Last Updated 8/27/2024
These Nextech Third Party Terms and Conditions (“Third Party Terms”) set forth the terms and conditions applicable to certain third party functionality, software or data that may be offered with, or located within, the Nextech Software licensed to Customer (“Customer”) under the applicable Nextech Master Software License Agreement (“License Agreement”) relating to the Nextech Software. Terms not defined in these Third Party Terms shall have the meaning ascribed to such terms in the License Agreement.
1. CareCredit® patient financing: Nextech may offer Customer without charge, access to and use of the integration module containing CareCredit® patient financing (“Integration Module”). Customer acknowledges and agrees that the Integration Module and all intellectual property rights therein are the sole property of either Nextech or its third-party licensors. Nextech reserves all rights relating to the ownership and availability of the Integration Module, including, but not limited to, the right to discontinue or cease supporting the Integration Module or to charge Customer for its use of such module. The Integration Module is provided on an “as is”, “where is” basis without warranty of any kind whatsoever.
2. CPT Codes licensed by the American Medical Association (“AMA”):
(i) The Nextech Software incorporates “Editorial Content” published by the AMA from the print publication Current Procedural Terminology, Fourth Edition and the ASCII or EBCDIC data file of Current Procedural Terminology published by AMA in the English language as used in the United States (collectively, “CPT Editorial Content”), a coding work of nomenclature and codes for reporting of healthcare services. Such CPT Editorial Content is provided under a nontransferable, nonexclusive license, for the sole purpose of internal use by the Customer. The Customer may not publish, distribute via the Internet or other public computer based information system, create derivative works (including translating), transfer, sell, lease, license or otherwise make available to any unauthorized party the CPT Editorial Content, or a copy or portion of the CPT Editorial Content. The provision of updated CPT Editorial Content in the Nextech Software is dependent on a continuing contractual relationship between Nextech and the AMA. The Customer shall ensure that anyone with authorized access to the Nextech Software complies with the provisions of the Licensed Agreement and these Third Party Terms regarding the CPT Editorial Content.
(ii) A “User” of the CPT Editorial Content is any person who: (1) accesses, uses, or manipulates the CPT Editorial Content contained in the Nextech Software, (2) accesses, uses, or manipulates the Nextech Software to produce or enable an output (data, reports, or the like) that could not have been created without the CPT Editorial Content embedded in the Nextech Software even though the CPT Editorial Content may not be visible or directly accessible, or (3) makes use of an output of the Nextech Software that relies on or could not have been created without the CPT Editorial Content embedded in the Nextech Software even though the CPT Editorial Content may not be visible or directly accessible. Customer agrees to accurately count Users as defined above for the CPT Editorial Content as it is contained in the Nextech Software, and Nextech and Customer shall count Users in accordance with license agreement between Nextech and the AMA. Customer shall report to Nextech the accurately counted number of Users of CPT Editorial Content as contained in the Nextech Software (in order that Nextech may accurately report and pay royalties to the AMA).
(iii) The CPT Editorial Content is copyrighted by the AMA and CPT is a registered trademark of the AMA. The U.S. Government has the following rights: U.S. Government Rights: This product includes CPT which is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. The AMA does not agree to license CPT to the Federal Government based on the license in FAR 52.227-14 (Data Rights - General) and DFARS 252.227-7015 (Technical Data - Commercial Items) or any other license provision. The AMA reserves all rights to approve any license with any Federal agency.
(iv) Notwithstanding any provisions in the License Agreement to the contrary, Customer may make a reasonable number of copies of the CPT Editorial Content solely for non-productive purposes, including but not limited to back up, archival, disaster recovery, training, development, or quality assurance purposes. All notices of proprietary rights, including trademark and copyright notices, must appear on all permitted back up or archival copies made by the Customer.
(v) Notwithstanding any provisions in the License Agreement to the contrary, the CPT Editorial Content as contained in the Nextech Software is provided “as is” without any liability to the AMA, including without limitation, any liability for consequential or special damages, or lost profits for sequence, accuracy, or completeness of data, or that it will meet the Customer's requirements. The AMA's sole responsibility is to make available to Nextech replacement copies of the CPT Editorial Content if the data is not intact. The AMA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in CPT Editorial Content.
