These Terms and Conditions ("Terms") establish the legal agreement between Om Medical LLC ("Om Medical"), a Delaware corporation, and you, the customer ("Customer"). These Terms govern the provision of services ("Services") by Om Medical and your use of those Services.
Specific details regarding the Services—such as pricing, usage limits, and other conditions—will be outlined in separate statements of work, purchase orders, or similar documents agreed upon by both parties (each an "SOW"). Each SOW is subject to these Terms, and in the event of any inconsistency, the terms of the SOW will take precedence. This Agreement becomes effective on the date the Customer signs the initial SOW ("Effective Date").
The Customer wishes to use Om Medical's artificial intelligence-based medical scribe software ("Software") to assist their healthcare employees or contractors ("Providers") in recording, storing, transmitting, and delivering transcripts. Providers will use the Software to record interactions with patients ("Recordings").
Both parties agree to the following terms:
Om Medical will deliver the following services to the Customer ("Services"):
Under the terms of this Agreement, Om Medical grants the Customer licenses to use the Software as detailed in the SOW ("Licenses"). The Customer and their Providers may use the Software solely for the purposes specified in this Agreement. The Customer must not allow any unauthorized third parties to use the Software without prior written consent from Om Medical. Om Medical agrees to comply with the terms of the Business Associate Agreement ("BAA"), attached as Exhibit A, in relation to the Customer's use of the Software. Om Medical will make commercially reasonable efforts to provide the Software to the Customer.
Unless otherwise specified in an SOW, the Customer is responsible for supplying any necessary mobile devices, audio recording equipment, or other hardware required to use the Software ("Hardware"). If the SOW indicates that Om Medical will provide Hardware, such Hardware is furnished solely for the Customer's use in connection with the Services. The Customer's use of any Hardware provided by Om Medical is subject to the terms of this Agreement.
Om Medical will offer reasonable IT support via phone or email during standard business hours to assist the Customer.
Om Medical reserves the right to update or modify the Software periodically, including making enhancements, bug fixes, or other changes to improve functionality. Such changes will not remove or materially interfere with the core features of the Software.
Each SOW will specify the term applicable to that SOW. This Agreement begins on the Effective Date and continues until all SOWs executed under it are completed ("Term"). If additional SOWs are executed after the Term expires, this Agreement will automatically renew for the duration of those subsequent SOWs. If no additional SOWs are executed, the Agreement will automatically renew as outlined in the original SOW.
The Customer may terminate this Agreement by providing written notice to Om Medical before the end of the current Term, as specified in the SOW. Termination will take effect at the end of the Initial Term or the current Term if renewed, unless otherwise stated in the SOW.
Either party may terminate this Agreement if the other party materially breaches any provision and fails to remedy the breach within thirty (30) days after receiving written notice specifying the breach. If the breach is not curable, the non-breaching party may terminate the Agreement immediately.
If the Customer becomes insolvent, files for bankruptcy, makes an assignment for the benefit of creditors, or undergoes any similar proceeding, Om Medical may terminate this Agreement immediately upon written notice.
Upon termination ("Termination Date"), the Customer must cease all use of the Services and certify in writing that the Software has been removed from their systems. All outstanding Fees owed prior to the Termination Date become immediately due and payable.
Any provisions of this Agreement that by their nature should survive termination, including but not limited to Sections 2.3, 2.4, and Sections 4 through 9, will remain in effect after termination.
If the Software does not support the Customer's EHR system, Om Medical will provide dedicated staff to develop an EHR integration. The Customer may incur an "EHR Integration Fee" at the hourly rate specified in the SOW. Total integration costs may vary based on complexity and are non-refundable unless otherwise agreed upon in writing.
The Customer agrees to pay the monthly fees ("Monthly Fees") outlined in the SOW. If the Customer's usage exceeds the number of Licenses specified, Monthly Fees may be adjusted accordingly. Monthly Fees are non-refundable unless otherwise agreed in writing.
