Effective date : March 2023
This service agreement (including the Proposal and any Change Request, the “Agreement”) is between the individual or entity identified in a Proposal (the “Client”; “you”, “your”) and Zone3W Inc., having its head office at 350 Charest Blvd. E., 3rd floor, Quebec City, QC G1K 3H5 (“Xacte”, “we” or “our”).
This Agreement takes effect upon execution of the relevant Proposal and will remain in effect until terminated in accordance with this Agreement.
The person who executes a Proposal on behalf of the Client represents and warrants being authorized to bind the Client and having the power to enter into this Agreement on behalf of the Client.
Terms not otherwise defined in this Agreement have the meanings given to them below.
“Affiliate” means any entity that holds more than half of the share capital of any of the parties to this Agreement, as well as any entity in which such entity holds more than half of the share capital.
“Aggregate Information” means Client Information that is aggregated with other data or data sets in a manner that (a) does not allow individuals to be identified, including patients or Users, and (b) does not allow Clients to be identified. Aggregate Information is not specific to the Client’s activities or use of the Services and no longer constitutes Confidential Information.
“Anonymized Information” means Personal Information that has been anonymized in accordance with Applicable Legislation and no longer allows for direct or indirect identification. For the avoidance of doubt, the Anonymized Information is Client Information and does not include Personal Information. Anonymized Information also includes all information that is not personal.
“Applicable Legislation” means all statutes applicable to the Services, the Client in the use of the Services, or otherwise to the obligations of the parties in or to this Agreement, including, but not limited to, statutes, regulations, rules, orders, orders in council, professional practice and ethical obligations, and any guidelines having the force of law.
“Change Request” means a modification or addition to the Proposal that the Client approves, executes, signs or accepts, and which is deemed to be attached and form part of the Agreement.
“Client Information” means Confidential Information, Anonymized Information and Personal Information, including Patient Information, which is processed by Xacte in connection with the Services.
“Compensation Method” means the compensation method for the care received, including fee for service, blended, administrative or other compensation.
“Confidential Information” means all information, regardless of its format, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether directly or indirectly, of a commercial, financial or technical nature, and includes, without limitation, Client Information, Xacte’s business processes, as well as Xacte’s code, algorithms and technologies, and any other information that a reasonable person would consider confidential.
“Fees” means all fees owed by the Client to Xacte under the Agreement, including any costs, expenses, fees and taxes that Xacte is required to charge the Client under Applicable Legislation, if any.
“Login Credentials” means user names, passwords and security questions or other information required to access the Services.
“Patient Information” means information about a patient that relates to the patient’s health, medical records and care and that Xacte processes as part of the Services for health professionals to be compensated.
“Personal Information” means information (including Patient Information, if any) that is used to identify, directly or indirectly, an individual and that is processed in connection with the Services by Xacte.
“Plan Term” means the period during which the Services are made available to the Client and its Users in accordance with this Agreement. The start date of the Plan Term appears in the Proposal.
“Privacy Incident” means the loss or unauthorized disclosure of or access to Client Information, each resulting from a breach of security measures.
“Proposal” means a quotation, purchase order, estimate or procurement document issued by Xacte, which the Client approves, executes, signs or accepts, and which is deemed to be attached and form part of the Agreement.
“RAMQ” means the Régie de l’assurance maladie du Québec.
“Report” means any report, document, web page or information sets retrievable from the Web Platform, including historical data on the use of the Services and reports relating to compensation claims. A Report is generated using Client Information and Web Platform features.
“Services” means medical billing services, the Web Platform, the App, hosting and technical support services, all as described in a Proposal. In particular, the Services allow codes to be entered electronically to compensate health professionals.
“Third-Party Services” means any product, service, application, technology and software that is not included in the Services. Third-Party Services include those that are integrated through a programming interface, such as third-party medical databases.
“User” means any person authorized by the Client to access and use the Services, including a health professional or an individual in charge of managing compensation claims for professionals.
“Web Platform” means the web application that allows Users to access secure spaces for billing, obtaining Reports or otherwise using the Services, as accessed through a web browser. For the purposes of this Agreement, the Web Platform includes the Xacte mobile app.
