(an Addendum to the SuperBill Terms of Service)
Last Modified: November 2, 2022
This Addendum is entered into by and between Provider and SuperBill as of the Effective Date. The Parties agree that this Addendum supplements and is incorporated by reference into the SuperBill Terms of Service (“Terms”), and any reference to the “Terms” therein will be deemed to include this Addendum. By signing or accepting this Addendum in writing or electronically, you agree to this Addendum and affirm your acceptance of the Terms. The Terms and this Addendum, govern your use of the “Services,” whereby SuperBill may purchase Receivables, and also makes available to the Patients a method to pay such Receivables.
The Parties further agree as follows:
Unless otherwise defined in this Addendum, terms defined in the Terms have the same meanings when used in this Addendum. In this Addendum, the following terms will have the following meanings:
(a) “ACH” means an Automated Clearing House transaction processed on the network sponsored by the National Automated Clearing House Association.
(b) “Addendum” means this SuperBill Receivables Purchase and Payment Services Addendum.
(c) “Bank Account” means a business demand account at a depository institution in the United States acceptable to SuperBill in its sole discretion.
(d) “Collections” means, with respect to any Receivable, all amounts collected in respect of such Receivable pursuant to the applicable Patient Contract with respect to such Receivable, together with any proceeds of collateral and other amounts obtained through enforcement of, or exercise of remedies under or in connection with, such applicable Patient Contract.
(e) “Confidential Information” means any proprietary information, technical data, demographic information, Patient data, trade secrets, or know-how, including research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by either Party either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment; but excludes any such information that: (i) was lawfully in a Party’s possession before receiving it from the other Party; (ii) is provided in good faith to one Party by a third party without, to such Party’s knowledge, breaching any rights of the other Party; (iii) is or becomes generally available to the public other than through a violation of this Addendum or the Terms; or (iv) was or is independently developed without the use of or reference to the Confidential Information.
(f) “Discount” means the amount that SuperBill charges Provider for a Receivables Purchase Transaction.
(g) “Dispute” means a situation in which a Patient or other payor questions any goods or services underlying a Receivable or otherwise asserts any offset, set-off, defense, claim, counterclaim, dispute, deduction, reduction, discount, adjustment, allowance, right of return, right of recoupment, or warranty claim of any kind relating to such goods or services; and is unwilling to pay the Receivable or a portion of the Receivable. Disputes between the Patient and Provider may arise for many reasons, including: (i) goods or services were not provided as agreed or contracted; (ii) cancellations or returns; (iii) damaged or defective goods or services; (iv) goods not received or services not performed; (v) dissatisfaction with goods or services provided; (vi) malpractice; and (vii) billing errors. A Patient’s financial inability to pay a Receivable, such as due to Patient’s insolvency, is not a Dispute.
(h) “Effective Date” means the date on which Provider signs or otherwise accepts or agrees to this Addendum.
(i) “Lien” means any lien, liability, claim, charge, restriction, condition, option, right, security interest, hypothecation, pledge, claim, set-off, offset, participation, encumbrance, or other similar right, of any kind or nature whatsoever or any other rights or interests that may be inconsistent with a transaction contemplated in or adverse to SuperBill’s interests under this Addendum.
(j) “Party” or “Parties” means Provider or SuperBill, individually or collectively.
(k) “Patient” means the natural person to whom Provider has provided goods or services, or if such natural person is a minor or lacks legal capacity then such natural person’s parent or legal guardian, as applicable.
(l) “Patient Contract” means, with respect to any Receivable, any order, invoice, receipt, note, loan agreement, installment agreement, trade credit agreement, contract, or other document or agreement evidencing Provider’s right to receipt of payment on account of such Receivable.
(m) “Provider,” “you,” and “your” means the provider of goods or services identified on the signature page and its permitted designees, assignees, and successors.
(n) “Purchase Limit” means the maximum dollar amount of outstanding Purchased Receivables allowed at any point in time to Provider. For purposes of this definition, outstanding Purchased Receivables are Purchased Receivables for which Provider has received the Purchase Price, but the corresponding Patient payment (or Repurchase Price, if applicable) has not yet been received by SuperBill.
(o) “Purchase Price” means, with respect to any Receivable purchased by SuperBill from Provider from time to time hereunder, the face (gross) amount of such Receivable, minus the Discount.
