Terms Of Service
The following terms constitute a legal agreement (the “Agreement”) between you, on behalf of yourself as a sole proprietor or on behalf of a business entity (“you”, or “your” and Gentem Health, Inc., its subsidiaries, affiliates, agents and assigns (“Gentem”, “we”, “us”, or “our”) that sets forth the terms and conditions for your use of the products and services offered, operated or made available by Gentem (collectively, the “Services”) through websites or mobile applications owned and operated by Gentem (collectively, the “Site”). The Services are being provided to you expressly subject to this Agreement. By accessing and/or using the Services on behalf of yourself or the entity that you represent, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Gentem, and this Agreement governs your use of the Services.
Among other Services, Gentem offers a medical factoring Service (the “Medical Factoring Service”). The Medical Factoring Service allows a medical professional (each, a “Provider”), at its option, to sell Gentem the right to payment owed to Provider by an insurance company (each an “Insurer”) arising out of the medical goods and/or services the Provider has provided to its patients and any other related rights.
1. ACCEPTANCE OF AGREEMENT; GENERAL REPRESENTATIONS AND WARRANTIES
Please carefully review this Agreement before using the Services. If you do not agree to these terms, you may not access or use the Services.
By accessing and/or using the Services on behalf of yourself or the Provider that you represent, you represent and warrant that:
- Provider agrees to be bound by this Agreement;
- Provider has not previously been suspended or removed from using any Service; and
- Provider has full power and authority to enter into the Agreement and in doing so will not violate any other agreement to which Provider is a party.
If Provider is a legal entity, it further represents and warrants that:
- Provider is duly organized, validly existing, and in good standing under the applicable laws of the jurisdiction of its organization; and
- Provider is solvent.
You may not access or use the Services or accept this Agreement if (1) you are not a legal resident of the United States, 2) you are not of legal age to form a binding contract with Gentem, or 3) you are prohibited by law from using the Services
2. MODIFICATION OF THIS AGREEMENT
Gentem reserves the right to amend this Agreement at any time and will notify you of any such changes by posting the revised Agreement on the Site. You should check this Agreement on the Site periodically for changes. All changes shall be effective upon posting. We will date the Agreement with the last day of revision. Your continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes. Gentem may terminate, suspend, change, or restrict access to all or any part of the Services without notice or liability.
3. GENTEM ACCOUNT
To access Gentem’s Services, you must create an account with Gentem (a “Gentem Account”). This process will include creation of that a login ID and password for your Gentem Account. When you sign up for our Services, you agree to provide accurate, current and complete information—such as your name, Provider’s name, mailing address, telephone number, and email address –as may be prompted by any registration forms available through the Services or otherwise requested by Gentem (such information, “Account Information”). You further represent that you are a legal owner of, and that you are authorized to provide us with, all Account Information and other information necessary to facilitate your use of the Services.
In order to use certain Services, Gentem may be required to verify your identity or the identity of the Provider you represent. You authorize us to make any inquiries we consider necessary to validate your identity or the identity of the Provider you represent. If you do not respond to such inquiries or we cannot verify your identity or the identity of the Provider you represent, we can refuse to allow you to use the Services.Should any of your Account Information change, you agree that you will update this information as soon as possible. To update your Account Information, login to your Gentem Account and update your Account Information accordingly.
4. THIRD PARTY PRODUCT PROVIDERS
To use the Services, you may direct Gentem to retrieve your account transaction history, balance information and/or other information maintained by third-parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). Gentem works with one or more third-party service providers, to access this Third-Party Account Information. By using the Services, you authorize Gentem to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping your passwords and usernames for this Third-Party Account Information secure, and for keeping those passwords and usernames up to date in your Gentem Account. Gentem does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Gentem is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites.
