TERMS & CONDITIONS
CARECAP ASSOCIATION LLC ONLINE AGREEMENT
This agreement is made and entered into by and between CareCap Association LLC (“CareCap”) and the organization agreeing to these terms (“Participant”) and is governed by the CareCap’s Standard Terms and Conditions. Terms defined therein will have the same meanings when used in this Order Form.
1. Services. Participant is licensing access to CareCap’s online account management platform (the “Services”). Participant Customer Support will be provided at no charge during Normal Support Hours. Additional fees may be assessed at a rate of $150 per hour for excessive or after-hours service requests subject to prior written notice.
2. Term. This Order form will be in effect from signature or electronic agreement until the termination or expiration of the Agreement pursuant to the provisions therein.
3. Account Debtor Payment Amount and Transaction Process. As agent for the Participant, CareCap collects the Payment Amount from the Account Debtor and allocates as set forth below.
1. Base Payment. The Base Payment is the original amount financed by the Participant, owed on an e-invoice, or paid using Pay Now in the CareCap portal. The Base Payment minus a four point nine (4.9%) payment processing fee is paid to an account designated and managed by Participant (“Participant Deposit Account”) within 12 days of receipt.
2. Management Fee. The Management Fee is the amount collected from the Account Debtor on Participant Accounts and paid to CareCap. This fee is a percentage of the amount financed on a payment plan, calculated on a daily basis equivalent to 1% monthly. Management Fee does not apply to e-Invoices or Pay Now.
3. Late Payment Fees. The $35 fee that CareCap collects from the Account Debtor when Account Debtor is greater than three (3) days late on a payment. Assessed when both payment methods fail automatic withdrawal. This fee is paid to CareCap.
Fees are subject to change. Fee changes will only affect new Payment Plans, e-Invoices and Pay Now transactions originated after the fee change. Late fees may be waived at CareCap’s discretion. For purposes of clarity, both Participant (you) and Account Debtor (your customer) fees are outlined in the table below.
CARECAP ASSOCIATION LLC
STANDARD TERMS & CONDITIONS
These Standard Terms and Conditions govern the provision of Services (as defined in Section 1) described in one or more Order Forms entered into in accordance with the process described in Section 1.1. These Standard Terms and Conditions and each such Order Form are referred to herein as the “Agreement”. Capitalized terms not defined herein shall have the meanings set forth in the applicable Order Form. CareCap and Participant agree as follows:
1. Hosted Services. CareCap will provide Participant access to its hosted software-based services as identified in a mutually executed Order Form (the “Services”) in accordance with the terms and conditions of the Agreement. Order Forms hereunder will be executed by each party and will reference these Standard Terms and Conditions. Terms used in this Agreement that are defined in an Order Form shall have the same meaning as set forth in the Order Form. If any term of an Order Form conflicts with this Agreement, the Order Form will prevail, but solely to the extent of the conflict.
2. License Grant. Subject to the terms and conditions of this Agreement and Participant’s compliance therewith, CareCap grants to Participant a non-exclusive, n on-transferable, non-sublicensable right and license to use the Services during the Term of this Agreement. Participant may access and use the Services solely for its internal business purposes.
3. Accounts Receivable Management Program. Participant’s use of the Services will facilitate management of designated Participant accounts receivable (each, an “Account”). Such management will include collection of funds from the person or entity that owes Participant on the Account (“Account Debtor”) and other functions related to the collection of fees associated with Accounts.
4. Use Restrictions. Participant will not directly or indirectly (a) reverse engineer, decompile or disassemble the Services or CareCap Technology (defined in Section 5.1); (b) use, or permit use of, the Services or CareCap Technology to reverse engineer or otherwise derive any features of the Services, CareCap Technology, or proprietary or confidential information or processes of CareCap, (c) rent, sell, or lease the Services, the CareCap Technology, or access thereto; (d) copy, modify, or distribute any portion of the Services; (e) use or otherwise exploit the Services or CareCap Technology to develop or offer a product or service that competes with the Services; or (f) other than as permitted expressly in Section 2.3 allow any third party to use the Services.
5. Participant Responsibilities.
1. Telecommunications and Internet Services. Participant acknowledges and agrees that use of the Services is dependent upon access to telecommunications and Internet services. Participant shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. CareCap shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
2. Compliance with Laws. Participant is responsible for compliance with this Agreement by its personnel, including compliance with laws and regulations applicable to establishing an Account with any Account Debtor (including, without limitation, the Equal Credit Opportunity Act, Truth in Lending Act, Fair Credit Reporting Act, State Retail Installment Sales Acts, State Consumer Loan Acts, and State Usury Laws).
