submitted is accurate to the best of their knowledge and supported by the documentation in the patient’s medical record.

2.12 Practice shall not submit or cause to be submitted to any federal or state health care programs reimbursement claims for patients who were referred pursuant to contracts and financial arrangements that were designed to induce referrals in violation of the anti-kickback statute, Stark physician self-referral law or similar federal or state statute or regulation.

2.13 Practice shall prohibit the employment of individuals who have been convicted of a criminal offense related to health care or who are listed as debarred, excluded or otherwise ineligible for participation in federal or state health care programs.

2.14 Practice shall maintain and support internal mechanisms and/or a compliance program designed and enforced to effectively prevent and detect criminal conduct and ethical lapses by Practice’s employees and agents.

2.15 Practice shall comply with applicable state and federal law, regulations and guidelines, the policies of federal, state and private payer health care program requirements, coding requirements, and claims submission procedures.

2.16 Practice shall perform health care services in strict conformance with currently approved medical methods and practices and in a competent and professional manner.

2.17 Practice represents and warrants that all encounter data submitted to INSYNC HCS as related to the RCM Services for Payer or patient reimbursement has been performed on patients, is entirely accurate and truthful, is properly documented and meets all Payer requirements including medical necessity. Practice acknowledges that the proper or Payer required notification has been given to the patient regarding their financial responsibility in cases where the procedure is not covered by their insurance plan or does not meet medical necessity.

2.18 Practice represents and warrants that any procedures not directly rendered by the Practice are performed by a licensed professional (as required by state law) that is trained and recognized by the Payer as authorized to perform the procedure and that the encounter meets supervision requirements as defined by the Payer.

2.19 Practice acknowledges that INSYNC HCS will have the exclusive rights to perform all components of billing and collections for services rendered by the Practice to their patients and/or clients on or after the acceptance of this Agreement. Practice acknowledges that it will not outsource or perform inhouse or within another department of the Practice any components of its billing and collections for all services rendered by the Practice during the effective term of this Agreement.

3. Compensation for RCM Services.

3.1 Unless otherwise set forth on the INSYNC HCS Term Sheet, in compensation for the RCM Services, Practice shall pay INSYNC HCS the higher of the % of monthly Gross Revenue (the “Contingency Fee”) agreed to by the Parties on the executed INSYNC HCS Term Sheet or the monthly minimum fee per physician/healthcare practitioner per month (the “Monthly Minimum Fee”) agreed to by the Parties on the executed INSYNC HCS Term Sheet (collectively the “Services Fee”). For purposes of this Agreement, Gross Revenue shall mean all payments received by Practice less any refunds by Practice as long as such refunds are related to payments for which INSYNC HCS has already been compensated. Any refunds or recoupments related to billing fraud or audits by Payers, etc. will not reduce the Gross Revenue calculation herein. For purposes of this section, payments shall mean all payments received by Practice for healthcare services provided by Practice, regardless of the source of such payments and shall expressly include but not be limited to co-payments and co-insurance received from patients at the time the services are delivered, all payments made by self-pays, and capitation payments. Refunds shall mean all refunds, recoupments, chargebacks, and miscellaneous fees as described in Section 3.2 which reduce the net payment to Practice.

3.2 In the event that Practice is required to refund any payment or portion thereof to a patient or Payer, or is assessed with a chargeback against payments due for current services by any Payer as a result of Practice’s failure to (i) obtain any required precertification or approval or (ii) otherwise comply with a health care program’s policies or procedures or (iii) maintain any required documentation in support of submitted claims for reimbursement, such refunds and chargebacks shall NOT be considered in calculating the compensation due to INSYNC HCS Credit card fees, bank charges, and outside collection agency fees (“Miscellaneous Fees”) also shall NOT be considered in calculating and shall not reduce the compensation due to INSYNC HCS hereunder.

3.3 In addition to the Services Fee, Practice shall incur a per patient statement fee of $.94 for the first page and $.23 for each additional page, with a $20.00 monthly minimum charge, with respect to mailing out of paper patient statements and providing e-statement services.

