Provider Terms and Conditions
Updated on August 1,2021
THESE PROVIDER TERMS AND CONDITIONS (TOGETHER WITH THE EXHIBITS HERETO AND NIRVANA HEALTH (AS DEFINED BELOW) DOCUMENTS REFERENCED HEREIN, THESE “STANDARD TERMS”) ARE FOR MENTAL HEALTH SOLUTIONS, INC., A DELAWARE CORPORATION, D/B/A NIRVANA HEALTH (“NIRVANA HEALTH”) AND APPLY TO THE PROVISION OF ACCESS TO THE PLATFORM (AS DEFINED BELOW) AND RELATED SERVICES PURSUANT TO THE SERVICE ORDER FORM OR OTHER DOCUMENTATION INTO WHICH THESE STANDARD TERMS ARE INCORPORATED BY REFERENCE (THE “ORDER FORM”) SIGNED OR OTHERWISE AGREED TO BY NIRVANA HEALTH AND PROVIDER (AS DEFINED IN THE ORDER FORM). EACH OF NIRVANA HEALTH AND PROVIDER MAY BE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS THE “PARTIES.” ADDITIONAL DEFINITIONS ARE SET FORTH IN SECTION 11 (ADDITIONAL DEFINITIONS). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN WILL HAVE THE MEANINGS SET FORTH IN THE ORDER FORM.
- SCOPE; GRANT OF RIGHTS; RESTRICTIONS
- Agreement. From time to time, Provider may request from Nirvana Health the provision of the Platform and/or related Services (each as defined below). After the Parties agree on the terms and conditions relating to the provision of such Platform and/or Services, they will enter into an Order Form. Each Order Form will expressly reference these Standard Terms and will contain, at a minimum, the modules of the Platform and/or Services ordered, additional responsibilities of the Parties with respect thereto (if any), applicable fees, and the Initial Term (as defined below) of the Agreement (as defined below). These Standard Terms are hereby incorporated by reference into each Order Form that references these Standard Terms to create a separate agreement between the Parties (the Order Form and these Standard Terms, the “Agreement”).
- Management Services Organization. If Provider is a management services organization, (i) Provider will check the box on the Order Form indicating the same and (ii) the Agreement between the Parties relates solely to the mental health services practice (hereinafter the “Practice”) managed by Provider and identified on the Order Form.
- Nirvana Health Platform. Subject to the terms and conditions of this Agreement:
- Access Grant. Nirvana Health will make available to Provider via the Internet Nirvana Health’s software-as-a-service platform, whereby Nirvana Health analyzes certain data provided by Provider and provides Provider with practice administration services and related reports and notifications based on Nirvana Health’s analysis of such data (the “Platform”). Nirvana Health hereby grants Provider a non-exclusive, non-transferable, non-sublicensable right to access and use the Platform solely (i) with respect to the module(s) purchased by Provider on the Order Form and (ii) for Provider’s internal business purposes, through any interface made available to Provider by Nirvana Health.
- Authorized Users. The Platform may be accessed or used only by the employees or contractors of Provider (and, if Provider is a management services organization, the employees or contractors of the Practice) who are authorized to access the Platform using a user identifier and password provided to Provider by Nirvana Health or setup by Provider using functionality provided by Nirvana Health (“Authorized Users”). Provider will not make the Platform available to any person or entity other than Authorized Users. Provider will be responsible for Authorized Users’ compliance with this Agreement and for maintaining the confidentiality of all secure login information, passwords and other information related to its and its Authorized Users’ respective accounts at all times.
- Restrictions. Provider will not, and will not, directly or indirectly, permit Authorized Users, Provider’s employees and contractors, or any other third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party; (b) copy, modify, duplicate, reproduce, translate, or otherwise create derivative works based on the Platform; (c) interfere with or disrupt the integrity or performance of the Platform; (d) reverse engineer, decompile, disassemble, re-program, or analyze the Platform (in whole or in part) or otherwise attempt to reconstruct, identify or discover the source code, object code, underlying structure, ideas, or algorithms of the Platform; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (f) remove or obscure any proprietary notices or labels of Nirvana Health on the Platform or the Nirvana Health Content (as defined below); (g) use the Platform or any information contained therein or otherwise provided by Nirvana Health or its licensors for the purposes of developing, or having developed, any products or services competitive with the Platform; or (h) otherwise access or use the Platform in a manner inconsistent with this Agreement or applicable Law.
- OWNERSHIP; RESERVATION OF RIGHTS; PROVIDER DATA
- Reservation of Rights. Subject only to the rights expressly granted to Provider under this Agreement, as between Nirvana Health and Provider all rights, title and interest in and to the Platform and all reports, information, content and materials shared with Provider in connection therewith (“Nirvana Health Content”) will remain with and belong exclusively to Nirvana Health. Provider is permitted to make a reasonable number of copies of the Nirvana Health Content in the form provided by Nirvana Health, and Provider will use the Nirvana Health Content (including any such copies) solely for Provider’s internal business purposes.
