Apero Health
Services Agreement
Last updated: May 26, 2022
This Services Agreement ("Services Agreement") is made between is between you (either an individual or if you are using our services on behalf an entity, that entity) and Apero Health, Inc. ("Apero"), a medical billing software company.
If your Services Agreement contains additional terms and conditions, then those terms and conditions take precedence to the extent they conflict with any of these terms.
The agreement requires binding individual arbitration to resolve disputes rather than jury trials or class actions. Please notify us at legal@aperohealth.com if you would like to opt-out of the arbitration provisions within 30 days of acceptance of this agreement.
1.1 We provide medical billing services and software
Subject to the terms of this Agreement, Apero will use commercially reasonable efforts to obtain reimbursement for your charges for all clinical procedures and medical services (“Medical Services”) rendered on or after the Effective Date, through billing of patients and third party payers with which the you are considered a participating provider (the “Services”).
TERM
2.1. Initial term
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form. This agreement is effective on the date (the “Effective Date”) you sign an Order Form or you otherwise agree to these terms (for example, by clicking through an online agreement).
2.2. Automatic renewal
Upon the end of the Initial Term and any Renewal Term, your subscription automatically renews for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
2.3. Termination by us
We may terminate your subscription at any time by providing notice of termination to you via the email address we have on file. In the event we terminate your subscription for any reason other than your material breach of this agreement, we will give you a refund of any prepaid fees for unelapsed months of the Services. Apero shall have the additional right to terminate any specific Apero Service and/or Apero Product upon reasonable advance notice by Apero to Customer that Apero is no longer offering or providing support for the applicable Apero Service and/or Apero Product.
2.4. Termination schedule
Upon the effective date of termination, the Termination Date, Apero will cease to enter new charges into its billing system on your behalf. You shall for the next sixty (60) days after the Termination Date (the “Wind Down period”) continue to provide Apero with checks, EOB’s and other statements of receivables for all charges entered prior to the Termination Date, and Apero will be paid the agreed upon commission as outlined in 3.1 below, if applicable. Any charges not collected within the sixty (60) day period following the Termination Date will be turned over to you for collection and become your responsibility.
FEES
Sections 3.1 and 3.2 below only apply to services contracts.
3.1 Net collections
Net collections shall be defined as the total sum of all monies collected or processed by Apero for all medical services rendered by you, less amounts refunded or credited to patient or third party payer as a result of overpayments, erroneous payments or bad checks. You are also responsible for any merchant fees associated with accepting payment via credit card or ACH. With the exception of flat monthly or annual fees and subscriptions, net collections will also include self-pay and copay amounts collected by you.
3.2 Collection agency
The Base Fee shall also be charged for net collections received through collection agency recoveries.
3.3 Collection via ACH
You authorize Apero to collect the monthly payment for the Base Fee automatically via ACH. You hereby authorize Apero or its payment processor to initiate entries to your business bank checking accounts on file with Apero (using your business address on file) in order to pay amounts that you owe to Apero and, if necessary, to initiate adjustments for any transactions credited or debited in error. Apero may immediately suspend provision of the Services if your account is past due. If Payment is not received in time or the transfer is unable, the overdue amount will accrue interest, from the due date until paid, at a rate of 2.5% per month.
OPERATING PROCEDURES
This section only applies to services contracts.
4.1 Demographic information
You agree to require or to cause facilities or other sites at which you provide Medical Services to provide Apero with accurate and complete demographic, procedure and charge information, at no cost to Apero (“Demographic Information”). You acknowledge that Apero will rely on the Demographic Information in providing the Services and that the timing and amount of Net Collections generated by the Services are affected by the completeness, timeliness and accuracy of the Demographic Information and other variables, some of which are beyond the control of Apero. To the extent possible, at the request of Apero, you will ensure that the foregoing information is provided to Apero in electronic form, in a standard form and format reasonably consistent with Apero’s computer system. You will enable any EHR or Practice Management integration, as reasonably required for reporting and billing purposes.
4.2 Billing within regulations
Apero will bill and attempt to collect your charges in a manner consistent with all applicable Federal, State and Local laws and regulations and within the policies and procedures of third party payers that are made known by such payers to medical practices and billing companies or otherwise known by Apero. Apero does not provide collection agency services and you are solely responsible for the selection of a collection agency for collection accounts, if such services are to be engaged.