3.4 The Parties acknowledge and agree that Practice currently licenses the INSYNC EMR/PM product from INSYNC HCS. So long as Practice is receiving revenue cycle management services from INSYNC HCS pursuant to this Agreement, INSYNC HCS may waive the following monthly fees: the EMR/PM product license fee; the clearinghouse and EDI fees including electronic claims submission, electronic remittance advice (ERA), claim status request and response and the real-time eligibility check fee. The monthly e-prescribe fee shall not be waived and Practice shall be responsible for payment thereof so long as it is using such service. Additionally, Practice shall be responsible for the payment of such additional add-on services offered by INSYNC HCS to Practice from time to time which Practice utilizes.

3.5 On or about the fifth business day of each month, INSYNC HCS shall invoice Practice the Monthly Minimum Fee as provided in Section 3.1 in advance for the current month. In addition, INSYNC HCS shall invoice Practice for the amount of the Contingency Fee as calculated based on the Practice’s prior month collected Gross Revenue, that is in excess of the Monthly Minimum Fee for the prior month. Such invoice shall be due and payable by Practice 20 days from the date thereof.

3.6 As a limit on writing off patient balances, Practice shall not request or require that more than three percent (3%) of the total outstanding patient balances calculated on a monthly basis be written off. If the payment is written off, INSYNC HCS will be entitled to Contingency Fee as set forth in section 3.1 that includes the amount written off.

3.7 In the event a Payer makes a payment directly to patient, INSYNC HCS will automatically transfer the balance to the patient and bill the patient via statement. In the event that the patient submits the insurance payment/check to the Practice, the Practice, within one (1) business day from the receipt of the check/payment, will advise and submit the necessary documentary evidence to INSYNC HCS related to the receipt of payment for posting in to the INSYNC practice management system.

3.8 The Parties acknowledge that the compensation provided for under this Agreement is consistent with fair market value and was arrived at through arms-length negotiation. The Parties further acknowledge and agree that compensation for the services provided by INSYNC HCS under this Agreement shall not provide any financial incentives designed to induce INSYNC HCS to submit claims in violation of any applicable federal or state statutes, regulations or rules.

3.9 INSYNC HCS reserves the right to increase the Services Fee and paper patient statement fee listed above; provided, however, it will not do so more than once in a year (unless pursuant to Section 2.6), with the first increase no earlier than one year after the Effective Date of this Agreement. In addition, the Services Fee in any one year will not be increased more than 3% of the Services Fee for the services listed (i.e., will not be increased more than 3% of the percentage charged by INSYNC HCS, so if INSYNC HCS is charging 6% of the Gross Revenue, then that Services Fee would go to 6% * 1.03 = 6.18%). Notwithstanding the foregoing, INSYNC HCS shall have the right to increase the Services Fee additional percentage points if there is a significant change in the Practice’s practice vis a vis payer mix, contracted rates, services provided, patient charge entry requirements volume, and the like or if any regulatory changes impact the services. In the event that INSYNC HCS makes the decision to increase any Services Fee as outlined above, INSYNC HCS must inform Practice no less than 45 days prior to the effective date of such increase, in writing. INSYNC HCS also agrees that such increase cannot occur prior to 90 days after any renewal of this Agreement.

4. Other Terms Applicable to RCM Services.

4.1 Following any termination of this Agreement, INSYNC HCS shall continue to submit and collect all charges for RCM Services rendered prior to the date of termination of this Agreement in accordance with the provisions of this Agreement and shall be paid fees in accordance herewith. Toward that end, the Parties shall confer at least every forty-five (45) days for the period of one (1) year after termination of this Agreement in order to reconcile the accounts receivable existing as of the date of termination of this Agreement. In the event that Practice does not cooperate in this regard by failing to provide INSYNC HCS with information regarding the payments it has received for services rendered and submitted prior to the termination of this Agreement, INSYNC HCS shall be entitled to invoice Practice an amount equal to 5% of the then-outstanding claims submitted by INSYNC HCS. Upon receipt of payment by Practice of all outstanding balances owed, INSYNC HCS will provide prior month end reports, website login credentials, and any other items which are the property of Practice.

