THIS BILLING INTELLIGENCE SERVICES AGREEMENT (this “Agreement”) is between Vivos Therapeutics, Inc. (“Vivos”) and the licensed dental or medical provider identified in the application and/or as more particularly described on the signature page to this Agreement (“Client” or “Provider”), and is effective as of the date Client accepts this Agreement by clicking “Accept” or signing this Agreement (the “Effective Date”). As a condition to Client’s access to the Billing Intelligence Services via this Agreement, Client must also agree to Vivos’ End User License Agreement (the “EULA”) to access and use the Vivos Aire 02 Software, which is expressly incorporated into and form a part of this Agreement. Nothing included herein shall modify the terms and conditions of Vivos Provider Terms and Conditions, if applicable to Client.
Client wishes to retain Vivos to provide medical billing services pursuant to the terms of this Agreement. In consideration of the foregoing promises and mutual covenants set forth herein, the parties agree as follows:
1. MEDICAL BILLING SERVICES.
Client hereby expressly authorizes Vivos to provide medical claim preparation services to Client for submission of medical services provided by Client that are billable to medical insurance plans (the “Services”). Vivos shall use commercially reasonable efforts to provide the Services based on the medical billing and third-party payor information provided by Client. All patient information and data provided by Client to Vivos shall be kept confidential and shall not be disclosed to anyone outside of Vivos other than to the extent necessary for Vivos to process and submit claims for the Client, including submission of such patient information to third party payors.
2. CLIENT RESPONSIBILITIES.
(a) Initial Credentialing. Client shall cooperate and assist with Vivos’ setup process in order to confirm and establish initial credentialing status with Client’s third-party payors. Client acknowledges that this process must be completed prior to Vivos’ provision of any Services.
(b) Training. Client agrees to participate in the following training programs as directed by Vivos during the term of this Agreement: (i) Vivos’ Breathing Wellness Institute in Denver, Colorado; (ii) Medical Billing courses contained in Vivos’ learning management system, Absorb; (iii) process implementation training on medical billing provided by Vivos’ Billing Intelligence Service team; and (iv) all other trainings designated by Vivos from time to time.
(c) Documentation. Client shall timely submit to Vivos all applicable letters of medical necessity (each signed by a physician), diagnoses, medical codes, Explanation of Benefits forms received from third party payors, records of payments received directly from patients, and other documentation, information, and assistance reasonably requested by Vivos for each case billed by Client to which the Services apply (collectively “Documentation”). Client’s failure to promptly provide Documentation may result in a delay of Vivos’ provision of Services, and Vivos shall incur no penalty or liability for any such delay. Client shall be responsible for ensuring the accuracy and completeness of all Documentation and for ensuring the medical necessity and appropriateness of all medical services to which the Services apply.
(d) Client Acknowledgement. Without limiting the foregoing, Client acknowledges and agrees that ultimate responsibility for all claims submitted is that of the Client. Client shall be responsible for maintaining all original source documents to enable it to verify and document the claims submitted to third party payors. Vivos shall have no liability or responsibility whatsoever regarding the accuracy or completeness of the coding or determinations regarding medical necessity. If a claim filed by Vivos is denied, it is Client’s sole responsibility to determine whether to appeal such claims; and Vivos may provide limited advice or assistance with such appeal to prove medical necessity in the case, at Vivos’ discretion. Vivos is not responsible for any denied claims or denial of appeals, as this is the decision of Client’s patient’s insurance provider.
Recurring Billing Authorization:
I CERTIFY THAT I AM THE LEGAL CARDHOLDER FOR THIS CREDIT CARD AND THAT I AM LEGALLY AUTHORIZED TO ENTER INTO THIS AUTHORIZATION WITH VIVOS. I HEREBY AUTHORIZE VIVOS TO CHARGE THE INDICATED CREDIT CARD ON A PERIODIC BASIS FOR THE AMOUNT DUE UNDER MY CONTRACT WITH VIVOS AS INDICATED ABOVE. I UNDERSTAND THAT THE PAYMENTS MAY BE EXECUTED WITHIN VIVOS’ NORMAL BILLING CYCLES AND NOT ALWAYS ON THE SAME DATE EACH MONTH. THIS RECURRING BILLING AUTHORIZATION SHALL REMAIN IN FORCE UNTIL CANCELED BY ME IN WRITING, AND I AGREE TO NOTIFY VIVOS IN WRITING OF ANY CHANGES IN MY ACCOUNT INFORMATION OR TERMINATION OF THIS RECURRING BILLING AUTHORIZATION AT LEAST 30 DAYS PRIOR TO THE NEXT SCHEDULED BILLING DATE. IF THE RECURRING BILLING AUTHORIZATION IS CANCELLED IN WRITING, THE ACCOUNT WILL BE MANUALLY INVOICED AND PAYMENT MUST BE MADE VIA CHECK, MONEY ORDER OR WIRE. I WILL NOT DISPUTE VIVOS’ RECURRING BILLING WITH MY CREDIT CARD ISSUER SO LONG AS THE AMOUNT IN QUESTION WAS FOR SERVICES RENDERED PRIOR TO MY CANCELING MY RECURRING BILLING AUTHORIZATION IN WRITING AS REQUIRED HEREIN. I UNDERSTAND THAT MY BILLING INFORMATION WILL BE SAVED BY VIVOS’ FOR ALL RECURRING FUTURE TRANSACTIONS.
