Terms and Conditions
The following General Terms and Conditions (the “General Terms and Conditions”) govern the relationship between the client (the “CLIENT”) and Medical Association Communications Ltd, dba Medical and Commercial Communications, a New Mexico corporation (the “ANSWERING SERVICE”). The Service Agreement and General Terms and Conditions are collectively referred to as the “Agreement.” Utilization of MACC’s services implies agreement with these terms and conditions.
NOW, THEREFORE, for good and valuable consideration, Client and Answering Service agree to the following:
- Terms of Payment.
- Fees and charges set forth in this Agreement are subject to change with thirty (30) days advance written notice.
- A minimum increase of 3% will be applied annually as an inflationary adjustment.
- Unless otherwise specified under this Agreement, payments of any fees and charges are due upon receipt of a statement. Client’s account becomes delinquent if full payment has not been received by the thirtieth (30th) day of billing cycle. Delinquent accounts will be subject to suspension or termination according to Section 2 below.
- Answering Service emails invoices on the first of each month; however, it is the responsibility of the Client to ensure that prompt payment is made.
- Any errors in billing must be reported in writing within (15) days of the billing date. The written notice shall set forth the reason(s) why the statement or part of the statement is not accurate. The failure of the Client to send a written notice of dispute within the time period set forth in this Section 1 shall be deemed a waiver by the Client of the right to dispute any portion of the statement. If the dispute relates to a portion of the statement, the Client shall make payment of the undisputed balance by the Due Date of the statement.
- All returned checks are subject to a $25 service charge. In addition, money order, cashier’s check, or a credit card payment must replace returned checks.
- The Answering Service has the right to terminate or suspend service without notice for any reasons which, in the sole opinion of the Answering Service, may be hindering overall services.
- Suspension or Termination of Services. If the Client’s account is delinquent, the Answering Service shall have the right, in its sole discretion, to suspend or terminate all TA Services, upon written notice to the Client at least twenty-four (24) hours prior to suspending or terminating the TA Services. Notwithstanding the foregoing, if such notice is given during a weekend or holiday period, TA Services will not be suspended or terminated until 5:00 p.m. local time at the location of the Client on the first business day after the notice was sent. Telephone Answering Services which are suspended or terminated for nonpayment shall be subject to a reconnection charge of $75 and an additional deposit of the month’s prior invoice amount. The Client shall be responsible for payment of all Telephone Answering Services up to the time of suspension or termination in addition to the Late Charge (as defined in Section 4 below). Suspension or termination of TA Services will not relieve Client of responsibility for all accrued charges.
- Late Charges. If Client fails to pay the entirety of a statement by the thirtieth (30th) day of the billing cycle, a late charge equal to the greater of (a) $25.00 or (b) 10% of the unpaid overdue balance will be immediately due and payable (the “Late Charge”). Additionally, Client shall be liable for all collection fees, including interest on all unpaid amounts at the lesser of eighteen percent (18%) per annum or the highest rate permitted by applicable law until such unpaid amount and interest is paid in full, plus attorneys’ fees and other costs incurred in the collection of monies due to the Answering Service.
- Term. Telephone Answering Services are offered on a month-to-month term. Clients are required to provide a 30-day written notice to terminate services.
- Illegal Use. The Client represents and warrants that the TA Services will not be used for any illegal purpose. If the Answering Service becomes aware that the TA Services are being used for any illegal purpose, the Answering Service shall have the right to suspend or terminate all TA Services IMMEDIATELY, without any prior written or oral notice to the Client. The Client shall be responsible for payment of all TA Services up to the time of suspension or termination and the Answering Service shall have the right to apply the deposit, if any, to any unpaid balances.
- Retention of Messages. Messages taken on the Client’s behalf are retained for a period of ninety (90) days past the message date after which they are destroyed. If client requires messages to be retained for a longer period due to pending legal issues, said messages will be retained for a charge of $50 per month.
- Direct Inward Dialing (DID) Numbers. Answering Service is sub-leasing one of their telephone numbers to the Client. This number is part of a Direct Inward Dialing (DID) block of numbers and is not available for connection to a telephone instrument. The Client understands that the ownership of this number is non-transferable and cannot be assumed by the Client under any circumstances.
- Audio Recording. All conversations and communications received and placed by the Answering Service on Answering Service telephone lines are recorded for quality assurance purposes. These recordings are maintained for ninety (90) days from the date of recording after which they are destroyed. If client requires audio recordings to be retained for a longer period due to pending legal issues, said audio recordings will be retained for a charge of $50 per month.