(p) “Purchased Receivable” means a Receivable (excluding any Provider obligations or liabilities) or any portion thereof that SuperBill purchases from Provider by paying the Purchase Price.
(q) “Receivable” means the right to payment owed to Provider by a Patient arising out of the provision of goods and/or services by Provider to such Patient, and any other related rights. A Receivable, if a Purchased Receivable, also includes any Related Assets.
(r) “Receivables Purchase Transaction” means a transaction relating to the purchase by SuperBill from Provider of a Receivable.
(s) “Related Assets” means, with respect to any Receivable, (i) all Collections on account of such Receivable, (ii) an electronic copy of the Patient Contract evidencing such Receivable, (iii) electronic, executed copies of any modifications, amendments, supplements, or addendums to such Patient Contract, and (iv) all books and records related to any of the foregoing.
(t) “Repurchase Price” means, with respect to any Purchased Receivable, the Purchase Price attributable thereto, minus any amounts received in full and final credit by SuperBill from a Patient in respect of such Purchased Receivable, plus the Discount.
(u) “SuperBill,” “we,” “us,” and “our” means Superbill, Inc., a Delaware corporation, and its designees, assignees, and successors.
(v) “SuperPay” has the meaning set forth in Section 2(b)(i).
(w) “Services” has the meaning set forth in the preamble of this Addendum.
(x) “Terms” has the meaning set forth in the preamble of this Addendum.
Provider agrees that:
Before Provider may access the Services, SuperBill may conduct a due diligence evaluation of and approve, in its sole discretion, Provider for such access. SuperBill’s due diligence of Provider (including its personnel) may include evaluating any history of litigation, licenses, and complaints, historic chargeback rates and losses, tax returns, legal status, financial background and overall financial health, professional qualifications, relationships with any insurers or governmental bodies or programs, the nature or operation of Provider’s business, and any other information reasonably requested by SuperBill. Provider authorizes SuperBill to obtain business credit reports and make other inquiries of any financial institution, governmental body or program, insurer, lender, and trade credit references identified by Provider, and other information sources as SuperBill deems appropriate. Provider agrees to provide all information that SuperBill may reasonably request while performing such due diligence. SuperBill reserves the right at any time, in its sole discretion, to reassess Provider’s eligibility for the Services.
SuperBill will use commercially reasonable efforts to make the Services available to you and to enable your Patients to pay Receivables using the SuperPay feature of the Services, during the term of this Addendum. For the avoidance of doubt, nothing in this Addendum is intended to create a borrower/lender relationship between you and us.
(i) SuperPay. SuperBill will provide Patients the SuperPay service as an option to pay Receivables (“SuperPay”), subject to Provider’s satisfaction of the conditions set forth in Exhibit A and any other requirements of SuperBill to integrate SuperPay into Provider’s systems. When a Patient enrolls in SuperPay to pay one or more Receivables, SuperBill will obtain the Patient’s authorization to charge or debit the Patient’s bank account or another payment method supported by SuperPay from time to time for payment of the Receivable, if the Receivable is eligible for payment via SuperPay. We may change the payment methods we accept from Patients at any time in our sole discretion. SuperBill may purchase from Provider the Receivable, as set forth in Section 2(b)(ii) and Section 4. Following such enrollment and authorization, SuperBill will process and receive the Patient’s payment for the Receivable. You understand that the separate Patient-facing SuperPay agreement and any Patient payment authorization is strictly between SuperPay and the Patient. By authorizing a payment through SuperPay, the Patient consents to the authorization and SuperBill’s collection of up to the full amount of each Receivable, plus applicable fees, if any. Provider has no authorization to take a payment from the Patient in respect of a Receivable for which such an enrolled Patient has authorized payment via SuperPay.
(ii) Receivables Purchase. In respect of Receivables for which a Patient enrolled in SuperPay has an active, unrevoked payment authorization to pay via SuperPay, SuperBill may purchase such Receivables as set forth in Section 3 of this Addendum.
Although the Services may help Provider offer trade credit terms to Patients, as evidenced by Patient Contracts, Provider is solely responsible for designing the trade credit terms offered to its Patients, underwriting and making credit decisions regarding its Patients, and providing any disclosures to Patients, each in compliance with applicable law.
Provider will use the Services only within the United States, and any transactions relating to the Services will also occur only within the United States and only with Patients in the United States.