2.1. Provision. Xacte will provide the Services described and agreed to in a Proposal. A Proposal can only be changed through a Change Request. In the event of a conflict between the terms of one of these documents and the rest of the Agreement, this conflict will be resolved in the following order of precedence: (a) Change Request; (b) Proposal and (c) the rest of the Agreement. Xacte represents and warrants that the Services will be performed in an appropriate and professional manner.
2.3. Technical support. During the Plan Term, Xacte will provide technical support services via email, Monday through Friday, 8:30 a.m. to 5:00 p.m. ET (the “Normal Business Hours”). During Normal Business Hours, Xacte will use commercially reasonable efforts to respond to technical support requests within 24 business hours and will provide updates on the time required to process such requests.
Availability. During the Plan Term, Xacte will use commercially reasonable efforts to ensure the availability of the Web Platform 24 hours a day, every day of the year. The Web Platform is considered to be available unless an essential part of the Web Platform is unavailable, in particular when it cannot be used to access the Services. Notwithstanding the foregoing and any indication to the contrary, Xacte will not be liable for the unavailability of the Web Platform where due to circumstances beyond Xacte’s reasonable control, in particular (a) the interruption of RAMQ services, or changes caused by the RAMQ for which Xacte must adapt the Services; (b) a power or Internet outage; (c) acts or omissions of the Client and any of its service providers or agents; (d) any suspension due to a breach of this Agreement; (e) any use of the Services in violation of this Agreement; and (g) any emergency security patch that is required to be deployed, with or without notice to the Client.
3.1 Use of the Services For the Plan Term, and subject to this Agreement, Xacte grants the Client a right and licence that are non-exclusive and non-transferable (except as set out herein), revocable (but only as set out herein), and non-sublicensable (except to Users, as set out herein) to access Services and use them (and to enable Users to do the same) for the intended purpose, and in accordance with this Agreement.
3.2 Reports. The Services allow the Client to generate Reports on its use of the Services. Xacte grants the Client an exclusive, perpetual, non-sublicensable, non-transferable right and licence (except as set out herein) to download, use, change and translate the Reports for its internal use. For the avoidance of doubt, the Client is not permitted to sell or market the Reports.
3.3 Client Information. For the Plan Term, the Client hereby grants to Xacte a right and licence that are non-exclusive, non-transferable (except as set out herein), non-sublicensable (except as set out herein) and non-revocable (except as set out herein) to aggregate, depersonalize, change and use the Client Information to provide the Services, including any required disclosure to the RAMQ, subject to the Agreement.
3.4 Anonymized Information. For the Plan Term, the Client hereby grants to Xacte a right and licence that are exclusive, non-assignable (except as set out herein), non-sublicensable (except as set out herein) and non-revocable (except as set out herein) to aggregate, change and use the Anonymized Information (a) to provide the Services; (b) to improve the Services; (c) to conduct research and development activities and (d) to comply with Applicable Legislation, or otherwise as set out in this Agreement, including to generate Aggregated Information.
4.1 Exclusions. Confidential Information does not include information the Receiving Party can demonstrate:
4.2 Obligations. The Receiving Party is permitted to use or disclose the Confidential Information solely:
4.3 Termination. If this Agreement is terminated for any reason whatsoever, the Receiving Party must, at the option of the Disclosing Party:
5.1 Applicable Legislation. Each party must comply with the Applicable Legislation
governing the collection, use and disclosure of Personal Information.
5.2 Xacte’s compliance. Xacte collects, uses and discloses patients’ Personal Information
or as necessary to perform the Services.
5.3 Cooperation. The parties agree to cooperate in good faith to amend this Agreement if
5.4 Security measures. Xacte maintains commercially reasonable technical and organizational measures, such as end-to-end encryption, to secure its systems against any Privacy Incidents, particularly encryption of Client Information during transmission and at rest.