5. YOUR RESPONSIBILITIES
The section only applies to services contracts.
You, in supporting the success of the billing process and to facilitate optimal performance by Apero, shall:
5.1. Identify an administrative representative.
Identify one administrative and one clinical representative to whom Apero may address all matters related to Services under this Agreement.
5.2 Comply with federal and state regulations.
You will comply with all federal and state statutes, as well as all applicable third-party payer rules, and regulations applicable to billing and reimbursement activities, including, but not limited to, appropriate documentation of services in the medical record and coding.
5.3 Provide diagnosis or medical conditions.
You providers will identify the diagnosis or medical condition that supports the medical necessity of a patient’s services, if one exists. Apero shall not be responsible for claim denials, partial payments or payment reductions resulting from services that are deemed “not medically necessary” by third party payers, beyond their duty to assure that such non-payment decisions are not arbitrary or otherwise inappropriate and are not based on data entry or other clerical or computer system errors.
5.4 Provide payer contracts.
You shall provide Apero copies of all applicable payer contracts, which shall include the fee schedule agreed to between you and each payer. If you or your payer are part of an independent practice association (IPA), you shall provide Apero with all necessary documentation to understand contracted rates and bill correctly. You shall give Apero timely advance notice of any new payment contracts, HMO or PPO relationships and other contracts or market changes so that Apero may accommodate these changes, as necessary. Apero will not be responsible for denials related to contracting or credentialing with payers and will refer these to you for resolution.
5.5 Claims information and denials
You shall provide Apero accurate information regarding patient insurance coverage at the time of service, to include information on the correct entity to which claims are to be submitted. This includes information related to managed care organizations, independent practice associations, or similar entities that may be responsible for claims processing or patient care. Denials due to incorrect payer or submission information will be referred to you or your designated practice contact for follow-up. Apero will not appeal claims denied due to timely filing if updated information is not provided by the practice prior to the filing deadline.
A payer is considered non-responsive if it:
- Does not respond to first-class mail from Apero within 30 days of sending.
- Fails to answer phone calls from a representative of Apero during business hours within thirty (30) minutes of cumulative hold-time.
Denials from non-responsive payers will be turned over to you for processing. Additional services may be contracted with Apero under an amendment to your services agreement.
5.6 You shall ensure that any third party collection agency to which collection accounts are referred reports all collections and the source within sixty (60) days of receipt.
5.7 You shall maintain a bank account in your or entity's name at a U.S.-based bank approved by you, and all cash receipts will be deposited monthly into the bank account, or into a lockbox account, at your election.
6. CONFIDENTIALITY; PROPRIETARY RIGHTS
6.1 You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Apero or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
6.2 You represent, covenant, and warrant that you will use the Services only in compliance with Apero’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. You hereby agrees to indemnify and hold harmless Apero against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services. Although Apero has no obligation to monitor your use of the Services, Apero may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
6.3 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
6.4 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Apero includes non-public information regarding features, functionality and performance of the Service. Your Proprietary Information includes non-public data provided by you to Apero to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
6.5 You shall own all right, title and interest in and to your Data. Apero shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
6.6 Notwithstanding anything to the contrary, Apero shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning your data and data derived therefrom), and Apero will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Apero offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
7. WARRANTY DISCLAIMER
7.1 Apero, and its affiliates make no warranties, either express or implied, about the services, to the fullest extent permitted by law. The services are provided “as is.” No warranty is made that the services or results of use of the services will meet your needs or expectations, that the services will be timely, secure, uninterrupted or error-free or that the results that may be obtained from the services will be accurate or reliable. We also disclaim any Warranties of merchantability, fitness for a particular purpose and non-infringement. If the exclusions for Implied warranties do not apply to you under applicable law, any implied warranties are limited to 60 days from the date of purchase or delivery of the service, whichever is sooner.
8 INDEMNIFICATION AND LIMIT OF LIABILITY
8.1 Apero shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Apero is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Apero will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Apero, (ii) made in whole or in part in accordance with your specifications, (iii) that are modified after delivery by Apero, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where your use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Apero to be infringing, Apero may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for you a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and provide you a refund of any prepaid, unused fees for the Service.