(vi) Notwithstanding any provisions in the License Agreement to the contrary, the license to the CPT Editorial Content may terminate in the event of default by the Customer, subject to the ability to cure as set forth in the License Agreement.
(vii) In the event a provision of the License Agreement is determined to violate any law or is unenforceable, the remainder of the License Agreement will remain in full force and effect.
(viii) Notwithstanding any provisions in the License Agreement to the contrary, the AMA is a third-party beneficiary of the License Agreement solely with regards to the license for the CPT Editorial content.
(ix) Customer hereby grants Nextech permission to provide the AMA with the name of Customer’s practice.
3. CMS 1997 Documentation Guidelines for Evaluation and Management Service: In the event Customer purchases Nextech’s Practice EMR (the “Billing Module”) and uses the Practice E&M Coding features and algorithms incorporated therein (the “Coding Functionality”) to assist in Customer’s calculation of office visit service codes for billing purposes, “Software” shall automatically be deemed to include the Billing Module and such module shall be licensed to Customer subject to the terms and conditions of the License Agreement and the following additional terms and conditions, which the Customer hereby acknowledges it understands and accepts:
(i) The Coding Functionality is based on the Centers for Medicare & Medicaid Services (“CMS”) 1997 Documentation Guidelines for Evaluation and Management Service. As the underlying algorithms can be extremely complex given the number of visit types, exam types, and coding levels, the Coding Functionality provides the Customer with full access to determine how the algorithms function. https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNEdWebGuide/Downloads/97Docguidelines.pdf
(ii) Nothing in the Nextech Software, the Billing Module or the Coding Functionality is to be construed as medical advice, and the Customer and its Authorized Users shall review the CMS 1997 Documentation Guidelines for Evaluation and Management Service, the underlying algorithms, and any checklists provided as part of Nextech Software, the Billing Module or the Coding Functionality together with the procedure specific content provided in the Nextech Software database before using the Billing Module or the Coding Functionality for medical billing.
(iii) Every clinician permitted by the Customer to use the Billing Module or the Coding Functionality should have a thorough understanding of the applicable documentation guidelines. The Coding Functionality is solely a reference tool; it does not teach clinicians to code correctly. At all times during the term of the License Agreement, Customer will be responsible for training its personnel on all Laws and guidelines issued by Governmental Authorities that affect medical billing and will be responsible for conducting periodic coding audits to ensure Customer’s regulatory compliance with those Laws and guidelines.
(iv) The Customer is fully responsible for all billing codes associated with the patient encounter and the electronic medical record. Nextech hereby disclaims all responsibility and liability for the diagnosis codes, service codes, E&M checklists, auditing, or algorithms chosen by the Customer, or any non-compliance with any Law or guideline issued by a Governmental Authority applicable thereto.
(v) The Customer further understands that the Customer may not display the name, trademark, logo or other identifying mark of Nextech on any output to any patient of the Customer.
4. NexForms and State Mandated Informed Consent: In the event the Customer purchases Nextech’s comprehensive set of content-specific forms, letters and patient education documents (which includes informed consent documents from the American Society of Plastic Surgeons (ASPS) Patient Consultation Resource Book) (“NexForms), such forms shall be provided to Customer subject to the terms and conditions of the License Agreement and the following additional terms and conditions:
(i) Customer understands and acknowledges that that nothing in the Nextech Software, NexForms, or in any of the documents, document templates or procedure specific content provided in the Nextech Software database which is merged with any of the document templates, does not constitute and shall not to be construed as medical and/or legal advice. Customer shall review such documents, document templates or procedure specific content provided in the Nextech Software, NexForms and the Nextech Software database, using Customer's professional and medical judgment, and with competent legal counsel where appropriate, before using such documents, forms and content with its patients. The suitability of such forms for use with Customer’s patients shall be determined solely by Customer.