- Feedback. Provider (including its Authorized Users) may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback to Nirvana Health with respect to the Platform or Nirvana Health Content (“Feedback”). Nirvana Health will have full discretion to determine whether to proceed with the development of the requested enhancements, new features or functionality. Provider hereby grants Nirvana Health a royalty-free, fully paid-up, worldwide, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to (a) copy, distribute, transmit, display, perform, and modify and create derivative works of the Feedback, in whole or in part; and (b) use the Feedback and/or any subject matter thereof, in whole or in part, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which incorporate, practice or embody, or are configured for use in practicing, the Feedback, in whole or in part.
- Provider Data.
- Provider will be solely responsible for the data collected from Provider or by Nirvana Health on Provider’s behalf and/or otherwise provided or made available by Provider and its Authorized Users to Nirvana Health, including through the Platform, to enable the provision of the Platform to, and operation of the Platform by, Provider or otherwise to perform the Services (as defined below) (collectively, “Provider Data”). As between the Parties, Provider will retain all right, title and interest in and to the Provider Data.
- Provider hereby grants to Nirvana Health a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Nirvana Health’s contractors and service providers), right and license to copy, distribute, display, modify, create derivative works of and otherwise use the Provider Data to perform Nirvana Health’s obligations under this Agreement.
- Provider also hereby grants to Nirvana Health a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Nirvana Health’s contractors and service providers) and irrevocable license to copy, modify, process and create derivative works of Provider Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the functionality of Nirvana Health’s products and services, provided such data is not used to identify Provider, Authorized Users, or Clients (“Anonymous Data”). Anonymous Data does not constitute Provider Data. Nirvana Health may use Anonymous Data for any purpose, including combining or incorporating such Anonymous Data with or into other data and information available, derived or obtained from other customers, licensees, users, or other sources and for improving Nirvana Health’s existing products and services, developing new Nirvana Health products and services and for marketing purposes (e.g., indicating the number of customers using Nirvana Health products and services, number of insurance claims and related payments processed, and accuracy and other statistics).
- Protected Health Information. The Parties acknowledge that the Provider Data may include PHI. Nirvana Health and Provider agree to comply with the terms and conditions of the Subcontractor Business Associate Agreement previously entered into between the parties. (the “BAA”). In the event of a conflict between these Standard Terms and the BAA, the BAA will govern with respect to the subject matter thereof.
- Provider Responsibilities.
- Platform. Provider will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and notify Nirvana Health promptly of any such unauthorized access or use; (ii) use the Platform only in accordance with the documentation, applicable Laws, and the terms of this Agreement; and (iii) notify Clients eligible to benefit from the Platform and/or Services of the availability of the same.
- Qualifications. Provider will submit information to Nirvana Health on no less than a semi-annual basis regarding all Health Professionals who provide Mental Health Services to Clients who:
- possess, and keep in full force and effect, an unlimited license to practice medicine or their applicable profession in the state(s) in which the applicable Health Professional practices for Provider, and any other licenses, certifications, and registrations necessary for the provision of Mental Health Services for which the Health Professional is responsible at the Provider’s practice or (if Provider is a management services organization) the Practice, as applicable;
- if permitted by the Health Professional’s category of professional license or registration, hold and maintain currently valid, unrestricted Drug Enforcement Agency certification and controlled substance registrations; and
- have not been convicted of a criminal offense that falls within the ambit of 42 USC 1320a-7(a) or excluded, debarred, suspended or otherwise deemed ineligible to participate in any Federal health care program.
Only Health Professionals that meet the requirements in the foregoing (i)–(iii) may be an Authorized User hereunder. If Provider is an individual, it must meet the requirements in the foregoing (i)–(iii) at all times during the Term of this Agreement. Provider will (A) share with Nirvana Health details related to all Health Professionals designated as an Authorized User as reasonably requested by Nirvana Health; (B) update the roster of such Health Professionals on no less than a semi-annual basis; and (C) promptly notify Nirvana Health in writing in the event of any change in association of Health Professional with Provider’s practice or (if Provider is a management services organization) the Practice, as applicable; any new Health Professionals that Provider wishes to designate as an Authorized User; and any change in its or its Health Professional qualifications under this Section 3.1(b).
- Medical Records.
- Record Maintenance. Provider will maintain medical records of all Mental Health Services provided to Clients in a form and manner that complies with applicable Law. Provider will retain such records for a period of at least six (6) years following the date of provision of such medical service(s) or any longer period required by Law.
- Record Sharing. Provider will provide Nirvana Health with all necessary records, information, and assistance to enable Nirvana Health to perform its obligations under this Agreement. Provider will be solely responsible for ensuring the accuracy and completeness of coding associated with Claims and for ensuring the medical necessity and appropriateness of the Mental Health Services for which a bill will be submitted, and Nirvana Health makes no representations or warranties and will not be deemed responsible for the accuracy and completeness of coding associated with Claims and for ensuring the medical necessity and appropriateness of the Mental Health Services for which a bill will be submitted.
- Enrollment in Electronic Billing Services.
- Provider will enroll in EFT and ERA services of the Payer, if available.
- If Provider has purchased on the applicable Order Form the “Transact” module of the Platform, then Provider will collect all Copayments and Coinsurance payments from Clients through the Platform. Provider acknowledges that such payments will be processed through Nirvana Health’s Payment Processor (as defined in Section 4.4)
- System Access and Data Sharing.