Provider will not impose on any Patient any interest, surcharge, penalty, or fee (including service fees, late fees, credit card surcharges, and convenience fees) in connection with Patient’s use of SuperPay; and Provider will not charge any Patient any price for goods, services, or transactions in connection with Patient’s use of SuperPay that are greater than any price imposed on goods, services, or transactions that do not involve Patient’s use of SuperPay.
Provider represents, warrants, and covenants on a continuing basis that the Bank Account is and will be: (i) established and maintained by Provider in good standing at a depository institution in the United States, the deposits of which are insured up to applicable limits by the Federal Deposit Insurance Corporation; (ii) titled in Provider’s legal name; (iii) a business demand account; (iv) used solely for Provider’s business operations and not for any personal, family, household, or other consumer purposes; (v) able to transact and process ACH account debits. Provider will not change the Bank Account without SuperBill’s prior written consent, which will not be unreasonably withheld. SuperBill is not responsible for any losses that result from Provider’s failure to notify SuperBill or obtain SuperBill’s approval for any changes to the Bank Account. Provider authorizes SuperBill to initiate an ACH account debit from the Bank Account for any amount owed by Provider to SuperBill under this Addendum. SuperBill is not responsible for any non-sufficient funds fees, overdraft fees, or other fees that may be incurred if the Bank Account has insufficient funds or for any other fees or charges assessed by Provider’s depository institution. Within two business days of the Effective Date, Provider must check with its depository institution to determine if the Bank Account has an ACH account debit block or filter to reject unauthorized ACH account debits, and, if so, authorize SuperBill to process ACH account debits on the Bank Account. Provider will notify SuperBill immediately if any transactions on the Bank Account contemplated by this Addendum are not so authorized, and in that event, SuperBill may terminate or suspend provision of the Services. Any revocation of an authorization, or failure to provide SuperBill with the requisite authorization to conduct any transaction under this Addendum, does not and will not affect Provider’s payment obligation to SuperBill. If any SuperBill ACH transaction is returned due to an ACH account debit block, filter, or any other reason, Provider must promptly pay any resulting fees or charges, including any that may be assessed on SuperBill.
Subject to your rights and obligations regarding the use and protection of SuperBill’s Intellectual Property Rights and Marks, as set forth in this Addendum and the Terms, you agree to prominently display the SuperBill or SuperPay name and logo anywhere that you identify or describe the payment methods available to your Patients for paying Receivables, and in any event no less prominently than you display such other available payment methods. You agree that any such display, identification, or description, will be accurate, will not be unfair, deceptive, or abusive, and will comply with applicable law and licenses to use such Marks. You may not discriminate against SuperBill or SuperPay, discourage use of SuperPay in any way, or favor any other payment method available to your Patients over SuperPay.
Provider agrees to establish and maintain records of the Patient Contracts and of goods or services performed, delivered, shipped, or provided to the Patient, from which each Receivable arises, including, as may be required by the payment networks, proof of performance, delivery, shipment, or provision of such goods or services to the Patient. Provider is solely responsible for performing, delivering, shipping, or providing the goods or services to the Patient, from which each Receivable arises.
Provider represents, warrants, and covenants that it will not request or obtain any bank account information, payment card numbers, payment credentials, or other non-public personal or financial information from the Patient in connection with the Patient’s use of SuperPay.
Provider will use industry-standard security and fraud prevention measures to prevent fraudulent and unauthorized use of the Services by Provider or the Patient. Provider bears sole responsibility for any fraudulent or unauthorized use of the Services, or chargebacks associated with fraudulent or unauthorized use of the Services.
SuperBill may use one or more financial institutions or payment processors in order to provide the Services.
In the event any payment charge or transaction made by Provider or by a Patient in connection with the Services is rejected for insufficient funds or any other reason, SuperBill may, at its discretion, retry the transaction up to two additional times, unless prohibited by law or payment network rules. Provider understands that SuperBill or the financial institution that issued or holds the selected payment method may charge a fee each time a transaction or attempt is returned unpaid. In the event of a return or chargeback of any Patient payment, Provider agrees to cooperate with SuperBill to remedy or resolve the issue underlying the return or chargeback.
