Terms and Conditions

The Auctus Group LLC Master Services Agreement

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY.  THIS WEBSITE AND ANY OTHER WEBSITES OF PROCODE, INC. D/B/A THE AUCTUS GROUP (THE “PROCODE”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) ARE CONTROLLED BY PROCODE.  THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE.  BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING PROCODE’S MOBILE APPLICATION (THE “APPLICATION”), YOU (“CLIENT” OR “YOU”) REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PROCODE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY PROCODE IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Procode will make a new copy of the Terms of Use Agreement available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application.  We will also update the “Last Updated” date at the top of the Terms of Use Agreement.  Procode may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services.  Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. Services. Procode shall provide to Client the Services described in the ordering page of the Website or Application, as applicable (the “Ordering Page”). Client shall select the Services Client wishes Procode to provide. Procode may update the   In order to access certain features of the Services, you may be required to register an account on the Service (“Account’). In registering an account on the Services, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You are responsible for all activities that occur under your Account.  If you provide any information that is untrue, inaccurate, incomplete or not current, or Procode has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Procode has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You shall not have more than one Account at any given time. 
2. Fees. Client shall pay to Procode the Services and Referral Fees, as applicable, set forth in the Ordering Page (collectively “Fees”) . Procode shall submit, on a monthly basis, invoices to Client. All Fees shall be due and payable in full within thirty ( 30) days of date of invoice. In the event Client fails to timely pay any fees when due, Procode may, in its sole discretion and in addition to any other remedies under this Agreement, following written notice and a ten ( 10) day opportunity to cure the non-payment, suspend Services until the Fees are paid in full.
3. Term. Subject to earlier termination as provided hereunder, the term shall commence on the date Client agrees to this Terms (as set forth in the preamble) and shall expire upon the completion of the Services, unless sooner terminated in accordance with the terms herein ( “Term”) .
4. HIPAA. Procode and Client shall comply with data protection laws or regulations applicable to its respective business operations that are effective during the Term of this Agreement, including, but not limited to the Health Insurance Portability and Accountability Act ( “HIPAA”) of 1996, the HIPAA Privacy Rule, 45 C.F.R. Parts 160 and 164, the HIPAA Security Rule, 45 C.F.R. Parts 160 and 164, and the Health Information Technology for Economic and Clinical Health Act ( collectively, “HIPAA”) . Procode and Client shall execute a Business Associate Agreement ( “BAA”) concerning the collection and processing of Protected Health Information ( “PHI”) to perform the Services, in Procode’s standard form of BAA.
5. Confidentiality. Procode & Client agree that in the course of performing the Services, each party ( “Receiving Party”) may come into the possession of certain processes, methods of operation, trade secrets, and other proprietary and confidential information of the other party ( “Disclosing Party”) ( “Confidential Information”) . Receiving Party agrees that it shall use or disclose Confidential Information solely for purposes of performing its obligations or exercising its rights under this Agreement. Receiving Party agrees to disclose Confidential Information only to those contractors, employees and advisors of the Receiving Party who have a need to know the Confidential Information for the purposes or providing or receiving the Services and who have agreed in writing to treat such information as confidential on terms no less protective than as set forth herein. The parties acknowledge and agree that any Confidential Information disclosed after the Effective Date will be governed by this Agreement and not by the terms of any previously executed non-disclosure agreement ( “NDA”) . With regard to Confidential Information, the obligations in this section will continue for the Term and for a period of three ( 3) years thereafter. With regard to trade secrets, the obligations in this section will continue for so long as such information constitutes a trade secret under applicable law, but in no event less than the Term and for a period of three ( 3) years thereafter.
6. Ownership/Intellectual Property. Client acknowledges and agrees that Procode owns all right, title and interest, including patent, copyright, trade secret, trademark and other proprietary rights in and to the Services and any data, databases, analyses, derivatives, algorithms, methodologies, technologies, processes, outputs or information developed, used or provided by Procode to perform the Services. Procode may collect, combine and identify patterns in Client data, including PHI, and aggregate and deidentify Client data in the performance of its Services for the proper management and administration of Procode and for the maintenance, development and improvement of its Services.
7. Mutual Representations and Warranties. Each party represents and warrants to the other party that ( a) it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution and delivery of this Agreement, and the performance of its obligations hereunder, do not conflict with and will not result in a breach of any other agreement, consents or notices to which it is a party; and ( c) this Agreement constitutes the legally valid and binding obligation of such party enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable law.