- System Access. Provider hereby grants to Nirvana Health a non-exclusive, worldwide, royalty-free, fully paid-up right to access and use the management software, payments and administration software, and related software and systems of Provider’s practice or (if Provider is a management services organization) the Practice, as applicable, as necessary for Nirvana Health to perform its obligations under this Agreement, including to facilitate the submission and status of Claims, EOB, ERA and EFT.
- Data Sharing. In cases where Nirvana Health has incomplete data and information related to Claims, EOB, ERA, or EFT for any reason, including due to restrictions on Nirvana Health’s access to, or Nirvana’s Health inability to access, the relevant software or systems of Provider or (if Provider is a management services organization) the Practice, as applicable, or due to Payer issues (e.g., where an EOB is mailed to the Provider or Client), then:
- Provider will provide Nirvana Health with all data and information required to facilitate submission of Claims, and the same will constitute Provider Data. Provider will share with Nirvana Health the data and information set forth on Exhibit A attached hereto related to Client’s Mental Health Services session within seven (7) days of the Client session using a secure, end-to-end encrypted email to an email address provided by Nirvana Health;
- for ERA/EFT issues, Provider will forward electronic copies of ERAs/EFTs via secure, end-to-end encrypted email to an email address provided by Nirvana Health; and
- for EOBs mailed to Provider or a Client, Provider will collect, scan, and email electronic copies of the EOB to an email address provided by Nirvana Health or forward copies of EOB using certified mail (return receipt requested) to a mailing address provided in writing by Nirvana Health.
- Material Change. If Provider implements a material change to its practice or (if Provider is a management services organization) the Practice, as applicable, that would affect the ability of Nirvana Health to perform its obligations hereunder, Provider will provide Nirvana Health advance written notice no less than thirty (30) days prior to implementation of such change as to allow reasonable time for Nirvana Health to implement necessary changes to ensure smooth delivery of the Platform and Services.
- Delays. Nirvana Health is not responsible for any delays to Nirvana Health’s performance of its obligations under this Agreement due to Provider’s failure to timely comply with its obligations in this Section 3.1.
- Fees and Pricing for Professional and Clinical Services. Provider represents, warrants, and covenants that: (a) Provider is solely and entirely responsible for determining and setting all fees and prices for professional and clinical services provided to patients (hereinafter “Professional Services Fees”) by Provider and its employed, affiliated, and associated providers and clinicians, and for ensuring that all such Professional Services Fees charged by Provider to patients or third-party payors, if/as applicable, are legal and appropriate; and (b) that Provider’s Professional Services Fees are, to the best of Provider’s knowledge, legal and appropriate and set in compliance with all applicable laws and regulations regarding rate setting for professional services. Provider understands and acknowledges that: (1) Nirvana Health is being engaged pursuant to this Agreement solely as a technology provider, services vendor, and processing intermediary, is neither involved in nor responsible for any determinations regarding Provider’s Professional Services Fees; and (2) Provider shall indemnify, defend, and hold harmless Nirvana Health from any and all costs, claims, losses, and/or damages resulting from issues regarding Professional Services Fees, including but not limited to costs, claims, losses, and/or damages resulting from inquiries and/or disputes raised by third-party payors and/or government agencies.
- Nirvana Health Responsibilities.
- Platform. Nirvana Health will use commercially reasonable efforts to provide Provider with access to the Platform for the amount of Uptime set forth in the applicable Order Form between Nirvana Health and Provider, the terms and conditions of which are incorporated by reference into this Agreement. Nirvana Health will use commercially reasonable efforts to provide the Platform in a manner that minimizes errors, and interruptions in accessing the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nirvana Health or by third-party providers, or because of other causes beyond Nirvana Health’s reasonable control, but Nirvana Health will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. Nirvana Health will provide second tier technical support to Authorized Users for issues and questions arising from the operation of the Platform to the extent such issue or question requires escalation. Nirvana Health will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Provider Data that this Agreement does not expressly authorize.
- Concierge Services. The obligations of Nirvana Health set forth in this Section 3.2(b) are the “Concierge Services”.
- Claims Management Services. Provider hereby authorizes Nirvana Health to prepare, process and submit Claims to those Payers identified on Schedule 3.2(b)(i) hereto Payers on behalf of Provider and/or Health Professionals who provide Mental Health Services to patients by, through, or on behalf of Provider. Nirvana Health will use reasonable efforts to obtain reimbursement for charges for all clinical procedures and Mental Health Services provided to Clients. Nirvana Health will also use reasonable efforts to obtain permission from Clients (e.g., via email or through the Platform) to take over the Claim filing process for such Client; provided that if such Client refuses to grant such permission Nirvana Health will not be liable for any duplicate Claims filed or any errors in Client submissions. All such Claims will be submitted by Nirvana Health in Provider’s or (if Provider is a management services organization) the Practice’s name, as applicable, and utilize credentials assigned to Provider by the respective Payer. Claims will be submitted either electronically or by means of paper submission, as directed by the respective Payer. The foregoing obligations only apply to the following arrangements:
- if the applicable Mental Health Services were provided by an In-Network Provider; and
- if the applicable Mental Health Services were provided by an Out-of-Network Provider and Provider has elected to receive Claims services.
