Relay Terms & Conditions

The following terms and conditions (the “Terms and Conditions”) apply to the Services Agreement and License (the “Agreement”) with respect to the provision of services and licensing from RelayHub, LLC (“Relay”) to customers of Relay (“Customers”) in connection with, as applicable, the collection on behalf of customers under Medicaid and other payment services for school-based healthcare or, as applicable, the license of software to facilitate preparation of individualized education plans (“IEP”) for students.  The services provided by Relay and any license to use intellectual property under the Agreement, including the Relay Portal and Claim Management System and/or the IEP software, as applicable (the “System”) are referred to herein as the “Services.”  These Terms and Conditions are incorporated into and included in the Agreement.

1.         Indemnities.

1.1       Relay Indemnity.

(a)        Relay shall, at its expense, defend any suit or claim brought against Customer or any of its employees or directors (“Customer Indemnitees”) and shall indemnify and hold harmless the Customer Indemnitees against an award of damages and costs against any of them by a final court judgment or in settlement of such suit or claim based on (i) non-compliance with any applicable law or regulation by Relay, its employees, officers, agents or representatives, (ii) the allegation that Customer’s use of intellectual property licensed to Customer by Relay infringes a US patent or copyright, or (iii) any breach by Relay of the Agreement, provided, however, that the sole remedy for a breach of a warranty set forth in Section 7 below shall be as set forth therein.

(c)        The indemnity in Section 1.1(a) is subject to the requirements that Customer:  (i) notifies Relay in writing of a claim pursuant to such Sections (a “Customer Claim”) within ten (10) days after Customer receives notice, (ii) gives Relay sole authority to defend or settle the Customer Claim, (iii) gives Relay  all information in Customer’s control concerning the Customer Claim, and (iv) reasonably cooperates and assists Relay with defense of the Customer Claim. Customer may participate in the defense of a Customer Claim at its own expense. Relay shall not settle any Customer Claim in a manner that imputes wrongdoing to or incurs liability for Customer.

(d)       If any intellectual property used by Relay in the provision of the Services or the System becomes or in Relay’s opinion is likely to become the subject of a suit or claim of infringement of a US patent or copyright, Relay may at its option and expense (i) obtain the right for Customer to use the Services or the System, as applicable, (ii) replace or modify such intellectual property so that it becomes non-infringing, or (iii) terminate the Agreement. If Relay terminates the Agreement under this Section 1.1(d), (A) Customer shall cease to use the Services and the System; and (B) as Customer’s sole and exclusive remedy against Relay for such suit or claim, Relay shall refund any prepaid fees paid for the Services or the System.

(e)        Relay shall have no liability to Customer under this Section 1.1 if any suit or claim of infringement is based upon the use of intellectual property used in the system or otherwise in the provision of the Services: (i) in combination or use with any service or software not furnished by Relay or described in the Documentation (as defined below); (ii) in a modified state not authorized by Relay, or (iii) in a manner other than for which it was designed, if infringement would have been avoided without such use of the intellectual property.  Relay shall not be liable to Customer for any infringement claim based on actions outside of the United States or intellectual property governed by laws of any country other than the United States.

(f)        In no event shall Relay be liable to Customer under Section 1.1 for any amount in excess of the fees paid to Relay by Customer during the one-year period prior to Relay’s receipt of notice of the related claim. 

(g)       SECTION 1.1 STATES RELAY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR ANY MATTER FOR WHICH AN INDEMNITY IS GIVEN, WHICH LIABILITY IS SUBJECT TO THE LIMITATIONS IN SECTION 3.

1.2       Customer Indemnity.

(a)        Customer shall, at its expense, defend any suit or claim brought against Relay or its employees, directors and equity holders (“Relay Indemnitees”) and shall indemnify, defend and hold harmless the Relay Indemnitees against an award of damages and costs against a Relay Indemnitee by a final court judgment or in settlement of such suit or claim based on, or arising out of (i) any non-compliance with any applicable law or regulation by Customer, its employees, officers, agents or representatives and (ii) any breach by Customer of the Agreement.

(b)       Customer shall indemnify and hold harmless the Relay Indemnitees from all loss, cost, damage, or expenses (including reasonable attorneys’ fees) incurred by a Relay Indemnitee that arise out of or result from, in whole or part, any breach of Section 4.

(c)        The indemnity in Section 1.2 is subject to the requirements that Relay:  (i) notifies Customer in writing of a claim pursuant to such Section (a “Relay Claim”) within ten (10) days after Relay receives notice, (ii) gives Customer sole authority to defend or settle the Relay Claim; (iii) gives Customer  all information in Relay’s control concerning the Relay Claim, and (iv) reasonably cooperates and assists Customer with defense of the Relay Claim. Relay may participate in the defense of a Relay Claim at its own expense. Customer shall not settle any Relay Claim in a manner that imputes wrongdoing to or incurs liability for Relay. 

(d)       SECTION 1.2 STATES CUSTOMER’S ENTIRE LIABILITY AND RELAY’S SOLE REMEDY FOR ANY MATTER FOR WHICH AN INDEMNITY IS GIVEN.