- HIPAA and HITECH Act Compliance. In providing the Services to the Client, the Answering Service agrees to comply with the standards and requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, including the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164 and the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”), as amended. The Answering Service further agrees to:
- Use appropriate safeguards to prevent the use or disclosure of protected health information (“PHI”) other than as provided for by this Agreement.
- Report to the Client any use or disclosure of PHI not provided for by this Agreement of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410.
- Ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the Answering Service agree to the same restrictions, conditions, and requirements that apply to the Answering Service with respect to such information.
- Make available PHI in accordance with 45 CFR 164.524.
- Confidentiality. The Answering Service shall treat all messages as confidential and shall not intentionally disclose any messages to any unauthorized person or organization. However, the Answering Service shall not be responsible for any inadvertent disclosure and shall have the right to disclose any messages, without prior notice to the Client of such requests, (a) upon order of any court or administrative agency, upon the request or demand of any regulatory agency or authority having jurisdiction over the Client, to the extent compelled by legal process or required under subpoena, interrogatories, or other discovery requests, (b) to cooperate with all law enforcement agencies or organizations, disclosing any information requested pursuant to the performance of their official duties, and (c) to Answering Service’s legal counsel who, in Answering Service’s reasonable judgment, need to know the content of the messages or related information.
- Limitation of Liability. THE ANSWERING SERVICE SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM ACTS, ERRORS, OR OMISSIONS BY ANSWERING SERVICE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, INCLUDING ANY FAILURE TO RECEIVE OR DELIVER MESSAGES, EXCEPT FOR CONDUCT WHICH IS ADJUDICATED TO BE GROSSLY NEGLIGENT OR INTENTIONAL. THE ANSWERING SERVICE’S ENTIRE LIABILITY TO THE CLIENT AS TO DAMAGES FOR, BASED UPON, OR IN CONNECTION WITH, EITHER DIRECTLY OR INDIRECTLY, TA SERVICES PROVIDED OR WHICH SHOULD HAVE BEEN PROVIDED BY THE ANSWERING SERVICE TO OR ON BEHALF OF THE CLIENT SHALL NOT EXCEED THE FEES AND COSTS PAYABLE BY THE CLIENT TO THE ANSWERING SERVICE FOR THE PAYMENT PERIOD IN WHICH THE CONDUCT GIVING RISE TO THE CLAIM TOOK PLACE. NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL THE ANSWERING SERVICE OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE CLIENT FOR (A) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS OR REVENUES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE PERFORMANCE, OR FAILURE TO PERFORM, ANY TA SERVICES; (B) ANY PUNITIVE, EXEMPLARY, OR MULTIPLIED DAMAGES; (C) ANY DAMAGES FOR, BASED UPON, OR ARISING OUT OF ANY NATURAL DISASTERS, WEATHER CONDITIONS, CIVIL DISTURBANCES, MATERIAL SHORTAGES, ELECTRONIC OR MECHANICAL FAILURES, OR PROBLEMS WITH OR THE INTERRUPTION OF TELEPHONE SERVICE. CLIENT UNDERSTANDS THAT THIS EXPRESS DISCLAIMER IS AN INTEGRAL PART OF THE CONTRACTUAL RELATIONSHIP WITH ANSWERING SERVICE.
- Indemnification. The Client agrees to defend, indemnify and hold the Answering Service and its directors, officers, employees and agents harmless against any and all liabilities, losses, damages, injuries, claims, suits, judgments, settlements, awards, costs, charges and expenses of whatever kind, including but not limited to the cost of enforcing any right to indemnification under this Agreement, attorneys’ fees, costs, charges and expenses incurred by the Answering Service relating to, arising from, or in connection with this Agreement, the performance or failure to perform any TA Services, which are not grossly negligent or intentional, under or pursuant to this Agreement.
- Ownership and Property Rights. All technologies, software, hardware, operating applications, procedures, scripts, telephone numbers, or other materials of any nature or type prepared, furnished, or utilized by the Answering Service, other than those items furnished by the Client to the Answering Service, shall be considered the sole and exclusive property of the Answering Service and shall be retained by the Answering Service upon the termination of this Agreement.
- Reports and Statistical Information. The Client may, from time to time, request the Answering Service to furnish reports or statistical information to the Client regarding aspects of the TA Services being performed. The cost to prepare and furnish such reports and statistical information is not included within the charges for the TA Services provided in this Agreement. Answering Service will advise the Client of the additional cost to be charged for the reports and statistical information and will obtain the consent of the Client before preparing and providing same to the Client. The Answering Service does not make any guarantees, warranties, or representations as to the accuracy of the reports and statistical information so provided.