Provider (including its personnel) will comply, at Provider’s expense, with all applicable laws, regulations, rules, ordinances and orders of governmental bodies having jurisdiction over Provider, its business, and its personnel, and the rules and guidelines of any payment network used to process a transaction in connection with the Services, including the Rules and Operating Guidelines of the National Automated Clearing House Association (NACHA) and the payment card network rules. Provider will comply with all terms of the policies, procedures, and guidelines of SuperBill governing the Services. We reserve the right to amend, modify or change our policies, procedures and guidelines, and you must comply fully with all of them in their then-current form.
We may refuse any SuperPay transaction for any reason in our sole discretion. We may temporarily or permanently refuse to make SuperPay available for future transactions if Provider is in breach of this Addendum or the Terms, or if SuperBill has reason to doubt collectability of such future transactions.
You will promptly notify us of, and assist us in diagnosing, any failures in the Services. We will use commercially reasonable efforts to repair any failures in the Services or otherwise arrange for necessary maintenance for the Services. We cannot guarantee that any such repair or maintenance efforts will be successful. If our repair or maintenance efforts are not successful within 14 business days, you may terminate this Addendum in accordance with Section 9 below. Your right to terminate constitutes your only remedy, and our only liability, for any interruptions, outages, or others delays in the Services.
Provider will offer for sale to SuperBill any Receivable owed to Provider by a Patient, where such Patient enrolled in SuperPay and has an active, unrevoked payment authorization to pay the Receivable via SuperPay. SuperBill may decide to purchase, but is not obligated to purchase, any such Receivable that Provider offers for sale to SuperBill. No Receivable owed by a Patient who is not enrolled in SuperPay or who does not have an active, unrevoked payment authorization to pay via SuperPay, may be offered or sold by Provider to any person other than SuperBill, unless the Receivable first has been offered to and declined by SuperBill in accordance with the terms of this Addendum.
SuperBill may set a Purchase Limit and may from time to time change the Purchase Limit in its sole discretion. SuperBill will notify Provider of the imposition of a Purchase Limit and any changes to the Purchase Limit if required by applicable law.
SuperBill will charge, and Provider agrees to pay, the Discount with respect to each Purchased Receivable. For each Receivables Purchase Transaction, the Discount is zero percent (0%) of the face (gross) amount of the Purchased Receivable, provided that Provider successfully charges and accepts the Purchase Price to SuperBill’s debit card according to the instructions that we provide you, as updated from time to time. If Provider charges or accepts the Purchase Price using any other method, then the Discount will be the amount set by SuperBill in its sole discretion, up to four percent (4%) of the face (gross) amount of the Purchased Receivable. Payment of the Discount is due immediately upon SuperBill’s purchase of such Receivable.
For each Receivables Purchase Transaction agreed to by SuperBill, Provider will charge the Purchase Price to SuperBill’s debit card according to the instructions that we provide you, as updated from time to time. Upon Provider’s initiation of such a charge to SuperBill’s debit card, all of Provider’s right, title, and interest in the Purchased Receivable, including any rights to payment, are absolutely and irrevocably sold, transferred, and assigned to SuperBill. SuperBill does not assume any liabilities or obligations related to any Purchased Receivable; any such liabilities and obligations remain solely with Provider. All taxes incurred by Provider or SuperBill in such transactions will be borne by Provider.
With respect to Receivables Purchase Transactions, the relationship between the Parties is of seller (i.e., Provider) and purchaser (i.e., SuperBill) of Receivables; the Parties’ relationship is not one of lender and borrower. SuperBill’s right to receive payment on account of any Purchased Receivable is generally non-recourse. This means that if the Patient pays SuperBill an amount that is less than the amount of the Purchased Receivable—for example, if the Patient subsequently becomes insolvent—and Provider has not breached this Addendum and the applicable Purchased Receivable is not subject to a repurchase under Section 4(k), then Provider will have no payment obligation to SuperBill on such Purchased Receivable.
All Purchased Receivables will be serviced, collected, and administered by SuperBill, with full right to take any action in doing so, including changing the terms of any Purchased Receivable. Any such action could adversely affect, including reducing the value of, any Receivable that SuperBill does not purchase from Provider, and Provider agrees that SuperBill will have no liability for any such effects. Provider authorizes SuperBill to notify each Patient of SuperBill’s interest in any Purchased Receivable owed by such Patient. If instructed by SuperBill, Provider will immediately (i) notify the relevant Patient in writing that SuperBill has purchased the Purchased Receivable and (ii) provide SuperBill with any and all requested contact information related to such Patient. If Provider receives any payment on a Purchased Receivable from a Patient, insurer, governmental body or program, or any other person, Provider must notify SuperBill immediately, segregate the amount of such payment in trust for SuperBill’s benefit, and immediately remit the amount of such payment to SuperBill. Provider will provide SuperBill any requested assistance regarding servicing, collecting, and administering any Purchased Receivable and facilitating payment of any Purchased Receivable.