(ii) Customer understands it may not display the name, trademark, logo or other identifying mark of Nextech on any output to any patient of the Customer.
(iii) Customer understands and acknowledges that certain Governmental Authorities have issued laws, rules or regulations that specifically require informed consent and set forth specific procedures for obtaining medical informed consent from a patient. Customer agrees that at all times during the term of the License Agreement, Customer will be in compliance with such requirements.
(iv) Prior to using any of the informed consent documents contained in NexForms, Customer shall, with the Customer's specialized professional judgment and after consultation with competent legal counsel, review applicable state Law and shall be responsible for the modification the applicable informed consent document contained in the NexForms to ensure compliance with applicable state Law.
(v) The Customer understands that for each ASPS Informed Consent Form, the following copyright and Customer information paragraph applies: ©2005 American Society of Plastic Surgeons. Purchasers of the Patient Consultation Resource Book are given a limited license to modify documents contained herein and reproduce the modified version for use in the Customer’s own practice only. All other rights are reserved by American Society of Plastic Surgeons®. Customers may not sell or allow any other party to use any version of the Patient Consultation Resource Book, any of the documents contained herein or any modified version of such documents.
5. Intellichart e-Fax Service: In the event that Customer purchases the Intellichart e-Fax Service through Nextech, the Intellichart e-Fax Service shall be provided to Customer subject to the terms and conditions of the License Agreement and the following additional terms and conditions:
(i) Nextech will provide the Outbound Fax Services and the Inbound Fax Services (each defined below and collectively the “Services”) in accordance with the terms and conditions and at the rates set forth below.
(ii) The Outbound Fax Service is defined as an individual fax message sent to Nextech by the Customer for delivery to a specified fax number on the public switched telephone network (PSTN). Nextech supports the delivery of received documents to Customer as well as the submission of documents for delivery through a web service allowing connections through https (SSL) and through regular e-mail and encrypted e-mail (Transport Layer Security).
(iii) The Inbound Fax Service is defined as where Nextech receives a G3 fax and delivers said fax to one or more internet e-mail addresses specified by the Customer, or alternatively by using web services or FTP/FTPS (File Transfer Protocol). Nextech will deliver faxes in either TIFF or PDF format as requested by Customer using SMTP or encrypted SMTP (Transport Layer Security) to the e-mail address(s) associated with a specific inbound number. This collection of services and fax service features is commonly referred to as the product name, “Fax Online”.
(iv) Nextech will bill Customer for Services at the rates set forth below based on usage by Customer. Records of all Services invoiced to Customer will be retained by Nextech and will be available to Customer upon Customer’s request for a period of 60 days after such Services occurred. Rates do not include any sales taxes, duties, levies, or similar assessments imposed by any governmental authority and any such liabilities resulting from the provision of Services to Customer hereunder shall be added to Customer’s invoice and shown separately. There is no minimum monthly usage requirement for the Services. Nextech may select a “Credit Limit” for the usage of the Services which would be a total dollar amount that Customer may accrue prior to payment for Services.
(v) The liability of Nextech, if any, for damages resulting from or arising in connection with mistakes, omissions, interruptions, delays, errors, or other defects (collectively, “Impairments”) occurring during the course of furnishing Service or arising out of any failure to furnish Service, shall be limited to a credit of the Nextech charges for the Services subject to the Impairments during the time period that such impairments occurred but such credits will be disallowed if the Impairment is not reported to Nextech within 24 hours of its occurrence or if such damage is, in whole or in part or directly or indirectly, caused by or contributed to, the acts or omissions of Customer, its agents, representatives, contractors, subcontractors, licensees, invitees, or customers, or the facilities of any such entity. For the purposes of this paragraph, Impairment begins when Customer reports the Impairment to Nextech and ends when the Impairment is corrected.
(vi) Number Ownership. The Direct Inward Dial “DID” numbers and the toll free numbers assigned to Customer for the use of Services are the property of Nextech and are granted to the Customer for their exclusive use during the term of this Agreement. Upon termination of this Agreement, ownership of these numbers as well as any numbers ported to Nextech from Customer for use of Services will be transferred to Customer upon request.