- Plan Verification: Nirvana Health will reasonably support Provider in verifying existing or new Clients’ Health Benefit Plan(s);
- Insurance Payment Posting. Insurance Payments for Claims filed on behalf of Provider will be directed to such accounts controlled by Provider as may be required by Payers. Nirvana Health will post Insurance Payments received from Payers to the Client's file, and Provider hereby authorizes Nirvana Health to bill the Client directly (on Provider’s behalf) when necessary in order to secure full payment for Mental Health Services delivered by the Provider.
- Transact Services. If Provider has purchased on the applicable Order Form the “Transact” module of the Platform, then Nirvana Health will assist with bill creation and provide payment processing services (subject to Section 4.4) for Copayments and Coinsurance payments and related book-keeping services.
- Relationship Management. Nirvana Health will appoint a dedicated relationship manager for Provider. Such relationship manager will meet (which meeting may be remote) with Provider semi-annually to update Provider on the impact of Provider’s use of the Platform and Services hereunder.
- Services. From time to time, Nirvana Health may agree to provide additional implementation, integration, consulting and other services (such services, together with the Concierge Services, the “Services”) described in a statement of work that is executed by both Parties and expressly references this Agreement (each, a “Statement of Work”). All Services will be provided in accordance with the provisions of this Agreement and the applicable Statement of Work. In providing the Services, Nirvana Health will utilize only qualified, appropriately trained, and, if/as applicable, certified or licensed personnel and will be solely responsible for assuring that such personnel are appropriately qualified and trained to provide Services under this Agreement. Each Statement of Work will contain a description of the tasks to be performed, a schedule of payments and payment terms (if applicable) and any additional terms and conditions as the Parties may wish to include. Provider will use reasonable efforts to provide Nirvana Health with the necessary items and assistance necessary for Nirvana Health to complete the Services. Any dates or times relevant to performance by Nirvana Health hereunder will be appropriately and equitably extended to account for any delays or change in assumptions due to Provider. In the event of a conflict between any term or condition of this Agreement and any Statement of Work, the applicable term or condition of this Agreement will govern unless and solely to the extent that the Parties expressly state in such Statement of Work that they intend to override the terms and conditions of this Agreement. Upon execution of any Statement of Work, the terms and conditions of such Statement of Work are hereby incorporated into and become part of this Agreement.
- Platform Subscription and Services Fees. Provider will pay to Nirvana Health the total fees as set forth on an Order Form or Statement of Work, as applicable, in accordance with the payment schedules set forth therein. Nirvana Health will invoice Provider for such fees for each Renewal Term (as defined below) in advance of the beginning of such Renewal Term, and Provider will pay such fees within thirty (30) days of the receipt of such invoice.
- Payment Terms. All fees paid are non-refundable. If payment of any fees (including any reimbursement of expenses) is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by Law, and Provider will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Nirvana Health within thirty (30) days from the time such payment is due, Nirvana Health may suspend access to the Platform until such payment is made. Nirvana Health may increase the pricing for the upcoming Renewal Term upon at least ninety (90) days’ notice (which may be sent by email) prior to the end of the then-current term.
- Net of Taxes. All amounts payable by Provider to Nirvana Health hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Provider will be solely responsible for payment of any Taxes, except for those taxes based on the income of Nirvana Health. Provider will not withhold any Taxes from any amounts due to Nirvana Health.
- Payment Processing.
- For Provider. NIRVANA HEALTH DOES NOT PROCESS DIRECTLY ANY PAYMENTS DUE HEREUNDER. To facilitate payments to Nirvana Health due hereunder via bank account, credit card, or debit card, Nirvana Health uses third-party payment processors (collectively with any other payment processing service that Nirvana Health makes available, the “Payment Processors”). Nirvana Health currently uses Finix, (“Finix”) as its Payment Processor, but reserves the right to change Payment Processors. Provider will render payment via, and additional fees will be processed by, the applicable Payment Processor. Provider hereby agrees to the applicable Payment Processor’s terms and conditions for the processing of payments, as the same may be modified by such Payment Processor from time to time (collectively, the “Payment Processor Terms”), and the representations and warranties required by Finix that are set forth in this paragraph. Information provided to any Payment Processor is governed by the applicable Payment Processor Terms. Finix’s Payment Processor Terms are comprised of, inter alia, the Finix services agreements and privacy policies (available at https://finixpayments.com). As a condition of Nirvana Health enabling payment processing services through its Payment Processor, Provider represents and warrants to Nirvana Health that: (1)any information about its payment instruments and/or bank accounts is true and that it is authorized to use the payment instrument and/or bank account, as applicable; (2)Provider is being granted the right to access and use the Payment Processor services, including but not limited to the payment platform (the “Payment Platform”) solely for Provider’s use to process transactions with its customers, clients, and patients; (3) Provider shall not reverse engineer, disassemble or modify the Payments Platform or otherwise use of the Payments Platform in violation of any applicable law; (4) neither Nirvana Health nor Finix shall be liable to Provider for damages, whether direct or indirect, incidental or consequential, arising in connection Provider’s use of the Payments Platform, and Finix shall not be liable to Provider for any damages arising in connection with this Agreement; and (5) all warranties of any kind, including any warranty of title, merchantability, fitness for a particular purpose or non-infringement, regarding the Payment Platform, are expressly disclaimed.Provider also hereby authorizes Nirvana Health to share such information and other transaction information related to its use of the payment processing services provided by the applicable Payment Processor. Provider hereby authorizes the applicable Payment Processor to store and continue billing its specified payment method even after such payment method has expired, to avoid interruptions in payment for Provider’s access and use of the Platform. Please contact the applicable Payment Processor for more information. Nirvana Health assumes no liability or responsibility hereunder for any payments made by Provider through the applicable Payment Processor or otherwise through the Platform.