1.3.      Responsibility for Disallowances.

(a)        The Customer shall defend and indemnify Relay from and against any fines or penalties imposed upon Relay as a result of an award of damages and costs against Relay due to a suit or claim by the Centers for Medicare & Medicaid Services (“CMS”), the state Medicaid agency, the US Department of Health and Human Services, a final court judgment, or a settlement of any of the foregoing based on a disallowance of claims filed by Relay on the Customer’s behalf (a “Disallowance Claim”) if Relay:  (a) notifies the Customer in writing of a Disallowance Claim within ten (10) days after Relay receives notice, (b) gives the Customer sole authority to defend or settle the Disallowance Claim, (c) gives the Customer all information in Relay’s control concerning the Disallowance Claim, and (d) reasonably cooperates and assists the Customer with defense of the Disallowance Claim. Relay may participate in the defense of a Disallowance Claim at its own expense. The Customer shall not settle any Disallowance Claim in a manner that imputes wrongdoing to or incurs liability for Relay.

(b)       If the Customer is required to return funds to CMS or the state Medicaid agency due to inaccurate information provided by the Customer to Relay, any portion of those amounts that were paid to Relay as Fees will be non-refundable.

(c)        If the Customer is required to return funds to CMS and/or the state Medicaid agency due to an error directly attributable to Relay, the Customer’s sole remedy shall be limited to a return of Fees paid to Relay for the claim that contained such error. 

During the Term, Relay will maintain Errors and Omissions insurance.

2.         Limitation on Damages.

2.1       IN NO EVENT SHALL RELAY BE LIABLE FOR SPECIAL, INDIRECT, THIRD PARTY, PUNITIVE, EXPEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS. 

2.2       Except for actions for non-payment or for breach of Relay’s or its affiliates’ intellectual property rights, no action arising out of or relating to the Agreement may be brought later than one (1) year after the cause of action became known to the injured Party.

3.         Privacy Requirements and Confidentiality.

3.1       Effective as of the date of the Agreement, the Parties have executed and delivered a Business Associates Agreement (the “BAA”).   The terms and conditions of the BAA are hereby incorporated into these Terms and Conditions.
3.2       Customer and Relay may collect and/or store Student Information (as defined below) and so respectively agree to: (a) disclose Student Information only to the extent necessary to provide and use the Services; and (b) collect and/or store Student Information in material compliance with all applicable federal, state and local laws, statutes, regulations and ordinances, including, but not limited to (i) confidentiality and rights of review of educational and medical records to the extent applicable, including, but not limited to, the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (FERPA), as amended, and 34 C.F.R. Part 99, and (ii) privacy and data security requirements  applicable to protected health information (“PHI”) as such term is defined by the Health Insurance Portability and Accountability Act, as amended, and implementing regulations (HIPAA) and the terms of the BAA.

3.3       Notwithstanding any other provision hereof, Relay or Customer may use for any purpose Student Information that has been aggregated, but only if any Student Information that constitutes PHI has first been de-identified in accordance with 45 C.F.R. § 164.514.

3.4       “Student Information” means information that identifies a student covered by the Services or with respect to which there is a reasonable basis to believe the information can be used to identify such student.

3.5       Each Party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with the Agreement, the Receiving Party shall not disclose such Confidential Information to any third party, or use it for any purpose, except for the Purpose and in connection its rights and obligations under the Agreement.  The Receiving Party shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Disclosing Party’s Confidential Information by exercising the same level of care, but no less than a reasonable degree of care that a Party uses to protect its own Confidential Information of a like nature.   Each Party shall only permit access to Confidential Information of the other Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.  Each Receiving Party shall be responsible for the compliance of its employees, agents and third-party service providers with the confidentiality obligations set forth herein and shall be liable for any breach thereof. 

3.6       “Confidential Information” means all information concerning a Party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary.  Confidential Information shall include, but not be limited to, the terms of the Agreement (but not the fact of the Agreement’s existence), technology, business plans, techniques, methodologies, pricing, marketing and sales strategies, client information, and other non-public materials and information regarding the other Party’s business operations and the technology and know-how related to the System.  Notwithstanding the foregoing, Confidential Information does not include information that:  (i) is, as of the time of disclosure by a Party, or thereafter becomes, part of the public domain through a source other than the Receiving Party receiving such information; (ii) was lawfully in the possession of the Receiving Party as of the time of disclosure, as evidenced by its written records; (iii) is independently developed by the Receiving Party without reference to the Confidential Information, as evidenced by its written records; (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed; or (v) constitutes PHI, the confidentiality of which shall be governed by the terms of the BAA.  In the event the Receiving Party is required by law or legal process to disclose any Confidential Information, the Receiving Party shall, to the extent permitted by law, provide prompt notice of such to the Disclosing Party so that legal protection for the Confidential Information may be sought.  In the event that a protective order or other remedy is not obtained, each party will furnish only that portion of the Confidential Information that is legally required.  Upon termination of this Agreement, each Party will promptly either return or destroy all tangible Confidential Information as requested by the other Party, retaining only such information as is necessary for recordkeeping in the ordinary course of business.  