8. Services Warranties. Procode warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally recognized and commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications. Provided that Client notifies Procode within ninety (90) days from the date such Services are first provided to Client ( “Warranty Period”) and in the event of any breach of the foregoing warranty, Procode will, at its option and as Client’s sole and exclusive remedy, ( a) re-perform the Services which were not performed as warranted at no additional charge; or (b) in the event Procode is unable to re-perform such Services after exercising commercially reasonable efforts to do so, refund the fees paid to Procode for the non-conforming portion of the Services. Notwithstanding the foregoing, Procode will have no obligation to provide the warranty services described in this Section if: (i) the performance failure is attributable in whole or part to Client’s failure to perform its obligations set forth in this Agreement or Exhibit A; or ( ii) Client or any other person or entity ( other than Procode) has modified the Services.
9. Disclaimer. OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 8, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” PROCODE SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE.
10. Limitations of Liability. ( a) Procode SHALL NOT BE LIABLE FOR ( i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ( INCLUDING LOST INCOME, LOST PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL, DOWNTIME COSTS, LOST OPPORTUNITIES) SUFFERED BY CLIENT OR ANY THIRD-PARTY, EVEN IF Procode HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE; OR ( ii) DEFAULT, FAULT AND/OR FAILURE WHICH IS DUE TO THE NEGLIGENT ACT, ERROR OR OMISSION OF A THIRD PARTY. ( b) THE ENTIRE LIABILITY OF Procode FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE FEES PAID TO Procode IN THE ONE ( 1) YEAR PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE CLAIMS FOR SUCH DAMAGES. ( c) THE LIMITATIONS IN SECTION 10( a) AND ( b) SHALL NOT APPLY TO DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY Procode OR WHERE SUCH LIMITATIONS ARE PROHIBITED BY LAW.
11. Indemnification. ( a) Client Indemnification. Client will defend, indemnify and hold harmless Procode, and its affiliates, members, officers, employees, representatives, agents, attorneys, successors and assigns from and against any and all claims, liabilities, obligations, judgments, causes of action, costs and expenses ( including reasonable attorneys’ fees) arising out of: ( a) any breach of any Client obligations set forth in the Exhibits including but not limited to Client’s failure to provide accurate billing and other information; ( b) violation of any law, statute or regulation applicable to Client’s business; and ( c) any use of the Services in breach of this Agreement or the Exhibits. ( b) Procode Indemnification. Procode will defend, indemnify and hold harmless Client, and its affiliates, members, officers, employees, representatives, agents, attorneys, successors and assigns from and against any and all claims, liabilities, obligations, judgments, causes of action, costs and expenses ( including reasonable attorneys’ fees) arising out of: ( a) any breach of Procode’s obligations set forth in the Agreement or Exhibits; or ( b) violation of any law, statute or regulation applicable to Procode’s business.
12. Termination. ( a) Either party may terminate this Agreement in the event that the party notifies the other party in writing and stating in reasonable detail that the Party is in material breach of this Agreement and such breach is not cured within thirty ( 30) days of receipt of such notice. ( b) Either party may terminate this Agreement in accordance with Section 13.10 ( force majeure) of this Agreement. ( c) In the event that Client fails to pay in full its unpaid and overdue Fees within ten ( 10) days following Client’s receipt of notice from Procode, then, without limitation to any other rights and remedies of Procode hereunder, Procode shall have the right ( in its sole discretion) to terminate this Agreement or the Services associated with the unpaid Fees upon written notice to Client. Termination of this Agreement will terminate all Services.
13. Miscellaneous
    • 13.1 – Independent Contractor. It is understood that Procode and Client are independent contractors engaged in the operation of their own representative business. Neither party is, or is considered to be, the agent, joint venturer or employee of the other party for any purposes whatsoever. Neither party has the authority to enter into contracts or assume any obligations for or on behalf of the other party or to make any warranties or representations for on behalf of the other party. Nothing contained in this Agreement shall be construed to establish a third party beneficiary agreement with either a Client’s patient or a Client’s staff physician. Each party shall be solely responsible for compliance with all state and federal laws pertaining to income taxes, employment taxes, income withholding, unemployment compensation contributions and other employment-related statutes regarding the party’s respective employees, agents and servants.