5. MEDICAL FACTORING SERVICE
5.1 Sale of Future Receivables
Through the Services, Provider may, in accordance with this Agreement, offer to sell, assign, and transfer to Gentem as absolute owner the Provider’s future accounts, contract rights and other obligations arising from or relating to the payment of monies from an Insurer to a Provider associated with a claim (the “Future Receivables” defined as all payments made by cash, check, electronic transfer or other form of monetary payment from Insurer to Provider in the ordinary course of Provider’s business for goods or services provided by Provider to patients covered by an Insurer-sponsored insurance plan. Provider, as a seller, and Gentem, as a buyer, intend that each purchase and sale of Future Receivables under the Agreement is and shall be a true sale of such Future Receivables for all purposes and not a loan arrangement. Each such sale shall be, subject to the terms of the Agreement, absolute and irrevocable, providing Gentem with the full risks and benefits of ownership of such Future Receivables (such that the amounts payable under such Future Receivables would not be property of Provider’s estate in the event of Provider bankruptcy). Provider, as a seller, and Gentem, as a buyer, agree to treat each transfer of Future Receivables for all purposes as a sale on all relevant books, records, financial statements and other applicable documents.
1.1 Inquiries Related to Medical Factoring Service Eligibility
Provider authorizes Gentem, its agents and representatives and any third party engaged by Gentem, to (i) investigate any references given or any other statements or data obtained from or about Provider for the purpose of this Agreement, and (ii) obtain a credit report or other consumer report about you, including a personal consumer report, at any time now or for so long as Provider continues to have any obligation to deliver Future Receivables to Gentem as a consequence of this Agreement or for Gentem’s ability to determine Provider’s eligibility to enter into any future agreement with Gentem.
1.2 Purchases of Future Receivables
Provider is not obligated to offer any specific Future Receivable to Gentem for purchase.
Gentem may purchase from Provider such Eligible Future Receivable as Gentem determines. Nothing in this Agreement shall be construed to obligate Gentem to purchase any Future Receivables from Provider.
1.3 Right to Future Receivables
Gentem may use the Services or other means to provide notice and instructions to Insurers regarding the proper remittance location for Future Receivables purchased by Gentem from Provider. Once Gentem purchases a Future Receivable, Provider acknowledges and agrees that Gentem’s rights to amounts due under such Future Receivable include without limitation the full right and power (a) to notify the Insurer that the amounts due or to become due upon said Future Receivable have been assigned to Gentem, (b) to contact the Insurer to verify the amounts owing upon and the validity of said Future Receivable, and (c) to collect, compromise, sue for, assign, or to enforce collection of said Future Receivable in any manner, in the name of Gentem, or in the name of any assignee of Gentem, without limitation.
With respect to each Future Receivable, Provider agrees to provide such documentation supporting and evidencing the Future Receivable as Gentem shall from time to time request.
1.4 Purchase Price
Gentem shall purchase a Future Receivable from Provider at a discount communicated by Gentem to Provider at the time of purchase (the “Purchase Price”). For current and applicable pricing, please refer to www.gentem.com/pricing. A portion of the Purchase Price will be paid to Provider at the time of purchase and the remainder of the Purchase Price will be retained by Gentem following the receipt of the Face Amount from the Insurer. In the event that an Insurer pays less than the Face Amount (the “Paid Amount”) for a Future Receivable, Gentem reserves the right to collect the difference between the Face Amount and the Paid Amount from the Provider’s next sale of a Future Receivable to Gentem.
1.5 Designated Bank Account
To use the Medical Factoring Service, Provider must provide bank account information to Gentem (each, bank account, a “Designated Bank Account”). Provider hereby authorizes Gentem to initiate debit entries to Provider’s Designated Bank Account and to intercept payments on the Future Receivable purchased by Gentem made by the Insurer to collect payment for any amounts due from Provider arising under the Agreement and this Agreement and as adjustments to any ACH electronic credits made in error to the bank account or resulting from fraud.
Provider understands that it is responsible for ensuring that the Face Amount to be debited by Gentem remains in the Designated Bank Account and will be held responsible for any fees incurred by Gentem resulting from a rejected ACH attempt or an Event of Default (as defined herein). Gentem is not responsible for any overdrafts or rejected transactions that may result from Gentem ACH debiting the specified amounts under the terms of this Agreement.
The parties agree to be bound by the terms of the NACHA Operating Rules with respect to all electronic fund transfers made via ACH transaction.