4.2 INSYNC HCS shall have the right to use internal members of INSYNC HCS and/or to hire, at its expense, independent auditors to audit Practice’s records in order to enable it to assess Practice’s conformance with the terms of this Agreement, particularly with respect to payment/deposit transactions. INSYNC HCS will provide Practice with ten (10) days advance written notice of any audit. Practice will cooperate by furnishing such auditors with any and all information as is reasonably necessary to perform and complete all audit procedures determined to be necessary by the auditors. INSYNC HCS agrees that any such audit will be conducted at such reasonable times and in such a manner so as to avoid undue disruption of Practice’s operations but Practice must provide reasonable access in a timely manner. INSYNC HCS shall bear the costs of any audit unless the audit produces evidence that Practice failed to advise INSYNC HCS of payments received, resulting in an undercharge of greater than 2% of the amount due INSYNC HCS during the applicable payment period. In such case, Practice will remit to INSYNC HCS a sum equal to the agreed upon additional amount within thirty (30) days and Practice shall pay all expenses associated with the audit. The provisions of this paragraph shall survive the termination of this Agreement.

EXHIBIT C

BILLING AND CLAIMS SUBMISSION POLICIES AND PROCEDURES

ELIGIBILITY, PRECERTIFICATION AND CODING

Practice shall be responsible for:

1. Verifying and/or obtaining patient eligibility, necessary referrals, pre-certifications, and other authorizations in compliance with protocols established by each Payer as a prerequisite for payment.
2. Obtaining a valid assignment of benefits from the patient in a form acceptable to each Payer. Practice shall also be responsible for obtaining Advance Beneficiary Notices (“ABN”) for non-coverage of Medicare services and filing ABN’s under the patient’s account where INSYNC HCS will access to retrieve.
3. Coding all services provided to a patient.
4. Practice shall be responsible for obtaining/collecting the following for each claim:
5. Complete patient demographics
6. Name and Address of Guarantor
7. Information regarding primary and secondary payer(s)
8. Information pertaining to the specific services provided to such patient, including
9. The date and place of service
10. The name of the provider performing the service

iii. The CPT procedure code(s) and modifier(s), if any

1. The ICD diagnosis code(s)
2. The referring physician, if any.

 

In the event the Practice has contracted for add-on services with INSYNC HCS for demographic and charge entry, Practice shall furnish INSYNC HCS with the patient’s demographic information sheet, insurance identification card, necessary referrals, pre-certifications, charge information and other authorizations in compliance with protocols established by each Payer as a prerequisite for payment. With respect to all services involving PIP benefits, workers compensation, automobile insurance and/or property/casualty insurance, the Practice shall furnish copies of the respective office progress notes and hospital consultation report, as the case may be, for claims submission.

BILLING

Upon receipt of patient charge information, INSYNC HCS shall process all patient and charge source data into Practice’s system, as necessary, and generate and submit all patient claims and/or billing statements, within three business days of receipt of the patient charge information from Practice (as received through a mutually agreed method of transferring such information), in a form (either electronically or paper) acceptable to the insurance carriers or plans in which Practice currently or in the future may participate. If after submission of a claim or bill additional documentation is necessary, INSYNC HCS will provide same directly to the requesting party, or will advise Practice of the need for additional documentation, within a reasonable time period. Patient charge information requiring additional or corrected documentation or information shall not be deemed received by INSYNC HCS and will not be processed by INSYNC HCS until all necessary documentation or information is received.