Provider acknowledges and agrees that it is intended that the conveyance of all right, title, and interest in and to the Purchased Receivables is and will be an absolute and irrevocable sale, conveyance, and transfer conveying title, free and clear of any Lien, and that such Purchased Receivables will not be part of Provider’s estate (or bankruptcy estate) in the event of an insolvency proceeding with respect to Provider (which will include, for the avoidance of doubt, the filing of a decree or order for relief by a court having jurisdiction in respect of Provider or any substantial part of its property in an involuntary case under Title 11 of the United States Code or any other state or federal applicable insolvency law now or later in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official for Provider or for any substantial part of its property, or ordering the winding-up or liquation of Provider’s affairs, or the commencement by Provider of a voluntary case under any applicable insolvency law now or later in effect, or the consent by Provider to the entry of an order for relief in an involuntary case under any such law, or the consent by Provider to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official for Provider or for any substantial part of its property, or the making by Provider of any general assignment for the benefit of creditors, or the failure by Provider to pay its debts as such debts become due, or the taking of Provider of any action in furtherance of any of the foregoing). It is not intended that such conveyance be deemed a pledge of the Purchased Receivables to SuperBill to secure a debt or other obligation of Provider. If, however, notwithstanding such intention, the purchase and sale provided for in Section 4 is determined to be a transfer for security, then this Addendum will be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the Uniform Commercial Code, and Provider grants to SuperBill a first priority security interest in, and lien on, all right, title, and interest in and to the Purchased Receivables, now existing or later arising or created, to secure the prompt and complete payment of any loan deemed to have been made, together with all of the other obligations of Provider under this Addendum. SuperBill will have, in addition to the rights and remedies that it may have under this Addendum, all other rights and remedies provided to a secured creditor under the Uniform Commercial Code and other applicable law or equity, which rights and remedies will be cumulative. Provider authorizes SuperBill to file one or more financing statements (including any continuation or amendment) consistent with the applicable Uniform Commercial Code, identifying Provider as “debtor” and/or “seller,” in any applicable filing office in any applicable jurisdiction that SuperBill deems necessary or desirable in order to perfect or give notice of the irrevocable purchase and sale of the Purchased Receivables and/or the security interest granted by Provider in such Receivables and Related Assets under this Section 4(g). Any such financing statement may state that such sale is a sale and not an assignment for security and may state that Provider is prohibited from obtaining any financing that impairs the value of the Purchased Receivables or SuperBill’s right to collect or realize same.
Provider must notify SuperBill of any Dispute within five days of becoming aware of it. Resolving Disputes is solely the responsibility of Provider. Provider will work directly with Patient in good faith to SuperBill the Dispute. Provider will provide SuperBill periodic updates, as requested by SuperBill, regarding the status of the Dispute. A Dispute is resolved when Patient pays the full Receivable balance (or unpaid remainder of such balance) to Provider. If Provider is unable to resolve a Dispute related to a Purchased Receivable within ten days, or otherwise adjusts the amount or changes the payment terms or due date of a Purchased Receivable that is subject to a Dispute, Provider must repurchase the Purchased Receivable and pay to SuperBill the Repurchase Price immediately upon demand. SuperBill is authorized to initiate ACH account debits from the Bank Account in the amount of the Repurchase Price. In the absence of a Dispute, Provider will refer to SuperBill any Patient who asks Provider to adjust the amount or change the payment terms or due date of a Purchased Receivable.
Provider will not take any action or make any omission (including (i) adjusting or allowing an adjustment to the amount or changing the payment terms or due date of a Purchased Receivable, (ii) selling, transferring or assigning, or attempting to sell, transfer, or assign, a Purchased Receivable or any interest therein to any other person; and (iii) placing or allowing placement of a Lien on any Purchased Receivable) that has, individually or in the aggregate, an adverse effect on any Purchased Receivable or on the ability to collect on any Purchased Receivable.
Provider will take all actions requested by SuperBill, as applicable, to preserve and protect SuperBill’s right, title, and interest in and to any Purchased Receivable and to realize Patient payment in full on any such Purchased Receivable.