Provider must promptly notify Gentem of any changes to its Designated Bank Account information. If Gentem incurs any costs, expenses or fines as a result of Provider’s failure to provide accurate information about its Designated Bank Account, its failure to promptly notify Gentem of any changes to its Designated Bank Account information, its failure to take corrective actions as reasonable requested by Gentem or its failure to notify its bank of the ACH authorization which results in rejected transactions, Provider will reimburse and indemnify Gentem for these costs, expenses or fines. In addition, Gentem reserves the right to suspend or terminate Provider’s access to any Services pending resolution of any issues with Provider’s ACH authorization or Designated Bank Account.
1.6 Credit Risk; Repurchase of Accounts; Set Off
Gentem will assume the Credit Risk on each Future Receivable purchased by Gentem, and Gentem will have no recourse to Provider if any Future Receivable purchased by Gentem is not collected due solely to the occurrence of an event of assumed Credit Risk occurring, as to any Future Receivable purchased by Gentem. For this purpose, “Credit Risk” means the Insurer’s Insolvency.
Without limiting the foregoing, Gentem may require that Provider repurchase any of the following on demand:
- Any Future Receivable purchased by Gentem, the payment of which has been disputed by the Insurer obligated thereon, or against which the Insurer has asserted (with or without justification) a defense, offset, counterclaim, or right of return or cancellation. Gentem is under no obligation to determine the legitimacy or enforceability of such defense, offset, counterclaim, or right of return or cancellation.
- Any Future Receivable purchased by Gentem regarding which Provider has breached any warranty as set forth in this Agreement.
- All Future Receivables purchased by Gentem upon the occurrence of an Event of Default, or upon the termination date of the Agreement.
- Any Future Receivable purchased by Gentem that remains unpaid on the Late Payment Date, unless the Insurer of such Future Receivable is Insolvent on or after the Late Payment Date.
- Any portion of any Future Receivable purchased by Gentem that is subject to retainage or other or similar withholdings for which Provider received payment from Gentem.
For any repurchased Future Receivable purchased by Gentem (“Repurchased Future Receivable”), Provider shall pay to Gentem the then-unpaid Face Amount of such Future Receivable, together with any unpaid fees relating to said Future Receivable, on the next banking day following the date of receipt by Provider of the repurchase demand.
At Gentem’s option, Gentem may set off the amount due from Provider for a Future Receivable purchased by Gentem that Gentem is requiring the Provider to repurchase, and any related fees, expenses or other owed amounts, against any amount owed to Provider by Gentem and/or any and all other amounts to be paid to Provider by the Insurer (and whether or not such payments are made on the Future Receivable purchased by Gentem).
1.7 Security Interest
In the event that, notwithstanding Provider and Gentem’s mutual intent, the transfer and assignment contemplated under the Agreement is not held to be a sale, Provider hereby grants Gentem a security interest (“Security Interest”) in the Future Receivables and all proceeds arising thereunder. In no event shall Gentem be a fiduciary of the Provider, although Provider may be a fiduciary of Gentem.
1.8 Provider Covenants
Provider shall not (a) grant any extension of time for payment of any Eligible Future Receivable, (b) compromise or settle any Eligible Future Receivable for less than the full amount thereof, (c) release in whole or in part any Eligible Future Receivable, (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any Eligible Future Receivable or (e) require, request or otherwise encourage the Insurer to make payment on the Eligible Future Receivable or any Future Receivable purchased by Gentem to any third party other than Gentem.
Each and every Provider whose accounts are offered for purchase, are independent, Non-related Business Enterprises with respect to Insurers for any Eligible Future Receivable. Provider will not obtain factoring or other financing on any Future Receivable purchased by Gentem from any other source, nor shall any affiliated person or entity obtain such factoring or financing.
Provider shall not create, incur, assume or permit to exist any lien or security interest in the Eligible Future Receivable or the Future Receivable purchased by Gentem, except for the Security Interest created by this Agreement.
Provider shall pay to Gentem on the next banking day following the date of receipt by Provider the amount of any payment for a Future Receivable purchased by Gentem.
Provider will treat Gentem’s purchase of any Future Receivables as a sale for tax, accounting and financial reporting purposes.