8.2 You agree to indemnify and hold harmless Apero and its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, independent contractors, licensors, content providers, consultants, vendors and suppliers, and each of their respective successors and assignees (collectively “Apero Indemnitees”) from and all damages, losses, costs, expenses and other liabilities, including reasonable attorneys' fees and costs, arising from or related to any claim by your patient(s) or other third party arising out of or related to: (a) your use of the Apero’s Services; (b) your violation of any terms of this Agreement and any applicable law or the rights of another person or party; (c) Any improper or incomplete authorization provided by you to Apero to collect, use or disclose any data or content provided to Apero; (d) Any disclosures made by Apero with your express permission; and (e) Any matter for which Apero has expressly disclaimed liability in this Agreement. You further agrees to indemnify and hold harmless the Apero Indemnitees from any and all damages, losses, costs, fines, expenses and other liabilities, including reasonable attorneys' fees and costs, arising from your failure of obligations to bill and document properly, including but not limited to any false claims or otherwise fraudulent or incorrect medical charges presented by you to Apero for billing in accordance with the Services.
8.3 Notwithstanding anything to the contrary, except for bodily injury of a person, Apero and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
9. MISCELLANEOUS
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Apero's prior written consent. Apero may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Apero in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 24 months of the Effective Date, and you otherwise agree to reasonably cooperate with Apero to serve as a reference account upon request.
9.2 The Agreement, and any disputes arising out of the subject matter of the Agreement, including any non‐contractual claim, is to be governed by the laws of the State of California. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by binding arbitration in San Francisco, California, to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in a court having jurisdiction. Any legal action or proceeding arising out of or related to this Agreement, including any non‐contractual claim, that is not submitted, heard or determined by binding arbitration shall be brought exclusively in the federal or state courts located in the City and County of San Francisco, California. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any venue or inconvenient forum defense to any claim filed and maintained in such courts and disclaims its right to initiate any action or proceeding arising out of or related to this Agreement in any other court or forum. In any arbitration or legal action or proceeding arising out of or related to this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs, which, in the case of arbitration, may be determined by the arbitrator.
This Services Agreement ("Services Agreement") is made between is between you (either an individual or if you are using our services on behalf an entity, that entity) and Apero Health, Inc. ("Apero"), a medical billing software company.
If your Services Agreement contains additional terms and conditions, then those terms and conditions take precedence to the extent they conflict with any of these terms.
The agreement requires binding individual arbitration to resolve disputes rather than jury trials or class actions. Please notify us at legal@aperohealth.com if you would like to opt-out of the arbitration provisions within 30 days of acceptance of this agreement.
1.1 We provide medical billing services and software
Subject to the terms of this Agreement, Apero will use commercially reasonable efforts to obtain reimbursement for your charges for all clinical procedures and medical services (“Medical Services”) rendered on or after the Effective Date, through billing of patients and third party payers with which the you are considered a participating provider (the “Services”).
TERM
2.1. Initial term
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form. This agreement is effective on the date (the “Effective Date”) you sign an Order Form or you otherwise agree to these terms (for example, by clicking through an online agreement).
2.2. Automatic renewal
Upon the end of the Initial Term and any Renewal Term, your subscription automatically renews for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
2.3. Termination by us
We may terminate your subscription at any time by providing notice of termination to you via the email address we have on file. In the event we terminate your subscription for any reason other than your material breach of this agreement, we will give you a refund of any prepaid fees for unelapsed months of the Services. Apero shall have the additional right to terminate any specific Apero Service and/or Apero Product upon reasonable advance notice by Apero to Customer that Apero is no longer offering or providing support for the applicable Apero Service and/or Apero Product.
2.4. Termination schedule
Upon the effective date of termination, the Termination Date, Apero will cease to enter new charges into its billing system on your behalf. You shall for the next sixty (60) days after the Termination Date (the “Wind Down period”) continue to provide Apero with checks, EOB’s and other statements of receivables for all charges entered prior to the Termination Date, and Apero will be paid the agreed upon commission as outlined in 3.1 below, if applicable. Any charges not collected within the sixty (60) day period following the Termination Date will be turned over to you for collection and become your responsibility.