3. User Account Security. Participant is responsible for maintaining the security and confidentiality of all user account passwords and any and all activities associated with Participant’s use of the Services.
2. Agency Designation; Collection Agency.
1. Agency Designation. Pursuant to this Agreement, Participant appoints CareCap as its agent for the purposes of facilitating management of Accounts and CareCap consents to and accepts such appointment. CareCap will act solely under the control of and pursuant to instructions received by it from Participant. CareCap is under no obligation to make payments on Accounts, except that CareCap will remit to Participant the Payment Amounts received from Account Debtors on Participant’s behalf as and to the extent required by this Agreement.
2. Collection Agent. The Parties acknowledge that the agency appointment and Services contemplated under this Agreement may result in CareCap’s designation as a “collection agent” pursuant to applicable local law. Participant acknowledges that provision of the Services is subject to any and all applicable regulatory restrictions.
3. Permitted Third Party Use. The Services include a “patient portal” through which Account Debtors can upload payment information and check the status of their Account with Participant. Participant may permit its Account Debtors to access and use the Services provided that Participant remains responsible for the Account Debtors’ compliance with all limitations and restrictions on Participant’s use of the Services set forth in this Agreement, and will be liable for conduct of the Account Debtors to the same extent as if Participant directly engaged in such conduct.
3. Fees and Payment
1. Fee Payment. Participant will pay CareCap the fees and other amounts specified in each Order Form in accordance with the payment terms set forth therein.
2. Interest. Any undisputed amount not paid to CareCap when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid. Payment of interest does not cure or excuse any payment default and is without prejudice to any other rights or remedies available to CareCap. In the event of any action by CareCap to collect any amount not paid when due, Participant will pay or reimburse CareCap’s reasonable costs of collection, including reasonable attorneys’ fees and court costs. CareCap may accept any check or payment in any amount without prejudice to its right to recover the balance of the amount due or pursue any other remedy.
3. Taxes. Unless otherwise specified in the applicable Order Form, all amounts payable to CareCap under the Agreement do not include any taxes, customs, duties, fees, or other charges assessed or imposed by any governmental authority other than taxes imposed on CareCap’s net income. Participant agrees to indemnify CareCap against any sales or use taxes that may be assessed on the Services by government agencies subsequent to the periods in which such services were rendered. Notwithstanding the allocation of the Fee Payment set forth in the Order Form, Participant acknowledges that applicable law may impose sales or use tax to the entire Fee Payment and agrees to accept CareCap’s determination of sales or use tax applicability.
4. Term, Termination, and Suspension
1. Term. This Agreement shall remain in force for a period of one (1) year from the Effective Date (the “Initial Term”). This Agreement will renew automatically for successive periods of one (1) year until terminated by either party in accordance with the terms hereof (the “Renewal Term(s)” and, together with the Initial Term, the “Term”) unless either party provides the other with notice of termination at least ninety (90) days prior to the end of any term; provided that, for any termination by Participant, the Participant Reserve Account is in good standing.
2. Suspension. CareCap may suspend access to any Services or Account for any of the following reasons: (i) CareCap reasonably believes that a Service or Account is being used by Participant in violation of this Agreement; (ii) Participant fails to cooperate with CareCap’s reasonable investigation of any suspected violation of law or this Agreement; (iii) CareCap believes there is a threat to the security or technical integrity of a Service or Account; (iv) CareCap is required by law, or a regulatory or government body to suspend access to a Service or Account, (v) there is another event for which CareCap reasonably believes that suspension is necessary to protect CareCap systems or CareCap’s other customers; or (vi) any amount due under this Agreement is not received by CareCap within fifteen (15) days after it was due.
3. Termination for Material Breach or Default. If either party commits a material breach or default in the performance of any obligation under this Agreement or any Order Form, the other party may give the defaulting party written notice of the material breach or default and of its intent to terminate the Agreement or Order Form if the breach or default is not cured within thirty (30) days following the defaulting party’s receipt of such notice. Participant’s failure to maintain a positive balance in the Participant Reserve Account will constitute a breach of this Agreement.
4. Termination for Convenience. Either party may terminate this Agreement at any time for any reason upon ninety (90) days prior written notice.