4.         Limited Warranty on System.

4.1       Relay warrants that, for a period of one year following implementation, training and acceptance of the System as set forth in the Agreement, the System shall perform in all material respects in accordance with the Documentation and the system levels set forth in the Agreement. The Customer’s exclusive remedies for breach of this warranty are that, following a written report of breach to Relay in writing, Relay shall (a) remedy the nonperformance within a reasonable period of time after such report or (b) at Relay’s option in lieu of remedying performance, refund any prepaid Fees and terminate the Agreement.

4.2       Relay shall not be liable for any expense or damage arising out of any erasure, damage or destruction of files, data or programs.  Customer shall be responsible for making backup copies of data.

4.3       THE EXPRESS LIMITED WARRANTY IN THIS SECTION 7 IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, RELAY DOES NOT WARRANT THAT THE USE OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED.

5.         Copies of Documentation.  Relay shall supply Customer with or give Customer access to digital copies of the software documentation provided by Relay for the System as in effect from time to time (the “Documentation”) for the use of the authorized users of the System.  Any copies of the Documentation made by Customer shall include all of the restrictive and proprietary notices as they appear on copies of the Documentation provided by Relay. 

6.         Assignment.  Neither Party to the Agreement may assign the Agreement or any of its respective rights or obligations under the Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed, provided, however, that Relay may assign its rights and obligations under this Agreement in connection with the sale of all or any significant portion of its assets without the consent of Customer. The Agreement inures to the benefit of and will bind the Parties hereto and their respective permitted successors and assigns.

7.       Waiver.  No term or provision of the Agreement shall be deemed waived, and no breach shall be deemed excused, unless such waiver is in writing and signed by the Party claimed to have waived.

8.       Excusable Delay.  Neither Party shall be liable or responsible to the other Party, nor be deemed to be have defaulted or breached the Agreement for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from any act of God, fire, pandemic, embargo, war or violence, acts of terrorism, or any law, order, or requirement of any governmental agency, or any similar unforeseeable event beyond the applicable Party’s reasonable control (each, an “Event of Force Majeure”).  If an Event of Force Majeure occurs, the Party whose performance is affected (the “FM Impacted Party”) shall promptly give the other Party (the “FM Other Party”) written notice of the Event of Force Majeure and all information related thereto reasonably requested by the FM Other Party, including the anticipated duration of such Event of Force Majeure. If the Event of Force Majeure lasts for more than 180 days, the FM Other Party may immediately terminate the Agreement upon notice to the FM Impacted Party without further liability. Upon such termination Customer shall pay Relay’ outstanding invoices that do not pertain to Relay’s default, and Customer shall have no further payment obligations to Relay under the Agreement; and Relay may require that Customer cease any further use of the System and immediately return any copies of the Documentation to Relay. This Section 11 shall not delay or excuse Customer’s payment obligations.

9.       Governing Law and Jurisdiction.  The Agreement is governed by and construed in all respects in accordance with the laws of the State of Delaware (without regard to conflicts of laws principles).  Any disputes between the Parties (which are not otherwise resolved by the Parties) shall be instituted only in a federal or state courts located in the State of Delaware and the Parties shall submit to the personal jurisdiction of these courts in any such legal action.  Relay and Customer each waive their right to a trial by jury for any disputes between the Parties.

10.       Independent Contractor.  Relay is providing the Services and support under the Agreement as an independent contractor, and its personnel shall not be considered employees or agents of Customer.

11.       Severance and Interpretation.  If any provision of the Agreement is found to be unenforceable, such provision shall be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable and the Agreement shall otherwise remain in full force and effect.  If an ambiguity or question of intent arises, the Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of the Agreement.

12.       Specific Performance.  The Parties acknowledge that a breach of the terms, covenants or conditions contained in the Agreement by any of them may cause irreparable damage to the other for which a remedy at law may not be adequate. In the event of such breach or threatened breach, the non-breaching Party shall be entitled to seek appropriate equitable remedies including specific performance or injunctive relief in any court of competent jurisdiction, restraining the breaching Party from any such threatened or actual violation of the provisions of the Agreement. This provision does not limit a nonbreaching Party’s rights to seek monetary damages in addition to injunctive or other equitable relief.

13.       Entire Agreement.  The Agreement and the Schedules listed therein and herein, and these Terms and Conditions constitute the entire agreement between Relay and Customer with respect to the Services, the System and other subject matter of the Agreement and may only be modified by a written amendment or addendum signed by both Relay and Customer. No employee, agent, or other representative of either Relay or Customer has authority to bind the other with regard to any statement, representation, warranty, or other expression unless it is specifically included within the express terms of the Agreement, or a written addendum signed by both Relay and Customer.  All purchase orders, prior agreements, representations, statements, proposals, negotiations, understandings, and undertakings with respect to the subject matter of the Agreement are superseded by the Agreement.