For any additional services provided beyond those specified ("Additional Services"), the Customer may be charged additional fees ("Additional Fees"), as detailed in the SOW. Additional Fees are non-refundable unless otherwise agreed in writing.
Any Fees not paid by the due date may accrue interest at the lesser of one percent (1%) per month or the maximum rate allowed by law. The Customer is responsible for any costs associated with collecting overdue amounts, including reasonable attorneys' fees.
Fees will be charged to the payment method designated by the Customer at the time of signing up for the Services. The Customer authorizes Om Medical to automatically charge the Fees as they become due and must ensure that payment information is accurate and up-to-date. The Customer acknowledges that Om Medical uses third-party payment processors and agrees to comply with their terms and conditions.
All Fees are exclusive of taxes and other governmental charges. The Customer is responsible for paying any applicable taxes, fees, duties, or charges imposed by governmental authorities unless a valid exemption certificate is provided.
Om Medical retains all rights, title, and interest in the Software, including any improvements, enhancements, or modifications. This includes all related intellectual property rights. Under this Agreement, Om Medical grants the Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Software during the Term, solely for the purposes specified.
Any feedback, suggestions, or ideas provided by the Customer or its personnel regarding the Services ("Feedback") become the property of Om Medical. The Customer grants Om Medical a perpetual, royalty-free license to use such Feedback for any business purposes without compensation.
Unless otherwise agreed in writing, Om Medical may use the Customer's name and logo in marketing materials and on its website to identify the Customer as a client.
The Customer agrees not to:
The Customer represents and warrants that it will use the Services and Software in compliance with this Agreement and any provided instructions. Om Medical reserves the right to monitor usage and may prohibit any use that violates this Agreement.
The Customer will:
The Customer is responsible for obtaining and maintaining all equipment and services necessary to access and use the Services ("Customer Equipment"). This includes hardware, software, networking, and internet access. The Customer must maintain the security of all equipment, accounts, and data.
The Customer must ensure that its use of the Software and Services complies with all applicable laws and regulations, including HIPAA and other data privacy laws. The Customer represents that it has obtained all necessary consents and authorizations required by law before disclosing any Protected Health Information to Om Medical.
Om Medical may suspend or revoke the Customer's access to the Services if it determines that:
Om Medical will make reasonable efforts to provide prior notice of any suspension or revocation but is not liable for any damages resulting from such actions.
"Confidential Information" refers to any non-public, proprietary information disclosed by one party ("Disclosing Party") to the other ("Receiving Party"), including but not limited to business strategies, financial data, trade secrets, technologies, and client information.
Confidential Information does not include information that:
The Receiving Party agrees to:
Upon written request or termination of this Agreement, the Receiving Party must promptly return or destroy all Confidential Information of the Disclosing Party and certify such action in writing, unless retention is required by law.
THE SERVICES AND SOFTWARE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. OM MEDICAL DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY OF DATA. OM MEDICAL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
The Customer agrees to indemnify and hold harmless Om Medical and its affiliates, officers, directors, employees, agents, and representatives from any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OM MEDICAL'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM.
Each party represents that it has the legal authority to enter into this Agreement and that doing so does not violate any other agreements.
This Agreement is governed by the laws of the State of Delaware, excluding its conflict of law principles. Both parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Dover, Delaware.
The Customer may not assign or transfer any rights or obligations under this Agreement without prior written consent from Om Medical. Om Medical may assign this Agreement in connection with a merger, acquisition, or sale of assets.
This Agreement, including any Exhibits and SOWs, constitutes the entire understanding between the parties and supersedes all prior agreements or communications.
Failure to enforce any provision of this Agreement shall not constitute a waiver of that provision or any other provision.
Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, such as natural disasters, war, terrorism, governmental actions, or labor disputes.
The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship.
If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
All notices required under this Agreement must be in writing and delivered via email or other agreed-upon methods. Notices are deemed delivered within twenty-four (24) hours of being sent.
This Agreement may be executed in multiple counterparts, each of which is considered an original, and all of which together constitute one agreement.
Section headings are for reference purposes only and do not affect the interpretation of this Agreement.