5.5 Privacy Incident. Upon becoming aware of a Privacy Incident, Xacte must notify the
Client in writing as soon as reasonably practicable (the “Incident Notice”). At a
minimum, the Incident Notice must include the following:
6.1 Property and updates. Notwithstanding anything to the contrary in this Agreement, and between the parties, Xacte owns all rights and title to and interests in (a) the Services and (b) the Aggregate Information, including any derivative work thereof. This Agreement operates on a subscription basis for access to and use of the Services. All rights not granted under this Agreement are reserved. The Client acknowledges that it obtains only a limited right of use of the Services and that regardless of the use of the words “purchase”, “sale” or other similar terms, this Agreement does not confer any property rights on the Client. Except for their object code, the Services are offered as an online, hosted product. Accordingly, the Client acknowledges and agrees that it is not entitled to obtain a copy of the software underlying any Services and that Xacte, at its discretion, may make updates, bug fixes, changes or improvements to the Services from time to time. For the avoidance of doubt, and between the parties, the Client owns all rights and title to and interests in the Client’s Information.
6.2 Feedback and suggestions. If the Client submits suggestions, comments or improvements relating to the Services (a “Suggestion”), the Client understands that Xacte may use such Suggestions for the purpose of marketing the Services. The Client hereby waives any intellectual property rights to Suggestions and, if not permitted by Applicable Legislation, assigns its intellectual property rights to such Suggestions to Xacte, which hereby accepts such assignment. Notwithstanding the foregoing, the Client retains the right to use such Suggestion for its internal commercial use.6.3 Brands and logos. Unless otherwise stated, all trademarks and logos, and all works, including text, images, illustrations, software, HTML code, audio clips and videos appearing on the Services, are owned by us or by our licensors. They may not be reproduced, republished, downloaded, posted, transmitted, distributed or modified, in whole or in part, in any form whatsoever, without our express written permission,
7.2 Compensation Claims. The Client ensures that its Users make the appropriate selections and provide the information required in the Web Platform or in the App, if applicable, particularly with regard to the Compensation Method, the place of delivery of care and the patient’s health insurance number that are associated with a payment claim to the RAMQ filed through Client access (each a “Compensation
Claim”). In general, the Client is responsible for ensuring that Compensation Claims are in accordance with the compensation process authorized by the RAMQ and submitted within the deadlines set by the RAMQ. Xacte declines liability for payment errors or errors related to Compensation Claims for health care professionals that result from Users’ failure to comply with the Applicable Legislation governing Compensation Claims, including any guidelines issued by the RAMQ.
7.3 Compensation by the RAMQ. The Client directly receives payments from the RAMQ relating to Compensation Claims. Subject to the terms and conditions of a Proposal or any Change Request, as the case may be, Xacte is not responsible for following up on Compensation Requests with the RAMQ, and in the event of a problem, the Client must contact the RAMQ directly. Xacte will not provide legal advice with respect to the compensation of health professionals, or otherwise with respect to the Services.
7.4 Required authorizations. Xacte also has no responsibility for obtaining any consent or any obligation to inform patients. The Client represents and warrants that it has all necessary rights, and if any, the necessary consents under Application Legislation to allow Xacte to provide the Services, including to process Personal Information. In the event of a claim against Xacte resulting from any breach of such warranty, the Client
understands that Xacte will not be held liable, and that the Client will be liable for any damage resulting from such claim.
7.5 Prohibited uses. The Client agrees not to do any of the following or allow a User to do any of the following:
7.6 Account security. Users must have an account to access and use the Services. Users are responsible for keeping their login credentials confidential, and Xacte declines any liability if an account is compromised. If the Login Credentials are compromised, the Users are responsible for notifying us without delay of the situation so that we can conduct reasonable investigations and take any action necessary to protect the Services, in our sole discretion. The Client agrees to cooperate with such investigations.
7.7 Third-party claims. In the event of a third-party claim related to a violation of this section 7 by the Client or one of its Users, the Client will indemnify and defend Xacte and hold it harmless (including its Affiliates, employees, directors, shareholders and agents) in respect of any claim, suit, action, proceeding, loss, fine, penalty and any damage originating from such third party.
Xacte reserves the right to suspend access to the Services in the event of a violation of this section 7 by the Client or its Users. Such suspension will be limited to the strict minimum to resolve the issues that led to such suspension, and Xacte will reactivate the Services without undue delay once such issues have been resolved.
8.1 Monthly subscription. Unless otherwise specified in the Proposal, the Plan Term is determined based on an automatically renewable monthly subscription. The subscription ends with 30 days’ written notice.