1.9 Medical Factoring Representations and Warranties
Provider represents and warrants that:
- The Future Receivables purchased by Gentem are and will remain (i) bona fide existing obligations created by the sale and delivery of goods or the rendition of services in the ordinary course of Provider’s business; (ii) unconditionally owed and will be paid to Gentem without defenses, disputes, offsets, counterclaims, or rights of return or cancellation; and (iii) arising out of goods or services provided to a person that is not affiliated with Provider, directly or indirectly, as part of an “arm’s length” transaction in the ordinary course of Provider’s business;
- Provider has not received notice or otherwise learned of actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any applicable Insurer regarding the Future Receivables purchased by Gentem from Provider;
- Provider is entering this Agreement for business purposes and not as a consumer for personal, family, or household purposes; and
- No agreement has been made under which the Insurer may claim any deduction or discount against the Future Receivables.
1.10 Indemnification; Avoidance Claims
Provider agrees to indemnify and hold harmless Gentem from any loss arising out of the assertion of any Avoidance Claim and shall pay to Gentem on demand the amount thereof. Provider shall notify Gentem within two business days of it becoming aware of the assertion of an Avoidance Claim. These obligations shall survive termination of the Agreement.
1.11 Events of Default
The following events will constitute an “Event of Default” under this Agreement: (a) Provider defaults in the payment of any Obligations or in the performance of any provision hereof, including if Provider fails to repurchase a Future Receivable purchased by Gentem in accordance with the terms hereof, or of any other agreement now or hereafter entered into with Gentem, or any warranty or representation contained herein proves to be false in any way, whether material or immaterial; (b) Provider becomes subject to any debtor-relief proceedings; (c) upon Gentem’s learning of any material adverse change in Provider’s business; (d) Gentem for any reason, in good faith, deems itself insecure with respect to the prospect of repayment or performance of the Obligations; (e) Provider grants a security interest in the Future Receivable purchased by Gentem to another creditor and/or the Future Receivable purchased by Gentem are encumbered by a party other than Gentem; or (f) Provider violates any term or covenant in this Agreement.
1.12 Effect of Default
- Upon the occurrence of any Event of Default, in addition to any rights Gentem has under this Agreement or applicable law, Gentem may immediately terminate the Agreement, at which time all Obligations shall immediately become due and payable without notice. All rights, powers and remedies of Gentem in connection with this Agreement may be exercised at any time by Gentem after the occurrence of an Event of Default, are cumulative and not exclusive and shall be in addition to any other rights, powers or remedies provided by law or equity; and/or
- The Late Charge shall accrue and is payable on demand on any Obligation not paid when due.
1.13 Required Notifications
- Provider is required to give Gentem written notice within 24 hours of any filing under Title 11 of the United States Code.
- Provider is required to give Gentem seven (7) days’ written notice prior to the closing of any sale of all or substantially all of the Provider’s assets or stock.
- Provider will not change any of its places of business, or change its legal name, entity type or state of formation, unless it has provided the Gentem with not less than thirty (30) days’ prior notice thereof and has provided Gentem with any documents, agreements and information reasonably requested by the Gentem with respect thereto.
- Provider will not change the Designated Bank Account name, password or other access information relating to the Designated Bank Account from which ACH or electronic check payments are to be made without giving Gentem at least ten (10) business days’ prior notice of such change.
1.14 Account Stated
Gentem shall, from time to time make available to Provider a statement setting forth the Medical Factoring transactions arising under this Agreement. Each such statement shall be considered correct and binding upon Provider as an account stated, except to the extent that Gentem receives, within sixty (60) days after the statement is made available to the Provider, written notice from Provider of any specific exceptions by Provider to that statement, and then it shall be binding against Provider as to any items to which the Provider has not objected.
1.15 Continuation of Security Interest; Accounting for Repurchased Future Receivables
Notwithstanding termination of the Agreement, so long as any amounts owed to Gentem under the Agreement remain unpaid, (i) Gentem’s security interest in the Future Receivable purchased by Gentem and related proceeds shall continue in full force and effect, and (ii) any payments on Repurchased Future Receivables and other unpaid Future Receivables will continue to be collected by Gentem as collecting agent for Provider and as security for any Obligations of Provider due or to become due under the Agreement. Upon receipt by Provider of any amounts tendered in payment of such Repurchased Future Receivables and other Future Receivables, the full amount thereof shall be remitted by Provider to Gentem to assure proper accounting of the payment. Gentem will thereafter forward to Provider Provider’s share of such billing, less any adjustments, deductions or offsets permitted under the Agreement.