FEES
Sections 3.1 and 3.2 below only apply to services contracts.
3.1 Net collections
Net collections shall be defined as the total sum of all monies collected or processed by Apero for all medical services rendered by you, less amounts refunded or credited to patient or third party payer as a result of overpayments, erroneous payments or bad checks. You are also responsible for any merchant fees associated with accepting payment via credit card or ACH. With the exception of flat monthly or annual fees and subscriptions, net collections will also include self-pay and copay amounts collected by you.
3.2 Collection agency
The Base Fee shall also be charged for net collections received through collection agency recoveries.
3.3 Collection via ACH
You authorize Apero to collect the monthly payment for the Base Fee automatically via ACH. You hereby authorize Apero or its payment processor to initiate entries to your business bank checking accounts on file with Apero (using your business address on file) in order to pay amounts that you owe to Apero and, if necessary, to initiate adjustments for any transactions credited or debited in error. Apero may immediately suspend provision of the Services if your account is past due. If Payment is not received in time or the transfer is unable, the overdue amount will accrue interest, from the due date until paid, at a rate of 2.5% per month.
OPERATING PROCEDURES
This section only applies to services contracts.
4.1 Demographic information
You agree to require or to cause facilities or other sites at which you provide Medical Services to provide Apero with accurate and complete demographic, procedure and charge information, at no cost to Apero (“Demographic Information”). You acknowledge that Apero will rely on the Demographic Information in providing the Services and that the timing and amount of Net Collections generated by the Services are affected by the completeness, timeliness and accuracy of the Demographic Information and other variables, some of which are beyond the control of Apero. To the extent possible, at the request of Apero, you will ensure that the foregoing information is provided to Apero in electronic form, in a standard form and format reasonably consistent with Apero’s computer system. You will enable any EHR or Practice Management integration, as reasonably required for reporting and billing purposes.
4.2 Billing within regulations
Apero will bill and attempt to collect your charges in a manner consistent with all applicable Federal, State and Local laws and regulations and within the policies and procedures of third party payers that are made known by such payers to medical practices and billing companies or otherwise known by Apero. Apero does not provide collection agency services and you are solely responsible for the selection of a collection agency for collection accounts, if such services are to be engaged.
5. YOUR RESPONSIBILITIES
The section only applies to services contracts.
You, in supporting the success of the billing process and to facilitate optimal performance by Apero, shall:
5.1. Identify an administrative representative.
Identify one administrative and one clinical representative to whom Apero may address all matters related to Services under this Agreement.
5.2 Comply with federal and state regulations.
You will comply with all federal and state statutes, as well as all applicable third-party payer rules, and regulations applicable to billing and reimbursement activities, including, but not limited to, appropriate documentation of services in the medical record and coding.
5.3 Provide diagnosis or medical conditions.
You providers will identify the diagnosis or medical condition that supports the medical necessity of a patient’s services, if one exists. Apero shall not be responsible for claim denials, partial payments or payment reductions resulting from services that are deemed “not medically necessary” by third party payers, beyond their duty to assure that such non-payment decisions are not arbitrary or otherwise inappropriate and are not based on data entry or other clerical or computer system errors.
5.4 Provide payer contracts.
You shall provide Apero copies of all applicable payer contracts, which shall include the fee schedule agreed to between you and each payer. If you or your payer are part of an independent practice association (IPA), you shall provide Apero with all necessary documentation to understand contracted rates and bill correctly. You shall give Apero timely advance notice of any new payment contracts, HMO or PPO relationships and other contracts or market changes so that Apero may accommodate these changes, as necessary. Apero will not be responsible for denials related to contracting or credentialing with payers and will refer these to you for resolution.
5.5 Claims information and denials
You shall provide Apero accurate information regarding patient insurance coverage at the time of service, to include information on the correct entity to which claims are to be submitted. This includes information related to managed care organizations, independent practice associations, or similar entities that may be responsible for claims processing or patient care. Denials due to incorrect payer or submission information will be referred to you or your designated practice contact for follow-up. Apero will not appeal claims denied due to timely filing if updated information is not provided by the practice prior to the filing deadline.
A payer is considered non-responsive if it:
- Does not respond to first-class mail from Apero within 30 days of sending.