- For Clients. If Provider has purchased on the applicable Order Form the “Transact” module of the Platform, Provider acknowledges that Nirvana Health uses its Payment Processor to facilitate payments of Clients’ Copayments and Coinsurance via bank account, credit card, or debit card. As such, each Client must agree to the Standard Client Terms (which incorporate the applicable Payment Processor Terms). Nirvana Health assumes no liability or responsibility hereunder for any payments made by Clients through the applicable Payment Processor or otherwise through the Platform, or if Clients refuse to agree to or breach the Standard Client Terms.
- TERM, TERMINATION
- Term. Unless earlier terminated in accordance with the terms of this Agreement, this Agreement will commence on the Effective Date and the Initial Term of this Agreement will be as set forth on the Order Form. Thereafter, unless this Agreement terminates earlier in accordance with the terms of this Agreement, this Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party delivers to the other Party written notice of the Party’s intent not to renew at least sixty (60) days prior to the end of the then-current Term. Nirvana Health may, from time to time, amend these Standard Terms, and will post such amended Standard Terms on Nirvana Health’s website at https://www.meetnirvana.com/providertermsandconditions, noting the date of the last such amendment. Upon the commencement of any Renewal Term, this Agreement will renew on the then-current version of these Standard Terms.
- Termination. Either Party may terminate this Agreement, for cause, (a) in the event of a breach of this Agreement by the other Party that is not cured within sixty (60) days (or ten (10) days in the event of non-payment by Provider) after the breaching Party receives notice of such breach; or (b) upon the commencement of any bankruptcy proceeding (or other insolvency proceeding) of the other Party or the dissolution of the other Party. In addition, Nirvana Health may terminate this Agreement immediately in the case of a breach by Provider of Section 1.3. Neither Party will incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such Party (or expiration) that complies with the terms of the Agreement whether or not such Party is aware of any such damage, loss, or expenses.
- Effect of Expiration or Termination. Except as expressly stated herein, upon expiration or termination of the Agreement, (a) all rights granted hereunder and all obligations of Nirvana Health to provide the Platform or the Services will immediately terminate; (b) Provider will immediately cease access and use of the Platform; and (c) each Party will return or destroy all copies or other embodiments of the other Party’s Confidential Information, subject to Nirvana Health’s rights in Section 2.3(c). Upon Provider’s written request within thirty (30) days after such expiration or termination, Nirvana Health will make available to Provider an export of Provider Data in Nirvana Health’s systems in a format reasonably requested by Provider, subject to Nirvana Health’s rights in Section 2.3(c). After the expiration of such thirty (30) day period, Nirvana Health may at its discretion purge Provider Data from its systems. Nirvana Health will continue to provide Concierge Services with respect to Clients that received Mental Health Services prior to the date of expiration or termination of the Agreement. Upon Provider’s written request within thirty (30) days after such expiration or termination and upon mutual agreement of the Parties, Nirvana Health will also provide support to Provider for the mutually agreed post-expiration or -termination period in exchange for the mutually agreed fees regarding Insurance Payments directly resulting from Claims processed by Nirvana Health under this Agreement.
- Survival. Sections 1.3 (Restrictions), 2.1 (Reservation of Rights), 2.2 (Feedback), 2.3(c), 4 (Fees), 5.3 (Effect of Expiration or Termination), 6 (Confidential Information), 7.4 (Exclusions), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General) and the BAA (to the extent set forth therein) will survive the termination or expiration of this Agreement.