(vii) Outbound Fax Service Pricing:
a. Nextech does not charge for the 1st $35 in Monthly Fees for Outbound Fax Service which includes up to 500 Outbound Fax pages (calculated using continental USA outbound rates).
b. Additional charges for Outbound Faxes exceeding 500 pages ($35) per month will be billed at:
- Per page cost for continental USA outbound fax: $0.07
- Per page cost for Hawaii, Alaska and Canada outbound fax: $0.10
- International rates available on request
c. Note: Above rates are based on standard fax transmission time of one minute or less per page. Overtime charges apply for pages where transmission time exceeds one minute. Rates are subject to change annually.
6. DrFirst EPCS: (A.) If Customer uses DrFirst Services for Electronic Prescriptions for Controlled Substances (“EPCS”), Customer hereby agrees to the following:
(i) Prescribing Providers. Each EPCS account shall be assigned to a specific provider (the “Prescribing Provider”). Each Prescribing Provider must properly register through the EPCS application and the DrFirst website. As part of the two-factor authentication setup requirement for the EPCS feature, each Prescribing Provider will be provided with a complimentary Identity- Proof Hard Token (“IDP Hard Token”) and confirmation letter. In the event the IDP Hard Token is lost, damaged or becomes inoperable thereafter, Customer shall pay Nextech the then-current fee for each additional IDP Hard Token and confirmation letter, as applicable. Prescribing Provider secures and elects to use an Identity-Proof Soft Token (“IDP Soft Token”), provided by a third-party, (e.g. Symantec mobile application, etc.), the IDP Soft Token must be downloaded/stored on a separate device from the computer or device on which the Prescribing Provider gains access to the EPCS feature and transmits prescriptions. (The IDP Hard Token and IDP Soft Token are sometimes referred to generally as an “IDP Token”). Each message that is transmitted to DrFirst must originate from a Prescribing Provider who is, is employed by, or is subject to the direction and control of, a licensed, registered and authorized healthcare provider. Customer shall ensure that no Prescribing Provider is influenced, or will influence others, to write a prescription for a certain medication or to send a prescription to a certain pharmacy (provided that information related to formulary and benefit plan design and information from payers or other reputable sources providing clinical information shall be exempt from this prohibition, so long as the Prescribing Provider can still access all pharmaceuticals and the Prescribing Provider or any patient is not prohibited from selecting any pharmacy).
(ii) Customer Responsibilities. Customer understands and agrees and, shall ensure that each Prescribing Provider understands and agrees: (a) to retain sole possession of the IDP Hard Token, and not to share the login passphrase with any other person; (b) that it shall not allow any other person to use an IDP Token or enter the login passphrase in order to sign controlled substance prescriptions; (c) that failure to secure the IDP Token, login passphrase, or any biometric information may provide a basis for revocation or suspension of the EPCS account; (d) if using a hard or software token or mobile device application to generate a one-time-password for the two-factor authentication process, the hard or software token or mobile device application shall be separate from the device that I use to issue any electronic prescription for a controlled substance; (d) to notify Nextech within one business day of discovery if (i) Customer or a Prescribing Provider is contacted by a pharmacy because one or more controlled substance prescriptions are displaying the incorrect United States Drug Enforcement Administration (the “DEA”) number, (ii) if Customer or a Prescribing Provider discover that one or more controlled substance prescriptions issued using a Prescribing Provider DEA number were not consistent with the prescriptions actually signed, or were not signed at all, or (iii) if a Prescribing Provider’s IDP Token has been lost, stolen, or the authentication protocol has been compromised in any way; (e) that Prescribing Provider is responsible for any controlled substance prescriptions written using its two-factor authentication credential; (f) that Prescribing Providers have the same responsibilities when issuing electronic prescriptions for controlled substances as when issuing paper or oral prescriptions; (g) to prescribe controlled substances only for legitimate medical purposes; (h) to review security logs on a daily basis for any security incidents; (i) to comply with applicable law, including the requirement to obtain all necessary third party approvals, certifications, or other evidence of compliance with the relevant provisions of DEA Regulations, as necessary for their use of the EPCS; and (j) to report to the DEA any security incident and provide Nextech with a copy of such report. Customer agrees to keep all security incident reports on file for a period of two years from the date of occurrence. Further, Customer hereby represents and warrants that Customer is not currently under formal investigation, indictment, or prosecution and has not been convicted, disciplined, or sanctioned within the preceding five years by any governmental entity or self-regulation program for violation of any applicable laws under or related to health care, drugs, or criminal acts. “DEA Regulations” mean the DEA’s Electronic Prescription of Controlled Substances Final Rule, as codified in 21 CFR Parts 1300, 1304, 1306, and 1311. pharmacy).