AIRE O2 END USER LICENSE AGREEMENT
VIVOS THERAPEUTICS, INC. (“VIVOS”) OFFERS A NON-EXCLUSIVE, NON-TRANSFERABLE, NON-SUBLICENSABLE LICENSE TO ITS PROPRIETARY AIRE 02 SOFTWARE (THE “AIRE 02 SOFTWARE”) TO YOU UPON THE CONDITION THAT YOU ACCEPT THE TERMS OF THIS END USER LICENSE AGREEMENT (THIS “EULA”). USING THE AIRE 02 SOFTWARE INDICATES THAT YOU ACCEPT THE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN VIVOS IS UNWILLING TO LICENSE THE AIRE 02 SOFTWARE TO YOU.
Vivos grants you a limited, non-exclusive, non-transferable, non- sublicensable license to use the Aire O2 Software solely in connection with the Vivos products and services provided to you pursuant to the Vivos Provider Terms and Conditions (the “Provider Terms”), if applicable, or pursuant to a separate Billing Intelligence Services Agreement (a “BIS Agreement”). No copies of the Aire O2 Software may be made. The Aire O2 Software may contain open source software, subject to separate license terms, and Vivos has no liability for any such open source software.
You, or the practice through which you operate, will make payment for use of the Aire O2 Software pursuant to the Provider Terms or BIS Agreement, as applicable.
3. INTELLECTUAL PROPERTY RIGHTS.
Access to the Aire O2 Software provided to you is licensed, not sold. You must not remove or alter any copyright or other proprietary rights notices on any copies of the Aire O2 Software. This EULA does not grant you any rights in connection with any trademarks or service marks of Vivos. You must not use, copy, or distribute the Aire O2 Software, except as expressly permitted by this EULA. Title, interest, ownership rights, and intellectual property rights in and to the Aire O2 Software and accompanying printed materials shall remain solely and exclusively with Vivos. Any proprietary rights not expressly granted to you herein are reserved by Vivos.
4. DISCLOSURE AND USE RESTRICTIONS.
You will treat the Aire O2 Software as strictly confidential and will not use the Aire O2 Software for any purpose other than as prescribed by the Provider Terms or BIS Agreement, as applicable. You will not disclose or make available the Aire O2 Software to any entity or person whatsoever, notwithstanding the members of Provider’s practice who have a bona fide need to access the Aire O2 Software in connection with the Provider Terms or BIS Agreement, as applicable (“Authorized Users”). You will be fully responsible for the breach of this EULA by any Authorized User(s). You will not rent, lease, lend, sublicense, or in any way distribute or transfer any rights in this EULA or the Aire O2 Software to any third party without Vivos’ prior written approval, which may be withheld in Vivos’ sole and absolute discretion. You will not and will not attempt to, or allow any third party to (or make the Aire O2 Software available to any third party so that such party is able to) reverse engineer, decompile, defeat license encryption mechanisms, or disassemble the Aire O2 Software. You will use commercially reasonable controls to prevent any unauthorized use, access, or disclosure of the Aire O2 Software.
5. TECHNICAL SUPPORT; ENCHANCEMENTS.
Vivos will provide you with reasonable helpdesk technical support services in accordance with Vivos’ standard practices, as the same may be modified from time to time. Vivos may, but has no obligation to, make available a
new version, updates, patches, upgrades, enhancements, modifications, extensions, functional improvements, error corrections, revisions, or changes to the Aire O2 Software. Vivos is not required to notify you of any such changes to the Aire O2 Software.
Vivos may terminate this EULA effective immediately upon written notice. Upon termination, all rights granted to you in this EULA will immediately cease to exist and you must immediately discontinue all use of the Aire O2 Software. This EULA automatically terminates without requiring written notice from Vivos if you breach any of the terms of this EULA, the Provider Terms or BIS Agreement, as applicable.