5. Effects of Termination. If the Agreement expires or is terminated for any reason noted above, (a) all liabilities accrued thereunder prior to the effective date of the termination will survive; (b) CareCap may continue to collect Payment Amounts and retain Fee Payments with regard to Accounts which have been designated by Participant prior to the date of such termination for the duration of the collection and payment of each such Account; and (c) Sections 3.3, 4.4, 5, 6.1, 6.4, 7, 9, 10, and 11 of this Agreement will survive.
5. Ownership and Intellectual Property
1. Ownership; Reservation of Rights. The technology, software code, trademarks, trade names and other intellectual property and materials used by CareCap to host and provide the Services, and all improvements to, and all modifications and derivative works of, the foregoing (collectively, the “CareCap Technology”) involve valuable intellectual property and proprietary rights of CareCap and its licensors. No title to or ownership of the Services or CareCap Technology, any associated intellectual property or proprietary rights, or any other rights in or to any other processes, methods, tools, ideas, techniques, or concepts of CareCap or its licensors, whether conceived or invented in connection with the Services or otherwise (“CareCap IP”) is transferred to Participant or any third party under the Agreement. CareCap and its licensors reserve all right, title, and interest (including all intellectual property and other proprietary rights) in and to the Services, CareCap Technology, and CareCap IP. No implied rights or licenses are granted by CareCap or any third party in the Agreement.
2. Participant Ownership of Account Data. Subject to the terms of this Agreement, all data submitted to CareCap or uploaded to the Services by Participant or by the Account Debtor (“Account Data”) is owned by Participant. Participant grants CareCap a non-exclusive license to use, distribute, and reproduce the Account Data for purposes of providing the Services. This license will extend to third parties operating on CareCap’s behalf (e.g., technology partners, service providers, and independent contractors). Participant is responsible for the content, accuracy, and integrity of all Account Data. Nothing in this Section 5.2 prohibits CareCap from utilizing the Account Data to track and analyze Participant account metrics for its internal business purposes.
6. Warranties and Disclaimer
1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement and each Order Form has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it; (b) no third-party authorization or approval is required in connection with such party’s execution, delivery, or performance of either this Agreement or any such Order Form; and (c) the execution of this Agreement or any Order Form does not violate the terms o of any other agreement to which it is a party or by which it otherwise is bound.
2. CareCap Intellectual Property Warranty. CareCap represents and warrants that, to its knowledge, it has all rights necessary to provide the Services under the applicable Order Form. This warranty will not apply in the event of any of the following (each, a “Warranty Exclusion Condition”): (a) the Services or CareCap Technology are modified or reconfigured by anyone other than CareCap without CareCap’s express written consent, (b) the Services or CareCap Technology are used in combination with any other products or services without express written consent of CareCap, or (c) the Services or CareCap Technology are used other than in accordance with the Agreement.
3. Participant Intellectual Property and Privacy Warranty. Participant represents and warrants that its provision of data to CareCap or use of data with the Services, including all Account Data, does not violate the intellectual property or privacy rights of any third party.
4. Warranty Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CARECAP MAKES NO WARRANTY THAT THE SERVICES OR ITEMS PROVIDED UNDER ANY ORDER FORM ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. CARECAP DOES NOT GUARANTEE ANY PAYMENT OF ANY ACCOUNT BY ANY ACCOUNT DEBTOR AND CARECAP DOES NOT ASSUME PAYMENT RESPONSIBILITY OF ANY ACCOUNT.
7. Limitations of Liability
1. No Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT OR SUCH PARTY’S ITEMS OR SERVICES PROVIDED UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS, LOST OR CORRUPTED DATA, OR INJURY TO BUSINESS REPUTATION.
2. Cap on Liability. NEITHER PARTY’S TOTAL LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY ITEMS OR SERVICES PROVIDED BY A PARTY UNDER ANY ORDER FORM, WILL EXCEED THE TOTAL COMPENSATION PAID BY PARTICIPANT TO CARECAP UNDER THIS AGREEMENT.
3. Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CARECAP TO PARTICIPANT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8. Service Levels and Support
1. Service Levels. The Services will be available at least 99% of the time measured on a monthly basis, excluding scheduled downtime. CareCap will conduct all routine maintenance during scheduled maintenance windows. CareCap will give Participant at least forty-eight (48) hours prior written notice of any scheduled downtime.