- Receive, take, endorse, assign, deliver, accept and deposit, in the name of Gentem or Provider, any and all proceeds of any Future Receivable purchased by Gentem securing the Obligations or the proceeds thereof, which includes, for the avoidance of doubt, Gentem taking and accepting any payments made by the Insurer on or against the Future Receivable purchased by Gentem;
- Take or bring, in the name of Gentem or Provider, all steps, actions, suits or proceedings deemed by Gentem necessary or desirable to effect collection of or other realization upon the Future Receivable purchased by Gentem;
- Pay any sums necessary to discharge any lien or encumbrance which is senior to Gentem’s security interest in any assets of Provider, which sums shall be included as Obligations under the Agreement, and in connection with which sums the Late Charge shall accrue and shall be due and payable;
- File in the name of Provider or Gentem or both, (i) mechanics lien or related notices, or (ii) a power of attorney which enables Gentem to be copied on all correspondence from and/or represent Provider before the Internal Revenue Service, and communicate with the Internal Revenue Service (including Internal Revenue Service Forms 2848 and 8821);
- Notify any Insurer obligated with respect to any Future Receivable, that the underlying Future Receivable has been assigned to Gentem by Provider and that payment thereof is to be made to the order of and directly and solely to Gentem;
- Communicate directly with Insurers to verify the amount and validity of any Future Receivable created by Provider.
- After an Event of Default, extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and upon any terms or conditions, any and all Future Receivables and discharge or release any Insurer or other obligor (including filing of any public record releasing any lien granted to Provider by such Insurer), without affecting any of the Obligations;
- After an Event of Default, set off the amount due from Provider for a Future Receivable purchased by Gentem that Gentem is requiring the Provider to repurchase, and any related fees, expenses or other owed amounts, against any amount owed to Provider by Gentem and/or any and all other amounts to be paid to Provider by the Insurer (and whether or not such payments are made on the Future Receivable purchased by Gentem).
- File any initial financing statements and amendments thereto that (i) identify the Future Receivables purchased by Gentem; (ii) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including whether the Provider is an organization, the type of organization, and any organization identification number issued to the Provider; (ii) contain a notification that the Provider has granted a negative pledge with respect to the Future Receivables purchased by Gentem to Gentem, and that any subsequent lienor may be tortuously interfering with Gentem’s rights; or (iv) advises third parties that any notification of Provider’s Insurers will interfere with Gentem’s collection rights.
- Provider authorizes Gentem to accept, endorse and deposit on behalf of Provider any checks tendered by an Insurer “in full payment” of its obligation to Provider. Provider shall not assert against Gentem any claim arising therefrom, irrespective of whether such action by Gentem effects an accord and satisfaction of Provider’s claims, under §3-311 of the Uniform Commercial Code, or otherwise.
- From time to time as requested by Gentem, Gentem or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all premises where Future Receivables purchased by Gentem are located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Future Receivables purchased by Gentem, including Provider’s books and records, and Provider shall permit Gentem or its designee to make copies of such books and records or extracts therefrom as Gentem may request. Without expense to Gentem, Gentem may use any of Provider’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of accounts and realization on other collateral as Gentem, in its sole discretion, deems appropriate. Provider hereby irrevocably authorizes all accountants and third parties to disclose and deliver to Gentem at Provider’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Gentem.
1.17 Account Disputes
Provider shall notify Gentem promptly of and, if requested by Gentem, will settle all disputes concerning any Future Receivable purchased by Gentem, at Provider’s sole cost and expense. Gentem may, but is not required to, attempt to settle, compromise, or litigate (collectively, “Resolve”) the dispute upon such terms, as Gentem in its sole discretion deem advisable, for Provider’s account and risk and at Provider’s sole expense. Upon the occurrence of an Event of Default Gentem may Resolve such issues with respect to any Future Receivable of Provider.