- CONFIDENTIAL INFORMATION
- Definition. The Parties anticipate that they will exchange Confidential Information (as defined below) during the Term. “Confidential Information” means any and all tangible and intangible information, either written, oral, or in any other medium, disclosed or made available by a Party (“Disclosing Party”) to the other Party (the “Receiving Party”), including research and development, patents or trade secrets, financial information, know-how, designs, samples, processes, methodologies, manuals, vendor names, supplier lists, customer lists and other information related to clients, employee lists, databases, sales and marketing information, and computer programs, or any other confidential information or proprietary aspects of the business of the Disclosing Party. The Platform and Nirvana Health Content are Nirvana Health’s Confidential Information. The Provider Data is Provider’s Confidential Information. Information will not be considered to be Confidential Information to the extent that the Receiving Party can prove by reliable written record that such information: (a) is already known to the Receiving Party free of any restriction at the time it is obtained by the Receiving Party; (b) is subsequently learned from an independent third party free of any restriction or obligation of confidentiality and without breach of this Agreement; (c) becomes publicly available through no wrongful act of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
- Obligations. The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information. The Receiving Party will protect all Confidential Information received from the Disclosing Party with the same degree of care used by the Receiving Party to protect its own confidential information of like importance from unauthorized use or disclosure, but in no event less than a reasonable degree of care. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights and perform its obligations under this Agreement. Notwithstanding any provision of this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information, in whole or in part to the Receiving Party’s employees, officers, directors, consultants, contractors and/or professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound by written agreements (or, in the case of professional advisors, are bound by ethical duties) imposing confidentiality and nonuse obligations with respect to such Confidential Information no less restrictive than those set forth in this Section 6. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required to be disclosed by Law, court order, or subpoena, provided that the Receiving Party will exercise reasonable efforts to notify the Disclosing Party in writing prior to disclosure and will limit such disclosure to the extent legally permissible. The Receiving Party acknowledges that (a) the provisions contained in this section are reasonable and necessary to protect the legitimate business interests of the Disclosing Party; and (b) its breach of this Section 6 will cause irreparable damage to the Disclosing Party and agrees that the Disclosing Party will be entitled to seek injunctive relief from a court of competent jurisdiction as a result of any breach as well as such further or other equitable relief as may be granted by such court, without the posting of any bond or other security and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Any right, power, or remedy provided under this Agreement to the Disclosing Party will be cumulative and in addition to any other right, power, or remedy provided under this Agreement or existing in Law or in equity (including the remedies of injunctive relief and specific performance).
- WARRANTIES AND EXCLUSIONS
- Mutual. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when the Order Form is signed by both Parties.
- By Nirvana Health. Nirvana Health represents, warrants, and covenants to Provider that the Platform will substantially conform with the specifications for the Platform provided by Nirvana Health to Provider. In the event of a breach of the foregoing, Nirvana Health’s sole obligation, and Provider’s sole remedy, will be for Nirvana Health to use commercially reasonable efforts to correct the Platform.
- By Provider. Provider represents, warrants, and covenants to Nirvana Health that Provider has and will have the legal authority and all rights necessary (a) to provide the Provider Data to Nirvana Health and to comply with the BAA; and (b) for Nirvana Health to fulfill its obligations and exercise its rights with respect to the Provider Data as set forth in this Agreement. Provider is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of its activities, or those of its Authorized Users, its and employees and contractors, and (if Provider is a management services organization) the employees and contractors of the Practice, and Provider will be responsible for and indemnify Nirvana Health against all claims, damages, settlements, expenses and attorney’s fees incurred by Nirvana Health with respect to any of the foregoing.
- Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, NIRVANA HEALTH CONTENT, AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND NIRVANA HEALTH DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER ACKNOWLEDGES THAT NIRVANA HEALTH DOES NOT WARRANT THAT THE PLATFORM WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES OR THAT THE PLATFORM, NIRVANA HEALTH CONTENT, OR SERVICES WILL MEET PROVIDER’S REQUIREMENTS. NIRVANA HEALTH DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR NIRVANA HEALTH CONTENT. PROVIDER ACKNOWLEDGES THAT THE NIRVANA HEALTH CONTENT REFLECTS NIRVANA HEALTH’S SUBJECTIVE ANALYSIS, CONCLUSIONS, AND ASSESSMENTS, AND PROVIDER AGREES THAT NIRVANA HEALTH WILL HAVE NO LIABILITY TO PROVIDER WITH RESPECT TO THE NIRVANA HEALTH CONTENT, INCLUDING ANY STATEMENTS, INFORMATION, OR OTHER CONTENT CONTAINED IN THE NIRVANA HEALTH CONTENT. FURTHER, PROVIDER ACKNOWLEDGES THAT IT REMAINS RESPONSIBLE AT ALL TIMES FOR ITS (INCLUDING ITS HEALTH PROFESSIONALS’) ACTIVITIES (INCLUDING THE PROVISION OF MENTAL HEALTH SERVICES), AND PROVIDER AGREES THAT NIRVANA HEALTH WILL HAVE NO LIABILITY FOR (A) ANY ACTIONS OR INACTIONS OF PROVIDER (INCLUDING ITS HEALTH PROFESSIONALS) RESPONSE TO OR AS A CONSEQUENCE OF ANY NIRVANA HEALTH CONTENT OR ABSENCE OF NIRVANA HEALTH CONTENT OR (B) ANY MEDICAL SERVICES (INCLUDING MENTAL HEALTH SERVICES), CLAIMS, INSURANCE PAYMENTS, OR OTHER BILLING MATTERS.