If Provider breaches any of its Receivable-level representations, warranties, or covenants in Section 4(i) or Section 5(b) with respect to any Purchased Receivable, Provider must give SuperBill notice of any such breach immediately upon becoming aware of it. Upon discovering any such breach (through Provider or otherwise), SuperBill may require Provider, and Provider hereby agrees, to repurchase the related Purchase Receivable from SuperBill by paying the Repurchase Price immediately upon demand. Provider hereby authorizes SuperBill to initiate ACH account debits from the Bank Account in the amount of the Repurchase Price.
Provider represents, warrants, and covenants on a continuing basis: (i) Provider is and will be duly organized business entity, validly existing, and in good standing under the laws of its organizational jurisdiction, duly qualified to do business in each jurisdiction where it conducts its business, and have and will have the full power and authority to carry on its business in the manner conducted as of the date of this Addendum; (ii) Provider has and will have full power and authority to enter into, deliver, and perform all its obligations under this Addendum, and it has and will have been duly authorized to do so by any necessary organizational action; (iii) there are and will be no laws, organizational instruments, contracts, or any other circumstances that would conflict with or prevent Provider from entering into or performing its obligations under this Addendum; (iv) the individual executing this Addendum on Provider’s behalf is at least 18 years of age and has the authority and legal capacity necessary to bind Provider; (v) following execution and delivery, this Addendum constitutes the valid and binding obligation of Provider, enforceable against Provider in accordance with its terms; (vi) Provider has and will maintain insurance in such amounts and against such risks as are reasonably necessary to protect its business and will provide proof of such insurance to SuperBill upon reasonable request; (vii) Provider (including its personnel) is and will be in possession of and compliance with all licenses, permits, approvals, consents, and other authorizations required by any governmental body or program to conduct its business; (viii) Provider (including its personnel) is and will be in compliance with all laws, regulations, ordinances, orders, and other requirements of any governmental body or program; (ix) Provider (including its personnel) is not and will not be a target of any economic or trade sanctions issued or administered by any governmental body; (x) all tax returns and tax reports, and all taxes due and payable or required to be filed by Provider have been or will be filed and paid, on a timely basis (including any extensions); (xi) Provider has no and will have no material liabilities and no material contingent liabilities, except those which Provider disclosed to SuperBill in writing before the Effective Date and except current liabilities incurred in the ordinary course of business; (xii) Provider is not and will not be subject to any Lien, except those which Provider disclosed to SuperBill in writing before the Effective Date and except those incurred in the ordinary course of business; (xiii) Provider will promptly notify SuperBill of any significant change or other development that has or may have a material adverse effect on or a significant change in Provider’s business, and Provider agrees to provide to SuperBill, upon request, any information related to Provider’s business or the transactions contemplated by this Addendum; (xiv) there is and will be no action, suit, claim, inquiry, investigation, or legal, administrative, or arbitration proceeding pending or currently threatened, whether at law, in equity, or before any governmental body, against Provider; (xv) Provider has not declared bankruptcy within the past seven years preceding the Effective Date, has not consulted with a bankruptcy attorney within the past six months preceding the Effective Date, and is not and will not contemplate or anticipate the filing of a bankruptcy or other insolvency proceeding, or closing or materially modifying Provider’s business; (xvi) Provider is and will be solvent and capable of fulfilling its obligations under this Addendum, and Provider has not been having and will not have any difficulty paying amounts due to others in full and when due; (xvii) and any information, materials, data, content, or documents Provider directly or indirectly provides to SuperBill are true, correct, and complete, and nothing material has been omitted; and (xviii) Provider has entered into this Addendum solely for business purposes and not for any personal, family, household, or other consumer purposes.