1.18 No Lien Termination without Release
In recognition of Gentem’s right to have its attorneys’ fees and other expenses incurred in connection with this Agreement secured by the Future Receivable purchased by Gentem, notwithstanding payment in full of all Obligations by Provider, Gentem shall not be required to record any terminations or satisfactions of any of Gentem’s liens on the Future Receivable purchased by Gentem unless and until Gentem has received payment in full of all Obligations owed by Provider to Gentem. Provider understands that this provision constitutes a waiver of its rights under §9-513 of the UCC.
6. LIMITED LICENSE AND USE
Gentem grants Provider a non-exclusive, limited, non-transferable, and revocable license to use and access the Services solely for its own internal business purposes and subject to this Agreement. Any other use is strictly prohibited.
Provider agrees to comply with all applicable laws and regulations and all third-party payment network or payment clearinghouse rules, guidelines, requirements, and prohibitions when using or accessing the Services.
Provider further agrees that it will not (i) license, sublicense, sell, resell, rent, transfer, assign or distribute its rights to access and use the Services to any other party or otherwise commercially exploit the Services or (ii) access or use the Services in order to (a) build a competitive service or product; (b) build a service or product using similar ideas, features, functions or graphics; (c) monitor its availability, performance or functionality or for any other benchmarking or competitive purposes; or (d) copy any ideas, features or functions of the Services.
Upon request, Provider will permit Gentem to reasonably investigate or audit Provider’s compliance with the foregoing in connection with Provider’s use of the Services.
7. INTELLECTUAL PROPERTY RIGHTS
Except for the limited license granted to Provider in this Agreement, Gentem and its third party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the Services, any related technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Provider or any other party. This Agreement does not convey to Provider or any other Person any rights of ownership in or related to the Services or or any other intellectual property rights of Gentem or any other Person. Gentem’s name, logos and the product names are trademarks or service marks of Gentem or third parties, and no right or license is granted for Provider to use them.
Provider agrees that any communication or materials it sends to Gentem in connection with its use of the Services, electronically or otherwise, including but not limited to data, questions, comments, survey responses, suggestions or submissions, is and will be treated as non-confidential and non-proprietary and may be used by Gentem for any purpose including, but not limited to modification, reproduction, transmission, disclosure, publication, broadcast, and posting.
8. THIRD-PARTY SERVICES
The Services may contain links to third-party websites. The linked sites are not under our control and we are not responsible for the contents of any linked site. Gentem provides these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third party services or websites.
Provider is responsible for all activities that occur through its access to and use of the Services. Provider shall: (i) keep all related passwords and login IDs confidential and promptly notify Gentem after discovery of any unauthorized use of any password or Gentem Account or any other known or suspected breach of security and (ii) not impersonate another user of the Services or provide false information to gain access to or use the Services. Any person accessing any portion of the Services or taking any action on behalf of Provider represents and warrants to Gentem that it has full authority to do.
10. NO WARRANTY
THE PROVIDER SERVICES ARE PROVIDED AND MADE AVAILABLE STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. GENTEM DOES NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS RELATED THERETO. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM COMPUTER VIRUSES OR ANY OTHER HARMFUL OR CORRUPTED FILES, ARE HEREBY DISCLAIMED AND GENTEM SHALL HAVE NO LIABILITY OR RESPONSIBILITY RELATED THERETO, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
11. LIMITATION OF LIABILITY
PROVIDER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER GENTEM NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, PUNITIVE, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR EXAMPLE, LOSS OF GOODWILL, DATA, REVENUE, PROFITS, SAVINGS, USE OR ECONOMIC ADVANTAGE), OR CLAIMS OF THIRD PARTIES ARISING OUT OF, OR RELATING TO, PROVIDER’S USE OF OR ACCESS TO THE SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY, OR OTHERWISE AND PROVIDER HEREBY WAIVES ANY AND ALL RELATED CLAIMS AGAINST GENTEM AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS.
Provider agrees to indemnify and hold harmless Gentem, its affiliates and their respective officers, directors, employees and agents (the “Indemnified Parties”) against and save the Indemnified Parties harmless from any and all manner of suits, claims, liabilities, demands and expenses (including reasonable attorneys’ fees and collection costs) resulting from or arising out of the use of the Services, whether directly or indirectly, including the transactions or relationships contemplated thereby and hereby, and any failure by Provider to perform or observe its obligations under this Agreement. This paragraph shall exclude any suits, claims, and liability arising solely from Gentem’s gross negligence or willful misconduct.