    • 13.2 – Assignment. This Agreement is not assignable in whole or in part by any party without the prior written consent of the other party. Notwithstanding the foregoing, Procode may freely assign this Agreement to an affiliate, successor, parent corporation or purchaser in connection with any corporate merger, reorganization or transfer or sale of assets to which this agreement relates without obtaining the consent of Client. This Agreement shall be binding on the parties and on their permitted successors and assigns.
    • 13.3 – Waiver. No waiver of any breach or failure by any party to enforce any of the terms or conditions of this Agreement at any time will, in any manner, limit or waive such party’s right hereafter to enforce and to compel strict compliance with every term and condition hereof.
    • 13.4 – Entire Agreement. This Agreement and its Exhibits constitute the entire agreement between Procode and Client with respect to the subject matter hereof and supersedes any prior agreements.
    • 13.5 – Governing Law. This Agreement will be governed by the laws of the State of Illinois without giving effect to its conflicts of laws provisions.
    • 13.6 – Dispute Resolution. Each of Procode and Client hereby: ( 1) submits to the jurisdiction of any state or federal court sitting in Cook County, Illinois in any action or proceeding arising out of or relating to the terms of this Agreement; ( 2) agrees that all claims in respect of such action or proceeding shall be heard or determined in any such court; and ( 3) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, except as necessary to support enforcement of a judgment. Each of Procode and Client hereby waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Procode shall be entitled to its costs in enforcing any portion of this agreement, including reasonable attorneys’ fees.
    • 13.7 – Savings Clause. If a court of competent jurisdiction holds that any provision is invalid or unenforceable in any respect, such invalidity, or unenforceability shall not affect any other provisions, and this Agreement shall be construed as if it had never contained such invalid or unenforceable provisions.
    • 13.8 – Notices. Where Procode requires that you provide an email address, you are responsible for providing Procode with a valid and current email address.  In the event that the email address you provide to Procode is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Procode’s dispatch of the email containing such notice will nonetheless constitute effective notice.  You may give notice to Procode at the following address: Procode: 201 West Lake Street STE 42055, Chicago IL 60606.  Such notice shall be deemed given when received by Procode by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    • 13.9 – Anti-Kickback Statute. The parties hereto acknowledge their mutual intent and agreement that all amounts paid and/or payable hereunder have been determined by the parties through good faith, arm’s length negotiations, and reflect the fair market value of the services provided hereunder and that no amount paid or payable hereunder, nor any amount paid or payable by any of the parties hereto to any third party, is intended to be, nor shall it be construed or interpreted as an inducement or payment, direct or indirect, for referral of a resident for the furnishing, or arranging for the furnishing, of any item or service, or in return for purchasing, leasing, ordering, or arranging for, or recommending purchasing, leasing or ordering any good, service or item covered by any governmental or private payor. The parties also acknowledge their mutual intent and agreement that the terms and provisions of this Agreement shall, and shall be interpreted, construed and enforced as complying in all respects with the federal Anti-Kickback Statute, set forth at 42 U.S.C. 1320a-7b.
    • 13.10 – Force Majeure. Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by any act of any federal, state or local governmental authority, judicial action, act of God, riot, strike, pandemic, lockout, fire, flood, lightning, utility or communications failure, natural disaster, computer hacker, cyber attack, war, terrorism, or other similar cause beyond its reasonable control. Each party shall promptly provide written notice of any such condition of which it becomes aware, and shall use all reasonable means to resume full performance of its obligations under this Agreement as soon as commercially possible. Either party may terminate this Agreement without liability to the other due to such condition if such force majeure continues for a period of thirty ( 30) days or more.
    • 13.11 – Marketing. Procode may reference that Client is a customer in its marketing materials and on its website.
    • 13.12 – Third-Party Application Access.  With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function.  Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
    • 13.13 – Accessing and Downloading the Application from the Apple App Store.  The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
      • You acknowledge and agree that (i) this Agreement is concluded between you and Procode only, and not Apple, and (ii) Procode, not Apple, is solely responsible for the App Store Sourced Application and content thereof.  Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
      • You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
      • In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application.  As between Procode and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Procode. You and acknowledge that, as between Procode and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
      • You and Procode acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Procode and Apple, Procode, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
      • You and Procode acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
      • Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

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