This ZOLL AR Boost Addendum (this “ZOLL AR Boost Addendum”) applies to ZOLL AR Boost, including Insurance Discovery, Insurance Verifier, Demographic Verifier, Self-Pay Analyzer, Deductible Monitoring, Claims Status, Enhanced MBI Discovery, Prior Authorization Determination, Prior Authorization Submission, Benefits Verification, Patient Financial Responsibility, Claims Clarity or related products and services, either separately or as part of ZOLL Billing, RescueNet® Billing Pro, Packaged Services, Packaged Services Premium, AR Boost or another combination of products or services (collectively, “ZOLL AR Boost”) designated in a current Order between Customer and ZOLL. Capitalized terms not defined below but used herein will have the same meaning as in the Master Software, SaaS and Services Agreement. For the avoidance of doubt, ZOLL AR Boost, except Professional Services associated with ARxChange, are SaaS, and this ZOLL AR Boost Addendum supplements, but does not replace, the SaaS Addendum.
With respect to each Customer request for ZOLL AR Boost, Customer and its employees will request, obtain and use ZOLL AR Boost solely for purposes specified by Customer in its application for such products and services (the “Application”) and comply with all applicable federal, state and local laws, statutes, rules and regulations (“Applicable Laws”), including, but not limited to, Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. §1681 and the rules and regulations promulgated thereunder; the Gramm-Leach-Bliley Act, Title V, Subtitle A, Financial Privacy, 15 U.S.C. § 6801-6809 and the rules and regulations promulgated thereunder; the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. and the rules and regulations promulgated thereunder (“FCRA”); and the Drivers Privacy Protection Act, 18 U.S.C. Section 2721 et seq. and similar or associated state laws and regulations governing the use and disclosure of drivers’ license information, as they each may be respectively interpreted from time to time, by competent legislative, regulatory or judicial authority (the “Permitted Uses”). Customer certifies that the information in the Application is true and correct in all material respects and the person signing for Customer has direct knowledge of all facts certified. Customer will promptly notify ZOLL of any material changes in such information.
3. Consumer Reports
With respect to consumer reports obtained through ZOLL AR Boost:
Customer is a healthcare provider or engages in such other business as is specified in the Application and has a permissible purpose for obtaining consumer reports in accordance with FCRA. Customer certifies its permissible purpose as being: (a) in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; (b) in accordance with the written instructions of the consumer; or (c) for a legitimate business need in connection with a business transaction that is initiated by the consumer.
- Customer certifies that it will use the consumer reports: (a) solely for Customer’s certified use(s); and (b) solely for Customer’s exclusive one-time use. Customer will not request, obtain or use consumer reports for any other purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under the Agreement to any other party, whether alone, in conjunction with Customer’s own data, or otherwise in any service which is derived from the consumer reports. The consumer reports will be requested and disclosed by Customer only to Customer’s designated and authorized employees having a need to know and only to the extent necessary to enable Customer to use the consumer reports in accordance with this Agreement; provided that Customer may, but is not required to, disclose the report to the subject of the report only in connection with an adverse action based on the report. Customer will ensure that such designated and authorized employees will not attempt to obtain any consumer reports on themselves, associates or any other person except in the exercise of their official duties.
- Customer will maintain copies of all written authorizations for a minimum of five (5) years from the date of inquiry.
- FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES WILL BE FINED UNDER TITLE 18 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
- Unless otherwise explicitly authorized in an agreement between ZOLL and Customer for scores (“Scores”), or as explicitly otherwise authorized in advance and in writing by ZOLL, Customer will not disclose to consumers or any third party, any or all such scores provided under such agreement, unless clearly required by law.
- Customer will request Scores only for Customer’s exclusive use. Customer may store Scores solely for Customer’s own use in furtherance of Customer’s original purpose for obtaining the Scores. Customer will not use the Scores for model development or model calibration and will not reverse engineer the Score. All Scores provided hereunder will be held in strict confidence and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person, except (a) to those employees of Customer with a need to know and in the course of their employment; (b) to those third-party processing agents and other contractors of Customer who have executed an agreement that limits the use of the Scores by the third party only to the use permitted to Customer and contains the prohibitions set forth herein regarding model development, model calibration, reverse engineering and confidentiality; (c) when accompanied by the corresponding reason codes, to the consumer who is the subject of the Score; (d) to government regulatory agencies; or (e) as required by law.
With just cause, such as violation of the terms of this ZOLL AR Boost Addendum or a legal requirement, or a material change in existing legal requirements that adversely affects this ZOLL AR Boost Addendum, ZOLL may, upon its election, discontinue serving Customer and cancel all Orders subject to this ZOLL AR Boost Addendum immediately.