INSYNC HCS will not be obligated to submit a claim and will request clarification and/or corrections from Practice where it believes incomplete or inaccurate information exists, including but not limited to the following:

• Incomplete or inaccurate patient demographic information including patient insurance information
• Referral problems (missing or not matching date of service)
• Illegible or inappropriate diagnosis codes; (iv) incomplete or unidentifiable service codes; and
• Duplication of charges (previously billed).
• INSYNC HCS does not, however, assume any responsibility for the accuracy or completeness of the Practice’s records provided to INSYNC HCS by Practice and shall have no associated liability for errors or omissions that it is unable to identify or correct; it remains Practice’s sole responsibility to provide accurate and complete information.

INSYNC HCS shall post all payments and adjustments to patient accounts within three (3) business days provided adequate third-party payer or patient account information is sufficient to identify the patient account. In the event insufficient information is available to accurately post the account, INSYNC HCS shall post the payments to an “unapplied” account that will be reviewed on a weekly basis and will provide follow up with third party payers and patients to identify unapplied funds.

A/R FOLLOW UP

INSYNC HCS will provide A/R follow-up for rejected and denied claims until resolution, including claims “statusing.” The Parties acknowledge that with respect to an open patient balance, INSYNC HCS will not make any patient collection calls, but will prepare and send out up to two (2) monthly patient statements and one (1) delinquent notice or as otherwise directed by the Practice; thereafter, INSYNC HCS may recommend that such account be sent to a collection agency of Practice’s choice or through INSYNC HCS’s preferred Collection Agency vendor. Where a self-pay account remains delinquent for over two (2) billing cycles, the patient or guarantor may be sent a “Delinquent Notice” at Practice’s request which advises of the Practice’s intention to send the account to collection. If INSYNC HCS receives no response to such statement within 10 days, the account will be prepared for collection and written-off from the system as bad debt. INSYNC HCS and the Practice will coordinate how they wish to handle collection efforts with an outside collection agency.

INSYNC HCS will respond to all calls from third-party payers. INSYNC HCS will report any problems or complaints to the Practice staff. INSYNC HCS may also conduct follow-up with patients as appropriate.

INSYNC HCS shall provide A/R follow-up with respect to third party payers until the earlier of (i) complete claim resolution or (ii) the claim meets a low balance threshold amount (to be mutually determined by the parties) such that pursuit thereof is no longer economically warranted.

Practice agrees that all A/R balances less than $5.00 (or such higher amount as may be authorized by Practice) will be written off on a monthly basis as “small balance w/o”. Additionally, INSYNC HCS may forward the Practice from time to time a list of recommended write-offs in the amount greater than $5.00 with an explanation for such recommendations. Practice shall have ten (10) business days to approve or provide additional information to continue follow-up efforts. Practice’s failure to reply within such time period shall be deemed as approval and INSYNC HCS shall have the right to write off such balances.

A/R follow-up functions will include the following:

• Review of claims to establish third-party liability or other payment security and patient responsibility;
• Determine status of claims as related to contractual allowance, rejected status, rebilling requirements, responsibility of secondary and tertiary payers, completeness of documentation and mandatory procedures required to obtain payment, and accuracy of insurance and demographic information;
• Investigate pending claims by contacting the insurance carrier, physician, and medical records personnel as required;
• Submit documentation for reviewed claims necessary for payment to responsible party, including claims, itemized statements, pre-certification documents, and referrals;
• Follow-up contact of responsible parties on reviewed claims (third-party payers only) to secure payment;
• Follow-up contact of responsible parties on third party to secure payment, which payment shall be made directly to Practice by responsible parties. Methods of follow up contact including but are not limited to telephone contact, tracer letters, submission of claims, payer website lookup and faxed status request to third party payers;
• Monitor electronic remittance advices, rejection rates, and explanation of benefits for prompt payment and resolutions of pending claims;
• Determine additional requirements for Claim resolution including contractual adjustments, write-offs, or identification of patient responsibility or referred for collection;
• Report as to status of Claim beyond payment including contractual adjustments, write-offs, credit balances; identification of patient responsibility (secondary claims projects) or referrals for collection (all other A/R projects);
• Practice agrees that it will respond within two (2) business days to all of INSYNC HCS’s requests for clarification and/or additional information in order to facilitate the prompt processing of claims.