2. Support. Participant will have access to telephone support for the Services between 8:00 AM and 6:00 PM Pacific Standard Time Monday through Friday excluding regular holidays (“Normal Support Hours”). Additional fees may apply to interruptions in the Services that originate with Participant’s equipment or service providers or for service requests outside of Normal Support Hours.
3. Fixes, Updates, and Upgrades. From time to time, and without prior notice, CareCap may implement minor problem fixes to the Services. CareCap will provide Participant with at least seven (7) days prior written notice for updates to the Services that don’t involve substantial changes to functionality. No more than once every six (6) months, CareCap may offer an upgrade version of the Services that is intended to modify or replace existing functionality or design. CareCap shall not be required to provide Services other than through its most recent upgrade. Participant is required to accept all problem fixes, updates, and upgrades and these will be provided to Participant at no extra charge.
9. Confidential Information
1. Confidential Information. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to the other party and is reasonably regarded as confidential in nature. Confidential Information includes the Account Data and the CareCap IP, notwithstanding any failure to mark such materials as “Confidential,” “Proprietary,” or otherwise. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with the Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
2. Restricted Use and Non-Disclosure. Each party will protect the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. Additionally, each party will not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with the Agreement, and the third party’s access to and use of such Confidential is subject to restrictions on use and disclosure no less protective of the disclosing party than those set forth in the Agreement. Notwithstanding anything to the contrary in this Section 10, however, each party may disclose Confidential Information: (a) as required by applicable law, regulation, court order, or subpoena, provided, however, that in the case of disclosures required by court order or subpoena, the receiving party will give the disclosing party written notice prior to making any such disclosure, and an opportunity to contest and/or seek a protective order with respect thereto; (b) to auditors or regulators; (c) to the professional advisors of either party, provided that such advisors are obligated to maintain the confidentiality of the information they receive; and (d) to the contractors of either party who are providing services to such party, who have a need access to such Confidential Information to perform such services, and who are subject to binding confidentiality obligations.
3. Return of Confidential Information. Upon termination or expiration of the Agreement, or a party’s earlier request, each party will deliver to the other party (or if r requested by the other party, destroy) all Confidential Information in such party’s possession or control.
10. HIPAA DECLARATIONS
1. General. The parties acknowledge that from time to time Participant’s protected health information (as defined in 45 CFR 160.103; hereinafter referred to as “PHI”) will be placed on CareCap’s system. When this occurs, CareCap may be a business associate of Participant under HIPAA if Participant is a covered entity. This Section 10 applies to the extent that Participant is a covered entity and CareCap is a business associate. Terms used in this Section 10 have the meanings given them in the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E, as modified from time to time (the “Privacy Rule”), and the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR Part 164, Subpart C, as modified from time to time (the “Security Rule”).
2. Permitted Purposes
1. CareCap may use or disclose Participant’s PHI for purposes reasonably related to providing the Services to Participant, provided that such use or disclosure would not violate the Privacy Rule, and then only to the minimum extent necessary to accomplish the purpose of the use or disclosure.
2. CareCap may use or disclose Participant’s PHI as reasonably necessary for CareCap’s proper management and administration and to carry out CareCap’s legal responsibilities, so long as any such disclosure is required by law or CareCap obtains written assurances from the recipient that the information will be held confidentially and used or further disclosed only as required by law or for the purposes for which it was disclosed to the recipient and that the recipient will notify CareCap of any instances of which the recipient becomes aware in which the confidentiality of the information has been breached.
3. CareCap Duties. In performing its duties hereunder, CareCap will:
1. Not use or further disclose PHI other than as permitted or required by this Agreement or as required by law.
2. Implement and use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Agreement.
3. Comply with the applicable requirements of the Security Rule.
4. Report to Participant any use or disclosure of PHI not provided for by this Agreement (including breaches of unsecured PHI as required by 45 CFR 164.410) or any security incident of which CareCap becomes aware.
5. Ensure that CareCap’s subcontractors that create, receive, maintain, or transmit electronic PHI on behalf of CareCap agree to the same restrictions and conditions that apply to CareCap with respect to such information, including compliance with the applicable requirements of the Security Rule.
6. Make available PHI in a designated record set maintained by CareCap within the time frame and in the manner reasonably requested by Participant to allow Participant to comply with 45 CFR 164.524 (relating to individuals’ access to PHI).