7. DISCLAIMER OF WARRANTIES.
The Aire O2 Software is provided “as is” and Vivos expressly disclaims all warranties, conditions, or other terms, whether express, implied or statutory, including without limitation, warranties, conditions, or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. Without limiting the foregoing, Vivos does not warrant that the Aire O2 Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, Vivos does not warrant that the Aire O2 Software or any equipment, system or network on which the Aire O2 Software is used will be free of vulnerability to intrusion or attack. You acknowledge that operation of the Aire O2 Software requires an internet connection for which you are solely responsible, and that a lack of internet connectivity will prevent your use of the Aire O2 Software. You further acknowledge that internet connectivity in relation to the Aire O2 Software is provided by third parties over which Vivos has no control.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL VIVOS OR ITS THIRD PARTY SUPPLIERS OR LICENSORS BE LIABLE FOR ANY COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THIS EULA OR THE USE OF OR INABILITY TO USE THE AIRE O2 SOFTWARE, EVEN IF VIVOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, VIVOS’ AND ITS THIRD PARTYSUPPLIERS’ ANDLICENSORS’ ENTIRE LIABILITY ARISING OUT OF THIS EULA SHALL BE LIMITED TO FIVE HUNDRED DOLLARS. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
9. EXPORT PROHIBITION.
The Aire O2 Software is subject to local and extraterritorial export control laws and regulations. You will comply with such laws and regulations governing use, export, re-export, and transfer of VivosAire Software, products and technology.
10. DATA COLLECTION AND PRIVACY.
You agree that Vivos may collect anonymous statistics, such as the sequence of features used, to analyze use patterns and/or user trends to support its efforts to improve the Aire O2 Software. By using the Aire O2 Software, you agree on behalf of yourself and your Authorized Users to such data collection and further agree to allow log files of the statistics, of a relatively small and reasonable size, to be stored on your computer as a sequence of numbers, for a reasonable length of time. You understand and agree that by using the Aire O2 Software, that you may be electronically transferring information of a confidential nature. By using the Aire O2 Software, you agree that you meet the applicable legal requirements to do so and that you are solely responsible to protect any confidential information kept or retained on your local machine or servers.
11. GOVERNING LAW; WAIVER OF JURY TRIAL.
This EULA and your access to the Aire O2 Software shall be governed by and construed and enforced in accordance with the laws of Colorado, without regard to its conflicts or choice of laws principles. All disputes arising under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Colorado. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS EULA, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS EULA, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS EULA, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12. AGREEMENT TO CONDUCT BUSINESS ELECTRONICALLY.
You agree to conduct business with Vivos electronically, and that except as otherwise specifically provided herein, an electronic signature on this Agreement, or any other documents, arrangements, agreements, or notice or other communication required or permitted to be given hereunder, or pursuant or relating to this Agreement or the Aire O2 Software, shall have the same force and effect as the use of manual signatures. You further agree that your use of the Vivos Aire O2 Software and any Vivos website, as a condition of such use, you stipulate that while using the Vivos Aire O2 Software, any Vivos website and where applicable terms and conditions on any Vivos website so indicate, when you click a button labeled “I Agree” or “I Accept”, or when you type “I Agree” or “I Accept” in a space marked for such an input
by you, you will be manifesting and authenticating your assent to a binding electronic contractual agreement incorporating the terms and provisions for which the button or input area is provided. You acknowledges that (i) it is not a ‘consumer’ for purposes of the ‘ESIGN’ Act, (ii) any law requiring record retention may be satisfied by electronic record retention; (iii) an electronic record is sent when addressed to an information processing system used by recipient of which recipient can receive it, recipient ‘s system can process it, and the system used by sender is no longer in control and the recipient’s system controls the information; (iv) an electronic record is received when it arrives in the recipient’s system, as designated by the recipient for receipt of electronic information, and the recipient’s system can process it. The recipient need not open or view the electronic record for it to be considered received.
13. FORCE MAJEURE.
Vivos shall not be liable or responsible to you, nor be deemed to have defaulted under or breached this EULA, for any failure or delay in fulfilling or performing any term of this EULA, when and to the extent such failure or delay is caused by or results from acts beyond Vivos’ control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, natural catastrophe, pandemics, epidemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national, regional or local emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and
(h) other similar events beyond the control of Vivos. Vivos’ obligations under this Agreement are suspended as long as a Force Majeure Event continues.
This EULA represents the entire agreement of the parties with respect to the subject matter hereof and may be incorporated into the Provider Terms or BIS Agreement, as applicable. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. All rights and remedies provided in this EULA are cumulative and not exclusive, and the exercise by Vivos of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. The EULA may not be modified, except by written instrument signed by an authorized representative of Vivos. If any provision of this EULA is held by a court of competent jurisdiction to be
contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. You and Vivos are independent contractors, and nothing in this EULA, the Provider Terms, BIS Agreement, or any attachment thereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between them. There are no third party beneficiaries to this EULA. You may not assign any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Vivos, which may be withheld in the sole discretion of Vivos. This EULA shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
By clicking “I Agree,” or by otherwise using the Aire O2 Software, you acknowledge that you have read and accept this EULA in its entirety, and either such electronic acceptance shall be binding on both you and Vivos.