8.2 Payment of fees. The Client agrees to pay Fees in accordance with the payment terms stipulated in the Proposal. Unless otherwise specified in the Proposal, Fees are payable monthly for the current month by direct debit or credit card. The Client has a 30-day period from the receipt of an invoice to contest the invoice in accordance with this Agreement. After this period, the Client will no longer be able to dispute an invoice. Fees are non-cancellable and non-refundable, unless otherwise indicated herein.
8.3 Taxes. The Client agrees to pay any taxes that Xacte is required to charge under Applicable Legislation or for administrative purposes. If the Client is tax-exempt under Applicable Legislation, it must provide proof of such exemption upon request and will be liable for any subsequent third-party claims submitted to Xacte resulting from any misrepresentation of exemption.
8.4 Payment information. Unless otherwise specified in a Proposal, the Client agrees to provide Xacte with information relating to its bank account or credit card for it to collect Fees based on the Proposal. The Client represents and warrants that (a) it is authorized to use such bank information or credit card; (b) it will notify Xacte of any changes in its banking or credit card information to ensure the Fees are processed. For the avoidance of doubt, the Client specifically authorizes Xacte to debit the Fees from the Client’s credit card or bank account in accordance with the Proposal (as amended from time to time by Change Requests).
8.5 Past-due Fees. If Fees are not paid within 45 days, the Client agrees that Xacte will charge interest equal to 1.5% per month or 18% per annum on such past-due Fees. If Fees are not paid within 60 days, the Client accepts liability for all past-due collection fees, including reasonable attorneys’ fees.
8.6 Account suspended or locked for non-payment. If an amount owing is more than 90 days past due, Xacte is permitted to deactivate or lock the Client’s account, provided, however, that it informs the Client of the past-due amounts before deactivating or locking the Client’s account.
9.1 Termination for breach of the Agreement. A party may terminate this Agreement in writing to the other party if the latter breaches this Agreement and fails to remedy its default within 30 days. Notwithstanding the foregoing, Xacte is permitted to terminate this Agreement if the Client has been in payment default for more than 90 days from the due date, and the Client fails to remedy the default after receiving more than
two written notices during that period.
9.2 Termination with notice. We may terminate this Agreement for convenience upon 90 days’ prior notice. We will not be liable for any loss or inconvenience that may result from such termination. We will reimburse the Client for any Fees paid in advance for the Services rendered up to the date of termination, if applicable.
9.3 Effect of termination. If this Agreement is terminated, all Change Requests and any Proposals will be automatically terminated, and the Client (including all Users) will cease to have access to the Services, including all Client Information hosted in connection with the Services. If the termination results from Xacte’s breach of this Agreement, Xacte must reimburse the Client for any fees paid for Services that have
not been rendered at the termination date. However, if the termination results from a breach of this Agreement by the Client, all Fees due for the Services during the Plan Term will be immediately due and no refund will be payable to the Client for such Fees. The parties agree that the termination provisions set out in this section 9 will apply instead of articles 2125 and 2129 of the Civil Code of Québec and will result in
their unenforceability, the parties hereby waiving these articles on the basis of the conditions agreed to herein. Section 3.2 , 4 , 6 , 9.3 , 9.4 , 10 , 11 , 14 , 15 and all relevant definitions will survive the termination of this Agreement for any reason whatsoever.
9.4 Client Information. Within 30 days from the date of termination, the Client may request a copy of the Client Information that Xacte is able to extract. After this period, the Client understands that it will no longer be able to obtain copies of its Client Information, including any document relating to the compensation of professionals. The Client is solely responsible for the retrieval and retention of its compensation files, including all compensation claims, proof of sending or proof of payment. The Client must maintain appropriate copies of such documents and understands that the Services must not be used as an archival system. Xacte declines liability for any damage arising from the loss of Client Information if the Client fails to maintain backup copies appropriate to its activities.
10.1 General. To the maximum extent permitted under Applicable Legislation and subject to the provisions of this Agreement, Xacte does not warrant that the Services will be uninterrupted or error-free, and makes no warranties as to the results that may be obtained in connection with the use of the Services. To the maximum extent permitted under Applicable Legislation, Xacte makes no other representations, conditions, warranties, or guarantees, express or implied, including with respect to the accuracy, reliability, or completeness of the Patient Information, and any content, Report, or output generated on the basis of the foregoing, and expressly disclaims any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Client hereby waives any legal warranty, unless otherwise specified in this Agreement. Except as otherwise specified in this Agreement, the Services and any other elements of the Services are provided by Xacte to the Client “as is”, “where located” and “as available”.