7. Make available PHI for amendment and incorporate any amendments to PHI within the time frame and in the manner reasonably requested by Participant to allow Participant to comply with 45 CFR 164.526.
8. Make available information required to provide an accounting of disclosures within the time frame and in the manner reasonably requested by Participant to allow Participant to comply with 45 CFR 164.528.
9. Make CareCap’s internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by CareCap on behalf of, Participant available to the Secretary of the United States Department of Health and Human Services (or his or her designee) for purposes of determining Participant’s compliance with the Privacy Rule.
10. Upon termination of this Agreement, if feasible, return to Participant (or its designee) or destroy all PHI received from, or created or received by CareCap on behalf of, Participant that CareCap still maintains in any form and retain no copies of such information or, if such return or destruction is not feasible, extend the protections of this Section 10 to the PHI and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible.
11. Take any other action which, from time to time, CareCap believes is reasonably required, permitted, or authorized due to changes in HIPAA or other applicable law or regulation, and/or to modify its duties as set forth above in this Section 10 to reflect ongoing revised provisions of HIPAA or other applicable laws or regulations.
4. Participant Duties. In performing its duties hereunder, Participant will:
1. Notify CareCap of any limitation(s) in Participant’s notice of privacy practices under 45 CFR 164.520, to the extent that such limitation may affect CareCap’s use or disclosure of PHI.
2. Notify CareCap of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect CareCap’s use or disclosure of PHI.
3. Notify CareCap of any restriction on the use or disclosure of PHI that Participant has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect CareCap’s use or disclosure of PHI.
4. Not request CareCap to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by Participant, except management, administration, and legal responsibilities of CareCap, if applicable.
5. Termination for Breach. Participant may immediately terminate this Agreement without penalty to Participant or recourse to CareCap if Participant determines that CareCap has violated a material term of this Section 10 and, after ten (10) days written notice, CareCap is not able to cure such breach.
1. Entire Agreement. This Agreement, including all Order Forms and all exhibits, addenda, and schedules hereto, constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.
2. Relationship of Parties. This Agreement will not be deemed to create a partnership, joint venture, employment or any other relationship between CareCap and Participant, except that Participant is appointing CareCap its agent for the limited purposes of managing the Accounts and collecting payments from Account Debtors.
3. Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.
4. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of both parties. The waiver by either party of any breach of any term of this Agreement does not waive any other breach.
5. Successors and Assigns. This Agreement, and any and all rights, duties and obligations hereunder, shall not be assigned, transferred, delegated or sublicensed by Participant without the prior written consent of the CareCap. Any attempt by Participant without such permission to assign, transfer, delegate or sublicense any rights, duties or obligations that arise under this Agreement shall be void. Subject to the foregoing and except as otherwise provided herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.
6. No Third Party Beneficiaries. This Agreement is for the benefit of, and will be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third party beneficiary of this Agreement.
7. Disputes. If a dispute arises in connection with this Agreement, the parties shall attempt to resolve it through good faith negotiation. If the dispute cannot be resolved, either party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Within fifteen (15) days after such written notification, the CEOs of each party agree to meet in person in Seattle, Washington for one (1) day and consider dispute resolution alternatives, other than litigation. If an alternative method of dispute resolution is not agreed upon within ten (10) days after such meeting, either party may resort to such legal remedies as may be available to them.
8. Governing Law; Jurisdiction; Fees. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Washington, U.S.A. without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts of King County, Washington, in connection with any action arising out of or in connection to this Agreement. In any proceeding arising out of or based upon this Agreement the prevailing party in any such action shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
9. Interpretation. Participant has had the opportunity to review and to propose amendments to this Agreement, and the parties have had an equal opportunity to participate in the drafting of the Agreement. No ambiguity will be construed against a party based upon a claim that it drafted the ambiguous language. The headings at the beginning of the sections in this Agreement are for identification and reference purposes only and must not be used to construe or interpret the Agreement.
10. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under the Agreement, on account of any delay or failure to perform as required by the Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such party’s reasonable control (including, without limitation, any act or failure to act by the other party).
11. Notices. Any notice required or permitted under the Agreement will, unless otherwise specified in any Order Form, be effective only if in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at its address set forth below and with appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.11. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. If notice is given to CareCap for any reason, a copy will be sent to Davis Wright Tremaine, 1201 Third Avenue, Suite 2200, Seattle, WA 98101, Attention: Joseph P. Whitford.