13. COVENANT NOT TO SUE
Provider agrees that they will never institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action or cause of action at law or in equity against the Gentem for a claim of usury, a claim that Gentem is required to have any lending license, or any other claim contending that the Purchase Price paid by the Gentem in exchange for the Future Receivables is, or should be construed as, a loan from the Gentem to the Provider. Nothing in this paragraph is intended to prevent Provider from complying with any lawfully issued subpoena or court ordered discovery.
This Section 12 is a covenant not to sue, and not a release. In the event that the Provider breaches or in any way violates the terms of this Section 12, Provider agrees to indemnify the Gentem for all damages arising from that breach, including without limitation the payment of all costs and expenses of every kind for the enforcement of Provider’s rights and remedies under this section, including any and all attorneys’ fees and costs in any trial court or appellate court proceeding, any administrative proceeding, any arbitration or mediation or any negotiations or consultations in connection with breach of this section.
This covenant shall inure to the benefit of Getnem, and shall bind Provider, its successors and/or assigns, any of their respective affiliated or subsidiary companies, partners, owners, joint venturers and/or any of Provider’s managers, directors, officers, employers or agents.
This Agreement is effective until terminated. Gentem may terminate this Agreement at any time without notice, or suspend or terminate your access to, or use of, your Gentem Account or the Services at any time, with or without cause, in Gentem’s absolute discretion and without notice. Any limitation or termination of your access to or use of your Gentem Account or the Services will not affect in any way Gentem’s right to and in the Eligible Future Receivables.
It is the responsibility of Provider to determine what, if any, taxes apply to the transactions Provider completes through the Services, and any profit or loss Provider obtains therefrom. It is the responsibility of Provider to collect, report, withhold, and remit the correct taxes to the appropriate tax authorities.
Provider agrees that certain non-public information provided by Gentem to Provider, including information relating to the Services or Gentem’s business processes, that is identified by Gentem as confidential or that a reasonable person would understand to be confidential will be held by Provider in strict confidence and treated as the confidential and proprietary property of Gentem. Provider will not disclose any of the foregoing to any Person, unless specifically authorized to do so in writing by Gentem or unless required by law.
Gentem will take reasonable efforts to maintain in confidence any non-public information provided by Provider to Gentem that is expressly identified by Provider as confidential or that a reasonable person would understand to be confidential. Gentem will not disclose confidential and non-public records and information of Provider to any Person, unless specifically authorized to do so by Provider or unless required by law.
17. COUNTERPARTS AND USE OF ELECTRONIC RECORDS AND SIGNATURES
You agree that Gentem may provide you notices, disclosures, electronic records, and other communications by posting on the Site, through the Services, by e-mail, by short message service (“SMS”), or by regular mail. We will use the Account Information that we have on file to contact you. Communications to you will be considered received when sent by us to the address or phone number that you have provided in your Account Information. In addition, please note that electronic records and signatures may be used in connection with the execution of ACH authorization forms, acceptance of this Agreement or acceptance of applicable fees.
18. SMS MESSAGING AND TELEPHONE CALLS
- 18.1 You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information such as updates about our purchase of Eligible Future Receivables or other information about your use of the Services and/or your Gentem Account. You certify, warrant and represent that the telephone number you have provided to us is your business contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us on behalf of Provider. You agree to promptly alert us whenever you stop using a telephone number. Gentem and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means.
- 18.2 Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
Gentem may give notices regarding the Services to Provider by sending notice through the Gentem website or any other Gentem web portal used by it in connection providing the Services, by email or by any other reasonable means of communication. Such notices are deemed given 24 hours after transmission. Provider agrees that its continued use of the Services thereafter will constitute Provider’s agreement to any such changes.
Gentem may assign its rights and delegate its duties, in whole or in part, under this Agreement without obtaining Provider’s consent or approval. Upon such assignment, Provider shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and shall accept performance under this Agreement by such assignee as if such assignee were Gentem. Provider may not assign its rights or delegate its duties, in whole or in part, without prior written consent from Gentem, including by operation of law or in connection with any change of control.