11.1 Limitation of liability. To the maximum extent permitted under Applicable Legislation, under no circumstances will Xacte, its Affiliates, employees, officers, directors and subcontractors be liable for any loss of use, lost or inaccurate data, business interruption, loss of profits, late costs, reputational damage or any other damage that is not an immediate and direct result of its non-performance. Indirect damages are to be deemed to include special, incidental, cover, reliance or consequential damages of any kind whatsoever, even if the Client has been informed in advance of the possibility of such damages. Xacte’s total liability or that of its Affiliates, employees, officers, directors and subcontractors is not to exceed the total amount actually paid or payable by the Client to Xacte for the applicable Services or related services during the 12 months preceding the Client’s claim.
11.2 Exceptions. Notwithstanding the foregoing, none of the limitations of this section 11 excludes the liability of either party in the event of material damage, to the extent that it results from the negligence or intentional fault of a party, or in the event of death or personal injury.
11.3 Essence of the Agreement. Each party acknowledges and agrees that this section 11 is essential to this Agreement, that it constitutes a reasonable allocation of risk between the parties and that it will survive and apply to any claim related to this Agreement, any Xacte technology or any related services, regardless of the theory of liability (contractual, non-contractual, strict or otherwise).
11.4 Third-Party Services. If the Client decides to use Third-Party Services, the Client does so at its own discretion and risk. Third-Party Services are not provided by Xacte, or its subcontractors. The Client understands and agrees that:
For any question relating to the Agreement, the Client may communicate by email at email@example.com or by mail:
350 Charest Blvd. E., 3rd Floor
Quebec City, QC G1K 3H5
13.1 Changes to the Services. Xacte reserves the right to change the Services at its sole discretion, including to add or remove features. In the event of a material change, we will notify you via the contact information provided in the Proposal or through the Services. Changes to the Services must not materially and adversely affect the performance of the Services in accordance with this Agreement, including the
security of such Services.
13.2 Amendments to this Agreement. Xacte reserves the right to amend this Agreement upon 30 days’ notice during which the Client may transmit its comments or objections. If the Client continues to use the Services after this period, the Agreement, as amended, will apply. You understand that each Proposal is subject to the latest version of this Agreement, subject to the rules of section 2.1 applicable in the event of
This Agreement is governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein. The courts of the Province of Quebec, District of Quebec City, will have exclusive jurisdiction to settle any dispute arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
15.1 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, this will not affect the validity or enforceability of the remaining provisions of this Agreement. Our failure to strictly enforce any provision of this Agreement does not mean that we have waived any provision or right.
15.2 Assignment. We may assign or transfer this Agreement upon notice to you. You are not permitted to assign or transfer this Agreement or any of the obligations or rights under this Agreement to any other person.
We are entitled, at any time, to assign all or part of our rights and obligations under this Agreement to an Affiliate. The Services may then be provided by the Affiliate to which we assign this Agreement.
15.3 Relationship between the parties. The parties agree that each of them works on its own account and that they are independent contractors under the Applicable Legislation, including, without limitation, under the Income Tax Act (Canada) and any other federal or provincial legislation relating to income taxes, social security benefits or unemployment benefits. Nothing in this Agreement is to be deemed or construed as creating any other relationship, whether employer/employee, principal/agent, mandator/mandatary, joint venture, association, partnership or otherwise, between the parties.
15.4 Force majeure. Neither party is to be liable for any delay or failure to perform its obligations under this Agreement (except for payment obligations) if the delay or failure is due to causes beyond its control, such as strikes, blockades, riots, denial of service attacks, zero-day attacks, war, acts of terrorism, natural disasters, failures or reductions of power supply or telecommunications or data networks or services, or
15.5 Waiver. Any failure of a party to enforce its rights in respect of a breach of this Agreement does not constitute a waiver of the right to enforce its rights in respect of the same or any other breach of this Agreement.
15.6 Entire agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and, unless otherwise specified in a Proposal, supersedes all prior or contemporaneous communications, proposals and representations, oral or written, relating to the Services with respect to any other
matter covered by this Agreement.