PAYMENTS

All claims and patient invoices shall indicate the Practice’s designated INSYNC HCS preferred bank lockbox address or the primary office address (exceptions from utilizing Lockbox agreed upon by INSYNC HCS) for remittance purposes. Payer correspondences, EOBs, patient payments and other third party administrator (TPA) correspondence received in the lockbox will be scanned by the vendor and the scanned images will be imported in the INSYNC HCS Practice Management System to the RCM Document Manager folder and will be available for the Practice to view. If the Practice does receive any insurance correspondence, EOBs, patient payments and other TPA correspondence at their office(s), the Practice will scan all items within one (1) business day from receipt to the INSYNC HCS Practice Management System RCM Document Manager to allow INSYNC HCS to properly and timely take the appropriate action on the item. For these items, INSYNC HCS RCM staff will process the necessary paper work to ensure that all future items from these payers are sent to the Lockbox.

Where a balance continues to exist after such posting of payment, INSYNC HCS will take appropriate follow-up action, including billing a secondary payer and invoicing the patient guarantor, as appropriate. Additionally, INSYNC HCS will review all EOBs received from third party payers to determine whether the payment, contractual reduction, or decline of benefits, as the case may be, is correct. Where appropriate, INSYNC HCS will take all necessary follow-up action with such third-party payers.

If an account reflects a credit balance, INSYNC HCS shall advise Practice in writing of such credit balance and Practice shall promptly issue the refund in accordance with applicable laws and regulations. Practice shall advise INSYNC HCS once it has issued a refund so that it can be posted in the computer system by INSYNC HCS.

As a limit on writing off patient balances, Practice shall not request or require that more than three percent (3%) of the total outstanding patient balances calculated on a monthly basis be written off. If the payment is written off, INSYNC HCS will be entitled to Contingency Fee as set forth in section 3.1 of the Agreement that includes the amount written off.

REPORTS

On a monthly basis: INSYNC HCS shall generate and forward to Practice a month-end Practice Analysis Report reflecting statistical information relating to Practice’s practice and current accounts receivable.

AUDIT CONTROL

INSYNC HCS is committed to a strict Compliance Program and from time-to-time will conduct random audits of the information submitted by your Practice for billing to ensure payer and regulatory compliance.

The Practice is also expected to perform regular in-house audits of accounts, including a review of Practice’s medical documentation in order to identify, remedy, and prevent any billing errors or misconduct in various risk areas, including but not limited to the following: (i) routine waiver of copays and deductibles; (ii) soliciting, offering or receiving a kickback, bribe, or rebate; (iii) billing for services/supplies not rendered; (iv) upcoding; (v) unbundling; (vi) double-billing; (vii) medical necessity; (viii) misrepresenting diagnosis to justify services/supplies provided to patient; (ix) billing for physician services rendered by non-physicians; (x) reassignment prohibition; and (xi) failure to refund credit balances in a timely fashion.

Where billing errors are discovered by either Party, such Party shall promptly advise the other Party of same so that the Parties can jointly discuss what course of action should be taken to ensure compliance with applicable state and federal law.

SPECIAL PROJECTS

If the Parties agree upon additional services or special projects to be provided beyond what is set forth in this Exhibit C, such services shall be added to this Agreement as an Addendum.

AMENDMENTS TO THIS EXHIBIT C

INSYNC HCS may amend the terms of this Exhibit C from time to time and shall provide an updated Exhibit C to Practice at least 30 days prior to the requirement of Practice to conform to any amended terms.

ADDITIONAL PRACTICE AND INSYNC HCS RESPONSIBILITIES

The Practice will also be asked to sign as part of the implementation process a Responsibilities document outlining the responsibilities of both the Practice and INSYNC HCS. The Responsibilities document is necessary to ensure the success of the service and will be updated from time to time to comply with the industry and government compliance and overall service efficiency.