(iii) Customer Acknowledgments. Customer and each Prescribing Provider hereby agrees and acknowledges that (a) any pharmacy, pharmacy benefit manager, payor or other source of data may elect not to receive prescriptions from Customer or from the Prescribing Provider; (b) the prescription benefit and medication history obtained from DrFirst may not be accurate or complete, and (c) DrFirst, Nextech, the pharmacy, pharmacy benefit manager, payor, or other data sources provide no representations or warranties with respect to the accuracy or completeness of the prescription benefit or medication history information obtained using the DrFirst Services.
(iv) Customer Indemnifications. Customer shall and shall ensure that each Prescribing Provider (on their own behalf and on behalf of any applicable patients) shall release and hold harmless DrFirst, Nextech, and any other person or entity providing prescription benefit or medication history information from any liability, cause of action or claim related to the completeness or lack thereof, of the information. Further, Customer shall indemnify, hold harmless, and defend DrFirst, Nextech, the National Association of Boards of Pharmacy, APPRISS and each of their respective officers, directors, employees, members, contractor’s and affiliates from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any third party claim in which any above-named party is named as a result of any access or use of the DrFirst Services or application by Customer or any Prescribing Provider.
(B.) Prescription Drug Monitoring Program (“PDMP”): If Customer and/or its Prescribing Providers access any prescription history information maintained by and accessed through the PDMP (the “PDMP Data”) through the EPCS application, the following additional requirements shall apply:
(i) Customer and each Prescribing Provider will provide DrFirst proof of its state-issues authorization to access PDMP Data (if such authorization is required by applicable law);
(ii) Neither Customer nor any Prescribing Provider shall sublicense, transfer, sell, disclose, export, or otherwise provide access to or use of the PDMP Data to any third party; and,
(iii) Customer and each Prescribing Provider:
a. Represents and warrants that it is not currently under formal investigation, indictment, or prosecution and has not been convicted, disciplined, or sanctioned within the preceding five years by any governmental entity or self-regulation program for violation of any government laws or regulations under or related to health care, drugs, or criminal acts, and
b. Agrees to indemnify, hold harmless, and defend DrFirst, Nextech, the National Association of Boards of Pharmacy, APPRISS and each of their respective officers, directors, employees, members, contractor’s and affiliates from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any third party claim in which any above-named party is named as a result of Customer’s or any Prescribing Provider’s access or use of the PDMP Data.
(iv.) Customer and each Prescribing Provider, further understand and agree that:
a. It shall only access or use the PDMP Data in accordance with applicable state and federal laws and regulations;
b. it will not engage in unlawful, objectionable, or malicious conduct or activities in accessing PDMP Data, including but not limited to, the transmission or distribution of viruses, computer worms, trojan horses, malicious code, denial of service attacks, unsolicited commercial e-mail, the unauthorized entry to any other machine accessible via the PDMP application, the unauthorized submission or transmission of data or material protected by a proprietary right of a third party, or the submission of otherwise objectionable information, material, or communications; and,
c. it will not decompile, disassemble, deconstruct, or reverse-engineer any PDMP Data.
(C.) Flowdown Obligation. Customer shall cause its Prescribing Providers to comply with the responsibilities and obligations of Prescribing Providers hereunder.