- By Nirvana Health. Nirvana Health will indemnify, hold harmless and defend at its expense any claim, suit or proceeding (each a “Dispute”) brought against Provider by a third party based upon a claim that Provider’s use of the Platform as contemplated by this Agreement infringes such third party’s copyrights or misappropriates such third party’s trade secrets, and Nirvana Health will pay all reasonable costs and damages finally awarded against Provider by a court of competent jurisdiction as a result of any such Dispute or amounts payable pursuant to a settlement agreed to by Nirvana Health; provided, however, that Provider (a) promptly notifies Nirvana Health in writing of such Dispute; (b) promptly gives Nirvana Health the right to control and direct the investigation, preparation, defense, and settlement of such Dispute, with counsel of Nirvana Health’s own choosing (provided that Provider will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Dispute); and (c) gives assistance and full cooperation for the defense of same. Nirvana Health will not settle or compromise any Dispute against Provider without Provider’s written consent, which may not be unreasonably withheld, conditioned, or delayed. If the use of the Platform by Provider has become, or in Nirvana Health’s opinion is likely to become, the subject of any claim of infringement or misappropriation, Nirvana Health may, at its option, (i) procure for Provider the right to continue using the Platform as set forth hereunder; (ii) replace or modify the Platform to make it non-infringing; or (iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement. Notwithstanding the foregoing, Nirvana Health will have no liability or obligation under this Section 8.1 or otherwise with respect to any Dispute based upon (A) any Provider Data; (B) use of the Platform outside the scope of this Agreement; (C) modification of the Platform in accordance with Provider’s specifications or instructions or by any person or entity other than Nirvana Health without Nirvana Health’s express consent; or (D) the combination, operation or use of the Platform with other applications, portions of applications, product(s), data or services not provided by Nirvana Health; or (E) use of the Platform by Provider after Provider has been notified by Nirvana of claims of the potential infringement or misappropriation and that it must accordingly cease use of the Platform pending resolution of same. This Section 8.1 states Nirvana Health’s entire obligation and Provider’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
- By Provider.
- Provider will indemnify, hold harmless and defend at its expense any Dispute brought against Nirvana Health by any third party arising out of or related to (a) the Provider Data; (b) any medical services (including Mental Health Services) provided by Provider or (if Provider is a management services organization) the Practice (including by any Health Professional); or (c) any Client or Payer (including with respect to any Claims, Insurance Payments, or other billing matters), and Provider will pay all costs and damages finally awarded against Nirvana Health by a court of competent jurisdiction as a result of any such Dispute or amounts payable pursuant to a settlement agreed to by Provider; provided, however, that Nirvana Health (i) promptly notifies Provider in writing of such Dispute; (ii) promptly gives Provider the right to control and direct the investigation, preparation, defense and settlement of such Dispute, with counsel of Provider’s own choosing (provided that Nirvana Health will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Dispute); and (iii) gives assistance and full cooperation for the defense of same. Provider will not settle or compromise any Dispute against Nirvana Health without Nirvana Health’s written consent, which may not be unreasonably withheld, conditioned or delayed.
- Provider shall indemnify, defend, and hold harmless Nirvana Health from any and all costs, claims, losses, damages, or Disputes resulting from or regarding: (1) Provider’s Professional Services Fees, including but not limited to the setting of such Professional Services Fees (as set forth more fully in Paragraph 3.1(h) herein); and (2) any breaches or violations of representations, warranties, and/or contractual or other requirements regarding Provider’s access and use of third-party platforms and services that are integrated into or made accessible through the Platform or other services provided by Nirvana Health, including but not limited to the Payment Platform (representations and warranties about which are set forth more fully in Paragraph 4.4 herein).
- LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM (A) PROVIDER’S BREACH OF SECTION 1.3 (RESTRICTIONS), (B) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, AND (C) EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (I) PROVIDER’S BREACH OF SECTION 1.3 (RESTRICTIONS), (II) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, AND (III) EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PAID OR PAYABLE BY PROVIDER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- Force Majeure. Nirvana Health will not be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, epidemic, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any Law, judgment, or decree.
- Compliance with Laws; Export Control. Each Party will comply with all applicable Laws in performance of its obligations hereunder. In addition, Provider will comply with all applicable Laws in connection with the provision of Mental Health Services and in its activities (and, if Provider is a management services organization, the activities of the Practice) relating to Claims and Payers. Provider will not transfer, either directly or indirectly, the Platform, either in whole or in part, to any destination subject to export restrictions under United States Law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export Laws.
- Publicity. Neither Party will, without prior written consent of the other Party, issue or have issued a press release or other public statements or announcements regarding their business relationship or entry into this Agreement, such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Nirvana Health may display Provider’s name and logo (a) on Nirvana Health’s website and in other marketing materials solely to identify Provider as a customer and (b) as required by Law. Provider further agrees to work in good-faith with Nirvana Health on a case-by-case basis regarding mentioning Nirvana Health in public statements, press releases, or announcements regarding Provider’s products where such products include features that are enabled by Nirvana Health.
- Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party; provided however that a Party may assign this Agreement without the prior written consent of the other Party to an acquirer of or successor to all or substantially all of such Party’s business or assets to which the applicable agreement relates. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 10.4 will be null and void.
- Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- Relationship. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
- Headings; Interpretation. The headings and captions used in these Standard Terms are used for convenience only and are not to be considered in construing or interpreting this Agreement. All uses in this Agreement of “including” and similar terms will be interpreted to mean “including without limitation.”
- Severability. If any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
- Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York (the “New York Courts”) for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the New York Courts and agrees not to plead or claim in any New York Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the New York Courts.
- Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (a) delivered personally; (b) sent by confirmed telecopy or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Order Form, or such other addresses designated pursuant to this Section 10.10.
- Entire Agreement. This Agreement (including the Order Form and any Statement(s) of Work) constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.
- ADDITIONAL DEFINITIONS
- “Charge” means the monetary amount assessed by Provider for the Mental Health Services rendered by Provider to the Client.
- “Claim” means the monetary amount the Client is eligible to receive from their Health Benefit Plan for Mental Health Services.
- “Client” means the individual who receives Mental Health Services.
- “Copayment” or “Coinsurance” means the amount that the Client pays (or is required to pay) for Mental Health Services not accounted for by the Insurance Payment under the Health Benefit Plan.
- “Downtime” means is any interruption in Provider’s access to the Platform of five (5) consecutive minutes or more, excluding interruptions due to: (1) access issues resulting from or caused by the acts or omissions of Provider or its agents or employees; (2) Platform maintenance for which Nirvana has provided Provider at least twenty-four (24) hours advance notice; (3) planned releases for which Nirvana has provided Provider at least seven (7) days’ advance notice; (4) other software updates and patches for which Nirvana has provided Provider commercially reasonable advance notice given the circumstances; (5) downtime resulting from or related to payor systems and services that support Platform connectivity; (6); and force majeure events, including but not limited to internet blackouts, slowdowns or failures related to or caused by third-party internet, service, and/or cloud services providers, disasters, and disaster recovery efforts.
- “Explanation of Benefits” or “EOB” means a form, statement, or document sent to the Client by the Payer explaining the action like what medical treatment or services were provided, amount to be billed, and payments made on each Claim. EOB are sent by the Payer to both Client and Provider and provide necessary information about Claim payment information and Client responsibility amounts.
- “Electronic Remittance Advice” or “ERA” means an electronic data interchange (EDI) version of an Insurance Payment explanation provided by Payer to Provider. An ERA provides details about Insurance Payments, and, if the Claim is denied, it would contain the required explanations for such denial. The explanations include the denial codes and the descriptions, typically at the bottom of the ERA. ERA are provided by Payers to Providers.
- “Electronic Fund Transfer” or “EFT” means an electronic message used by the Payer or a subcontractor of the Payer to order a financial institution to electronically transfer funds to Provider’s account to pay for Mental Health Services. An EFT includes information such as amount being paid, name, identification of the transferring and transferee account, routing numbers, and date of Insurance Payment.
- “Health Benefit Plan” means the medical benefit coverage that the Client is eligible for with respect to Mental Health Services.
- “Health Professional” means a psychologist, counselor, clinical therapist, licensed social worker, psychiatrist, mental health nurse practitioner, psychiatric nurse practitioner, or other clinician licensed, certified, or registered under the laws of any state in the United States that is either employed or engaged by Provider or (if Provider is a management services organization) the Practice, as applicable.
- “In-Network Provider” means a Provider or (if Provider is a management services organization) a Practice, as applicable, with a legally binding financial arrangement with a Health Benefit Plan or the Payer for the Mental Health Services provided to the Client covered by the Health Benefit Plan.
- “Insurance Payment” means the monetary amount reimbursed by the Payer to the Provider for Mental Health Services.
- “Law” means any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order or other similar requirement
- (including any state or federal directive or other requirement that relates to this Agreement) enacted, adopted, promulgated or applied by a government agency that is binding on a Party—including the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the regulations codified at 45 C.F.R. Parts 160 and 164; the Health Information Technology for Economic and Clinical Health Act, including all applicable regulations and guidance issued by the Secretary of the Department of Health and Human Services—all as amended from time to time.
- “Mental Health Services” means services provided to the Client by Provider or (if Provider is a management services organization) the Practice (including by any Health Professional) to treat mental health illnesses or issues.
- “Out-Of-Network Provider” means a Provider or (if Provider is a management services organization) a Practice, as applicable, without a legally binding financial arrangement with a Health Benefit Plan or the Payer for the Mental Health Services provided to the Client covered by the Health Benefit Plan.
- “Payer” means those commercial insurance companies that sponsor the Client’s Health Benefit Plan, which also includes Mental Health Services that are identified on Schedule 3.2(b) hereto.
Supported Payer List
As contemplated by Section 3.1(e)(ii)(A), this Exhibit A sets forth the data elements to be shared with Nirvana Health by Provider in cases where direct access to the relevant software or systems of Provider or (if Provider is a management services organization) the Practice, as applicable, is not granted or is otherwise unavailable to Nirvana Health.
- Client First Name
- Client Last Name
- Client Date of Birth
- Client Phone Number
Provider/Practice Details (as applicable):
- Provider / Health Professional First Name
- Provider / Health Professional Last Name
- Provider / Practice Office Address
- Provider / Practice Phone Number
- Provider / Practice National Provider Identifier (NPI)
- Provider / Practice Taxpayer Identification Number (TIN)
- Applicable Licensure Number
- Date of Mental Health Services
For each service date and [Health Professional]:
- Diagnosis (ICD-10 DX)
- Procedure Code (CPT®)
- Mental Health Service Description
- Mental Health Service Unit
- Mental Health Service Charge