- Fails to answer phone calls from a representative of Apero during business hours within thirty (30) minutes of cumulative hold-time.
Denials from non-responsive payers will be turned over to you for processing. Additional services may be contracted with Apero under an amendment to your services agreement.
5.6 You shall ensure that any third party collection agency to which collection accounts are referred reports all collections and the source within sixty (60) days of receipt.
5.7 You shall maintain a bank account in your or entity's name at a U.S.-based bank approved by you, and all cash receipts will be deposited monthly into the bank account, or into a lockbox account, at your election.
6. CONFIDENTIALITY; PROPRIETARY RIGHTS
6.1 You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Apero or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
6.2 You represent, covenant, and warrant that you will use the Services only in compliance with Apero’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. You hereby agrees to indemnify and hold harmless Apero against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services. Although Apero has no obligation to monitor your use of the Services, Apero may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
6.3 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
6.4 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Apero includes non-public information regarding features, functionality and performance of the Service. Your Proprietary Information includes non-public data provided by you to Apero to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
6.5 You shall own all right, title and interest in and to your Data. Apero shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
6.6 Notwithstanding anything to the contrary, Apero shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning your data and data derived therefrom), and Apero will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Apero offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
7. WARRANTY DISCLAIMER
7.1 Apero, and its affiliates make no warranties, either express or implied, about the services, to the fullest extent permitted by law. The services are provided “as is.” No warranty is made that the services or results of use of the services will meet your needs or expectations, that the services will be timely, secure, uninterrupted or error-free or that the results that may be obtained from the services will be accurate or reliable. We also disclaim any Warranties of merchantability, fitness for a particular purpose and non-infringement. If the exclusions for Implied warranties do not apply to you under applicable law, any implied warranties are limited to 60 days from the date of purchase or delivery of the service, whichever is sooner.
8 INDEMNIFICATION AND LIMIT OF LIABILITY
8.1 Apero shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Apero is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Apero will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Apero, (ii) made in whole or in part in accordance with your specifications, (iii) that are modified after delivery by Apero, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where your use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Apero to be infringing, Apero may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for you a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and provide you a refund of any prepaid, unused fees for the Service.
8.2 You agree to indemnify and hold harmless Apero and its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, independent contractors, licensors, content providers, consultants, vendors and suppliers, and each of their respective successors and assignees (collectively “Apero Indemnitees”) from and all damages, losses, costs, expenses and other liabilities, including reasonable attorneys' fees and costs, arising from or related to any claim by your patient(s) or other third party arising out of or related to: (a) your use of the Apero’s Services; (b) your violation of any terms of this Agreement and any applicable law or the rights of another person or party; (c) Any improper or incomplete authorization provided by you to Apero to collect, use or disclose any data or content provided to Apero; (d) Any disclosures made by Apero with your express permission; and (e) Any matter for which Apero has expressly disclaimed liability in this Agreement. You further agrees to indemnify and hold harmless the Apero Indemnitees from any and all damages, losses, costs, fines, expenses and other liabilities, including reasonable attorneys' fees and costs, arising from your failure of obligations to bill and document properly, including but not limited to any false claims or otherwise fraudulent or incorrect medical charges presented by you to Apero for billing in accordance with the Services.
8.3 Notwithstanding anything to the contrary, except for bodily injury of a person, Apero and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
9. MISCELLANEOUS
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Apero's prior written consent. Apero may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Apero in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 24 months of the Effective Date, and you otherwise agree to reasonably cooperate with Apero to serve as a reference account upon request.
9.2 The Agreement, and any disputes arising out of the subject matter of the Agreement, including any non‐contractual claim, is to be governed by the laws of the State of California. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by binding arbitration in San Francisco, California, to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in a court having jurisdiction. Any legal action or proceeding arising out of or related to this Agreement, including any non‐contractual claim, that is not submitted, heard or determined by binding arbitration shall be brought exclusively in the federal or state courts located in the City and County of San Francisco, California. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any venue or inconvenient forum defense to any claim filed and maintained in such courts and disclaims its right to initiate any action or proceeding arising out of or related to this Agreement in any other court or forum. In any arbitration or legal action or proceeding arising out of or related to this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs, which, in the case of arbitration, may be determined by the arbitrator.