- Independent Contractor. Nothing contained in this Agreement shall be construed or interpreted by the parties hereto, or by any third party, as creating a relationship of principal and agent, partnership, joint venture, or any other relationship between the Answering Service and the Client, other than that of independent contractors contracting for the provision and acceptance of services. Each party will be responsible for hiring, supervising, and compensating its own employees and for providing benefits to and withholding taxes for such employees.
- Notices. Unless otherwise stated, all notices, requests, consents, claims, demands, waivers, and other communications called for under this Agreement must be in writing and will be deemed to have been given:
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- when delivered by hand (with written confirmation of receipt);
- when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
- on the date sent by email (with confirmation of transmission) if sent during recipient’s normal business hours, and on the next business day if sent after the recipient’s normal business hours; or
- on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
Address: 123 Central Avenue NW
Albuquerque, New Mexico 87102Email: office@macmed.net Attention: President -
- Termination for Breach: The Company may terminate the agreement under the following circumstances:
- Immediately, if Client is using the Services for illegal purposes; (Section 5)
- Within 90 days from notice, if terminating for convenience; (Section 4 Service Agreement)
- Within 30 days from notice, if the Client breached other material terms of the agreement and fails to cure such breach within the 30-day period. (Section 17)
- Also, the Company may suspend or terminate TA Services if the Client fails to pay an invoice within 30 days.
- The Client may terminate the agreement under the following circumstances:
- Within 90 days from notice, if terminating for convenience; and (Section 4 Service Agreement)
- Within 90 days from notice, if terminating for convenience; and (Section 4 Service Agreement)
- Dispute Resolution. In the event of a dispute under this Agreement, the Parties shall follow the following process:The Parties, through executive officers with authority to resolve disputes, shall meet and seek to negotiate a resolution of the dispute within thirty (30) days of the giving of written notice of a dispute to the other Party.
- If executive officers are unable to resolve the dispute within thirty (30) days from the date of their initial meeting, they shall discontinue negotiations and submit the dispute to mediation, to be held with sixty (60) days of the conclusion of the thirty (30) day negotiation period. Such mediation shall be before an independent mediator chosen jointly by the parties. If the parties cannot come to agreement on the identity of the mediator, the selection shall be pursuant to the mediation rules of the Commercial Arbitration Rules of the American Arbitration Association.
- If mediation is unsuccessful in resolving the dispute, the Parties shall initiate binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, before an arbitrator in Bernalillo County, New Mexico. The arbitration shall commence not less than ten (10) nor more than thirty (30) days after the arbitrator has been designated. The arbitration shall be concluded as soon as reasonably possible, and the arbitrator shall make a written determination of the dispute within fifteen (15) days of the completion of the arbitration hearing. The prevailing Party in any such arbitration shall be awarded reasonable attorneys’ fees, expert and non-expert witness costs and expenses and other costs and expenses incurred in connection with such arbitration, unless the arbitrator, for good cause, determines otherwise. Costs and fees of the arbitrator shall be borne by the non-prevailing Party unless the arbitrator determines otherwise. The arbitrator’s adjudication shall be final and fully binding upon the Parties and enforceable in any court having jurisdiction.
- Governing Law. This Agreement shall be deemed to have been executed in the State of New Mexico and shall be interpreted, construed, and enforced in accordance with and governed by the internal laws of the State of New Mexico without regard to its conflict of law provisions.
- WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- Severability. No term or provision of this Agreement that is determined by a court of Competent Jurisdiction to be invalid or unenforceable shall affect the validity or enforceability of the remaining terms and provisions of this Agreement. Any term found to be invalid or unenforceable shall be deemed as severable from the remainder of this Agreement.
- No Waiver. Any Party’s failure to insist upon strict performance of any provision or obligation of this Agreement for any period is not a waiver of that party’s right to demand strict compliance in the future. An express or implied consent to or waiver of any breach or default in the performance of any obligations under this Agreement is not a consent to or waiver of any other breach or default in the performance of the same or of any other obligation.
- Binding Authority and Assignment. This Agreement is binding upon the Parties hereto and their respective successors and assigns. Client shall not assign its rights, duties, or obligations under this Agreement without the prior written consent of the Answering Service. Answering Services may assign this Agreement to any other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
- Counterparts. This Agreement may be signed in counterparts, by electronic signature, all of which when taken together will constitute a single instrument.
- Entire Agreement and Amendments. This Agreement represents the entire agreement of the parties with regard to the subject matter herein and supersedes all negotiations, oral promises, representations, prior discussions or preliminary agreements between the parties. No statements, warranties, or representations of any kind that are not contained in this Agreement shall in any way bind the parties. This Agreement can only be changed or modified by a writing signed by all the parties to this Agreement.