For each Purchased Receivable, Provider makes the following representations and warranties as of the time of purchase by SuperBill: (i) Provider holds good and marketable legal title to the Purchased Receivable, free and clear of any Liens and restrictions on assignment or transfer; (ii) Provider has not sold, pledged, assigned, or encumbered the Purchased Receivable; (iii) no person has any rights, interest, or claims in or to the Purchased Receivable; (iv) the Purchased Receivable represents the amounts owed by the Patient for goods and services actually provided by the Provider, at the prices or rates for such goods or services disclosed to the Patient and agreed to by Provider and Patient in the associated Patient Contract, and the Purchased Receivable is not and will not be subject to any adjustment or reduction in value resulting from Provider’s decisions, actions, or omissions, and is presently and unconditionally owing; (v) the Patient’s original payment term on the Purchased Receivable is 90 days or less; (vi) the Purchased Receivable is not past due and represents amounts owed by the Patient arising from Provider’s actual and timely prior performance, delivery, shipment, or provision of goods or services to the Patient in the ordinary course of Provider’s business, and does not include amounts owed by Patient arising from goods or services that have not been performed, delivered, shipped, or provided or from no-show or similar fees; (vii) the Purchased Receivable is not payable by Medicaid, Medicare, or any other federal, state, or local governmental body or program, any insurer, or any other person except Patient; (viii) the Patient who received goods or services from Provider is a natural person; (ix) the Patient has enrolled in SuperPay and has an active, unrevoked payment authorization to pay the Purchased Receivable via SuperPay; (x) the Purchased Receivable is not subject to any Dispute; (xi) no agreement has been made under which the Patient may claim any deduction or discount against the Purchased Receivable; (xii) the Patient is liable for the full amount of the Purchased Receivable and has not objected to its payment or the quality or quantity of the goods or services performed or provided; (xiii) the Purchased Receivable has not been modified, dismissed, settled, or paid; (xiv) there has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of any person with respect to the Purchased Receivable or its underlying goods or services; (xv) Provider has no knowledge that the Patient has filed or intends to file for bankruptcy or receivership, or has been having any difficulty paying or intends not to pay amounts due to any person in full and when due; (xi) Provider (including its personnel) were and are in possession of and compliance with all licenses, permits, approvals, consents, and other authorizations required by any governmental body to perform, deliver, ship, or provide to the Patient the goods or services underlying the Purchased Receivable; (xii) Provider (including its personnel) were and are in compliance with all laws, regulations, ordinances, orders, and other requirements of any governmental body for the performance, delivery, shipment, or provision to the Patient of the goods or services underlying the Purchased Receivable; (xiii) and any information, materials, data, content, or documents Provider directly or indirectly provided to SuperBill in connection with a Purchased Receivable are true, correct, and complete, and nothing material has been omitted.
SuperBill may set off any Discounts, Repurchase Prices, costs, expenses, indemnification amounts, and any other amounts Provider owes SuperBill, as applicable, against any Purchase Prices or other amounts owed by SuperBill to Provider.
Neither Party shall use the other Party’s Confidential Information for any purpose whatsoever outside of the scope of this Addendum, nor shall either Party disclose the other Party’s Confidential Information to any third party without the prior written consent of the other Party. Each Party further shall take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information. Each Party shall limit access to Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this Addendum and shall be responsible for any breach of this Section 7 by such employees, contractors, and agents. It is understood that each Party’s Confidential Information shall remain the sole property of such Party. In the event that either Party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any Confidential Information, such Party will, to the extent legally permissible, provide the other Party with immediate notice of such circumstances and will limit such disclosure to only what is specifically required.
To evaluate your compliance with this Addendum and the Terms, we may from time to time request access to and audit your premises, business, operations, systems, transaction processing terminals, books, records, documents, data, and information. You will maintain accurate and complete books and records related to this Addendum and the Terms, and you will provide us with any assistance we may reasonably request in connection with such requests and audits, including providing any access, documents, materials, information, and data requested and making available your employees, contractors, agents, and representatives to answer our questions during any audit. Each Party will pay its own expenses related to such requests and audits.
Any notice to SuperBill under this Addendum may be provided by emailing SuperBill at email@example.com.
In addition to Provider’s indemnification obligations set forth in the Terms, Provider agrees to defend, indemnify, and hold harmless SuperBill and its subsidiaries and other affiliated companies, and its and their agents, licensors, managers, employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, settlements, penalties, fines, forfeitures, costs or debt, and expenses (including expert witness, accounting, and reasonable attorney’s fees) arising from: (i) Provider’s violation of any provision of this Addendum or the Terms or any applicable law, (ii) a Dispute or other claim arising out of or relating to the goods or services provided by Provider, including any claims for false advertising, unfair business practices, malpractice, product or service defects, and personal injury, death, and property damage; (iii) a Patient’s use of the Services, including chargebacks; (iv) fraudulent activity or unauthorized use of the Services, or chargebacks associated therewith; or (v) Provider’s gross negligence or willful misconduct. In addition to the rights and remedies SuperBill has under the Terms or this Addendum, SuperBill will also have all other rights and remedies provided under applicable law and equity, which rights and remedies will be cumulative.