This Agreement shall be deemed made in, and governed by the laws of, the state of California without regard to the choice or conflicts of law provisions of any jurisdiction.
THE PARTIES AGREE THAT ALL DISPUTES AND CONTROVERSIES OF ANY NATURE (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING OUT, RELATING TO, OR IN CONNECTION WITH THE SERVICES AND PROVIDER’S USE THEREOF, THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CHOICE OR CONFLICTS OF LAW PROVISIONS OF ANY JURISDICTION AND WILL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND NOT CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES.
THE PARTIES AGREE THAT ALL ACTIONS ARISING OUT, RELATING TO, OR IN CONNECTION WITH THE SERVICES AND PROVIDER’S USE THEREOF, AND THE RELATIONSHIPS RESULTING THEREFROM OR THE VALIDITY, SCOPE, INTERPRETATION OR ENFORCEABILITY OF THE CHOICE OF LAW AND VENUE PROVISION OF THIS AGREEMENT SHALL BE BROUGHT IN EITHER THE COURTS OF THE STATE OF CALIFORNIA SITTING IN SAN FRANCISCO COUNTY, AND EXPRESSLY AGREE TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.
Gentem will not be liable for any loss or damage arising from any event beyond Gentem’s reasonable control, including, but not limited to, flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.
The parties are independent contractors and no joint venture, partnership, employment, or agency relationship or lender-borrower relationship exists between Provider and Gentem as a result of the use of the Services. The failure of Gentem to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Gentem in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly so stated in writing. Gentem’s rights and remedies herein are cumulative and not exclusive of each other or of any rights or remedies that Gentem would otherwise have.
All provisions of this Agreement which by their nature should survive termination shall survive termination.
Capitalized terms used herein shall have the following meanings, unless otherwise defined in the Uniform Commercial Code:
- “Insurer” means an insurance company obligated on a Future Receivable.
- “Avoidance Claim” means any claim that any payment received by Gentem is avoidable under the Bankruptcy Code or any other debtor relief statute.
- “Eligible Future Receivable” means a Future Receivable that is posted by Provider for collection from the Insurer through the Service, has been tendered by Provider for sale to Gentem in accordance with this Agreement, and is acceptable for purchase as determined by Gentem in the exercise of its sole credit or business judgment.
- “Face Amount” means the face amount due on a Future Receivable at the time of purchase.
- “Insolvent” means that the Insurer has failed to pay a Future Receivable purchased by Gentem solely as a result of (i) the sum of the Insurer’s debts being greater than the sum of its assets or (ii) a general inability of the Insurer to pay its debts as they become due. “Insolvency” is presumed in cases where either (i) Gentem has reasonably determined that an Insurer has become Insolvent, or (ii) a voluntary or involuntary petition is filed to declare the Insurer bankrupt or to allow reorganization or refinancing under a plan to meet the debts of the Insurer under any applicable bankruptcy law. In all other cases, the burden of proof for establishing the insolvency of an Insurer shall rest solely on the Provider, with it being presumed that at all relevant times an Insurer is not Insolvent.
- “Late Charge” shall mean interest accruing on any outstanding amounts at 2% per month or, if less, the maximum rate permitted by applicable law.
- “Late Payment Date” means, for each Future Receivable purchased by Gentem, 90 days after the date the Future Receivable was purchased.
- “Non-related Business Enterprises” means a person with whom Provider, its principals, officers, relations, employees or agent have no direct or indirect ownership, interest or affiliation.
- “Obligations” means all present and future obligations owing by Provider to Gentem whether arising under the Agreement or otherwise, and whether arising before, during or after the commencement of any bankruptcy proceeding in which Provider is a debtor.
- “Person” means an individual, a corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a government body.
- “Provider” means any Person and their affiliates using or accessing the Provider Services and any related functionality or services.
- “Purchase Price” means the price Gentem agrees to pay for a Future Receivable.
- “Service” means the specific edition of Gentem’s online medical factoring service and other services developed, operated, and maintained by Gentem accessible via a designated web site or IP address.