4. Demographic Verifier and Financial Clearance Data
With respect to ID Manager Verification, ID Manager Authentication and Advanced Person Search, which are services used in Demographic Verifier, and with respect to Financial Clearance, which is a service that may be used in Self-Pay Analyzer: (A) Customer certifies that it is the user of such services and Customer and its employees will request, obtain and use such services only in the normal course of business to verify the accuracy of information submitted by the consumer and, if it is not correct, to obtain the correct information, but only to protect against or prevent unauthorized transactions, claims or other liability; (B) Customer will not request, obtain or use such services for marketing purposes nor for any other purpose, except as expressly provided herein; (C) Customer will not take any adverse action, as defined in FCRA, based on such services, against any consumer, as defined in FCRA; (D) Customer will not use such services, in whole or in part, as a factor in establishing an individual’s creditworthiness or eligibility for credit or insurance, or employment, or for any other purpose under FCRA, including not using such services, in whole or in part, to determine an individual’s eligibility for a deferred payment plan, loan or other financing arrangement, to establish the terms of such deferred payment plan, loan or other financing arrangement, or to review or collect on an individual’s existing deferred payment plan, loan or other financing arrangement; (E) for each such ID Manager Authorization (“IDMA”) service using consumer reports requested by Customer pursuant to the written authorization of the individual who is the subject of the individual IDMA service request, Customer certifies that prior to requesting such IDMA service, Customer will require each individual to expressly and affirmatively authorize Customer, ZOLL and its vendor to obtain, access and examine such individual’s credit files for the purpose of performing an identity authentication check and attempting to confirm the information submitted by such individual, and furnish information regarding the results of such identity authentication check to Customer; (F) Customer will not request, obtain or use such services in any manner that is or may be discriminatory against any individual on the basis of such individual’s status as a member of a protected class under applicable law; (G) Customer will ensure that each such individual authorization contains at a minimum the individual’s name, address, social security number (where available) and legally enforceable electronic or written authorization or signature; (H) Customer will retain copies of such authorizations for a minimum of thirty (30) months from the date of inquiry and make such authorizations available to ZOLL and its vendor upon written request; (I) failure to furnish evidence of an authorization to ZOLL and its vendor upon request will be deemed a material breach of this ZOLL AR Boost Addendum and grounds for termination; (J) no opinion is expressed regarding a consumer’s creditworthiness in rendering such services; and (K) Advanced Person Search may be accessed only within the United States.
5. Claims Clarity
With respect to Claims Clarity, Customer: (A) will not use such services to reidentify any individual that is the subject of the information provided; (B) will not use the services for model development or model calibration and will not reverse engineer the services to obtain the data underlying the services; (C) will hold information received from such services in strict confidence and will not sell, license, copy, reuse, disclose, reproduce, reveal or make accessible, in whole or in part, to any third party, such information; provided that Customer may disclose the minimum amount of information required to be disclosed as part of a federal or state independent dispute resolution process or for such other purpose approved in writing by ZOLL in advance of such disclosure; (D) represents and warrants that it is a healthcare provider, which includes physicians, hospitals or health systems, a durable medical equipment provider, a home health agency, a skilled nursing facility, a hospice provider, a professional provider-related associated or a third party acting on behalf of such entities; and (E) represents and warrants that it is not a payor or third party acting on behalf of a payor.
6. Billing Agent Responsibilities
If Customer provides third-party invoicing or billing services to healthcare providers, then it will: (A) not provide or share data from ZOLL AR Boost with any other third party (including but not limited to such providers); (B) operate independently from such providers in using such data (for example, set the criteria for using, and determining if and when to use such data); and (C) as part of such provider’s conditions of admission or other related patient consent forms, require such providers to expressly identify Customer and secure the written consent of each patient for Customer to obtain patient’s consumer report.
Without limiting any other obligations of Customer found herein, Customer will implement, and will take all measures to maintain, commercially reasonable and appropriate administrative, technical and physical security safeguards (the “Safeguards”) designed to: (A) ensure the security and confidentiality of the ZOLL AR Boost that Customer receives from ZOLL, directly or indirectly, under the Agreement; (B) protect against any and all reasonably anticipated threats or hazards to the security or integrity of such ZOLL AR Boost; and (C) protect against unauthorized access or use of such ZOLL AR Boost that could result in substantial harm or inconvenience to any consumer. Customer will immediately, but in no event later than twenty-four (24) hours after the occurrence of any of the following, notify ZOLL by phone and in writing in the event: (X) of any changes to Customer's business, or in the event any other circumstances arise, that Customer knows, or has reason to know, will have a material adverse impact on the Safeguards; (Y) Customer becomes aware that the Safeguards are otherwise insufficient to meet its obligations under this section, or (Z) Customer becomes aware of any unauthorized disclosures, or other misappropriation, of any information provided to Customer by ZOLL, including but not limited to theft, loss or interception of the ZOLL AR Boost, unauthorized use of ZOLL-supplied identification codes and passwords, unauthorized entry to the facilities where ZOLL data may have been accessible, or unauthorized release of or access to ZOLL data by an employee or agent of Customer, resulting from a breach of the Safeguards or otherwise. Customer will fully cooperate with ZOLL in mitigating any damages due to any misappropriation or unauthorized use or disclosure of any ZOLL AR Boost or other information provided by ZOLL to Customer. Such cooperation will include, but not necessarily be limited to, allowing ZOLL to participate in the investigation of the cause and extent of such misappropriation or unauthorized disclosure. Such cooperation will not relieve Customer of any liability it may have as a result of such a misappropriation or unauthorized disclosure. Customer agrees, that to the extent any such unauthorized use, unauthorized disclosure, misappropriation or other event is due to Customer's negligence, intentional wrongful conduct or breach of the Agreement, Customer will be responsible for any required consumer, public or other notifications and all costs associated therewith; provided that except to the extent required to comply with applicable law, Customer will make no public notification, including but not limited to press releases or consumer notifications, of the potential or actual occurrence of such misappropriation or unauthorized disclosure without ZOLL's prior written consent. Failure of Customer to fully cooperate with ZOLL In mitigating any damages due to any misappropriation or unauthorized use or disclosure of consumer reports or other information provided by ZOLL to Customer may result in immediate suspension or termination of the Agreement by ZOLL, at its sole discretion.