The Parties to this Addendum are independent contractors, nothing in this Addendum shall be construed to create a joint venture, partnership, franchise, or agency relationship between the Parties, and neither Party has the authority, without the other Party’s written approval, to bind or commit the other Party in any capacity.
Except for each Party’s payment obligations, neither Party will be responsible for any failure or delay in performance due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of any nature beyond its reasonable control, including, without in any way limiting the generality of the foregoing, fire, terrorism, pandemic or epidemic, earthquake, storm, flood or other weather, unavailability of necessary utilities, telecommunications failures, or shortage of raw materials, strike, lockout, labor problems, unavailability of components, war, riot, acts of God, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Addendum or the Terms) or other event that is traditionally recognized by California courts as an event of force majeure.
Provider may not sell, assign, or transfer this Addendum or any rights or obligations under it without SuperBill’s advance written consent, and any sale, assignment, or transfer or attempt thereof without SuperBill’s prior written consent is and will be null and void. SuperBill may sell, assign, or transfer to any person, all or any portion of a Purchased Receivable, this Addendum or the Terms, or any of SuperBill’s rights or obligations under this Addendum or the Terms without prior notice to Provider. The provisions of this Addendum and the Terms will inure to the benefit of, and be binding upon, the Parties and their respective successors and permitted assigns.
This Addendum becomes effective on the Effective Date and remains in effect until terminated as provided below in Section 14(b) or as otherwise permitted by this Addendum.
(i) This Addendum will automatically terminate in the event that the Terms are terminated or are no longer in effect for any reason.
(ii) Provider may terminate this Addendum at any time upon 90 days’ prior written notice to SuperBill.
(iii) SuperBill may terminate this Addendum upon any of the following: (A) 30 days’ prior written notice to Provider; (B) immediately, if (1) Provider breaches the terms of this Addendum or the Terms, and fails to cure such breach within 15 days’ of obtaining knowledge of, or receipt of notice by SuperBill of, such breach; (2) Provider materially changes the nature of its business (3) Provider’s acts or omissions violate SuperBill’s policies, procedures, and guidelines or are unlawful; or (4) SuperBill’s performance of its obligations under this agreement are unlawful or termination is requested by a governmental body, insurer, or payment network. Additionally, SuperBill may suspend provision of the Services during any applicable cure period.
Upon termination of this Addendum: (i) Provider will cease using and remove all SuperBill’s Marks from its website, systems, and materials; (ii) SuperBill may disable Patient payments via SuperPay; (iii) SuperBill will no longer purchase Receivables from Provider; (iv) SuperBill may suspend or restrict the Services or take other action to prepare for cessation of the Services; (v) SuperBill may continue processing transactions that were authorized before the termination of this Addendum, and Provider will provide reasonable cooperation to facilitate such transactions; (vi) Provider will not receive a refund for any fees paid to SuperBill in connection with the Services unless otherwise agreed by both parties in writing; and (vii) SuperBill may, or may require Provider to, notify Patients that SuperPay is no longer available as a payment method.
Regardless of any termination or expiration of the subscription term of the Services or any termination of this Addendum, Provider will continue to be obligated to pay all amounts owing by it under, and to otherwise perform the terms of, this Addendum, and all of SuperBill’s rights will continue in full force and effect until all of Provider’s obligations are fully satisfied, including payment of Subscription Fees, Processing Fees, Discounts, and Repurchase Prices, which SuperBill will continue to impose until the date full payment is received. Sections 3(c), 3(e), 4(c) through 4(k), 6, 7, 10, 11, 13, 14(c), and 14(d) will survive any termination or expiration of the subscription term of the Services and any termination of this Addendum.
SuperBill may, at any time and subject to applicable law, change any term or add any new term in this Addendum, including any provisions regarding Discounts, fees, or other pricing provisions. When required by applicable law, SuperBill will deliver a notice of any change(s) or addition(s) to Provider. No change to any term or new term in this Addendum will affect any Provider obligation under this Addendum to pay, in full, all amounts owing by it under, or otherwise perform the terms of, this Addendum. To the extent permitted by applicable law, anu such changed term or new term will be effective immediately. Provider’s continued use of the Services will constitute acceptance of any amendment.