Notwithstanding anything to the contrary in the Agreement: (A) while ZOLL obtains data used for ZOLL AR Boost except Customer Content (“Data”) in good faith from a variety of third-party public and private sources (“Sources”) that ZOLL believes to be reliable in general, ZOLL does not warrant that any particular item of Data provided as a result of the ZOLL AR Boost is accurate; (B) Customer acknowledges that information from such third-party sources is sometimes entered poorly, processed incorrectly, and is generally not free from defect; and (C) DATA IS PROVIDED "AS-IS", WITH NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THOSE AS TO QUALITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, TIMELINESS, OR CORRECTNESS, AND THOSE WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER ZOLL NOR ANY THIRD PARTY FROM WHOM ZOLL OBTAINS THE DATA WILL BE LIABLE TO CUSTOMER OR TO ANY PERSON CLAIMING THROUGH CUSTOMER OR TO WHOM CUSTOMER MAY HAVE PROVIDED DATA FOR ANY LOSS OR INJURY ARISING OUT OF OR RELATED TO ZOLL’S OR THIRD PARTY’S ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE DATA. IF, NOTWITHSTANDING THE FOREGOING, LIABLITY CAN BE IMPOSED ON ZOLL OR ANY THIRD PARTY FROM WHOM ZOLL OBTAINS THE DATA, ZOLL AND ANY SUCH THIRD PARTY’S ENTIRE AGGREGATE LIABLITY WILL BE LIMITED TO DIRECT DAMAGES NOT EXCEEDING THE AMOUNT OF FEES PAID BY CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY. As between ZOLL and Customer, ZOLL will retain all right, title and interest in and to all Data. ZOLL grants Customer a restricted personal, nonexclusive, non-transferable, non-sublicensable, revocable license to obtain and use the Data solely for Permitted Uses as permitted by this ZOLL AR Boost Addendum and all applicable laws, rules, regulations and regulatory directives.
Sources are confidential, constitute ZOLL Confidential Information and may vary over time. ZOLL does not promise that any particular Source will be retained for Data, that the number of Sources will not decline or that the number of records represented by Data will not decline; provided that if such decline results in a material adverse change to the ZOLL AR Boost such that (A) the number of records represented by Data materially and adversely declines (resulting in a material diminishment of the usefulness of the ZOLL AR Boost for the purpose sought) or (B) critical data elements (such as, for example, names or phone numbers) upon which Customer relies for its business needs are no longer present, Customer will have the right to terminate the Agreement in accordance with, and subject to the provisions of, the Agreement pertaining to termination for cause. “Material” as used herein will mean that to which a reasonable person would attribute a level of significance that would impact the decision to enter into the Agreement or consummate the transactions contemplated hereunder. Data will be provided to Customer under the Agreement, in whole or in part, to the extent such information continues to be procured, compiled and collected by ZOLL in the ordinary course of its business, and ZOLL may provide Data, in whole or in part, to Customer under applicable law and agreements with Sources. In the event that any applicable law or a Source prohibits, limits or restricts the further delivery or use of Data, or any material portion thereof, then ZOLL will give Customer as much advance written notice as practicable under the circumstances. The parties will meet within twenty (20) calendar days following Customer’s receipt of any such notice to determine whether the parties are able to reach a mutually acceptable solution to carry out the terms of the Agreement; provided that if the parties are unable to reach a mutually acceptable solution within ten (10) calendar days of the parties’ initial meeting, then either party may terminate the Agreement upon at least thirty (30) calendar days’ prior written notice to the other party. Notwithstanding the foregoing, if the effective date of the applicable law or a Source demand does not allow sufficient time to initiate the review process and there is not a commercially reasonable manner in which to extend the termination to the end of said review process, then the date of termination will be said effective date.
10. Pass-Through Fees
For the avoidance of doubt, Customer will be solely responsible for, and none of the Fees set forth in an Order will be deemed to cover, pass-through fees charged directly by payors and passed-through to ZOLL from its vendors as a result of the use by Customer of ZOLL AR Boost, for which ZOLL will invoice Customer at ZOLL’s cost and for which Customer will reimburse ZOLL concurrently with the payment of Monthly Fees.
11. Notice to Users of Consumer Reports