Please take a moment to familiarize yourself with these forms following the appropriate choice below. The information required to complete our sign up is fairly extensive as each account is custom built and may require some additional thought as you answer the questions. As such, you may want to make some notes prior to filling out the questionnaire. Information entered and not submitted will not be saved.
Additionally, you may want to review our Service Agreement and/or Business Associate Agreement (applicable to HIPAA related entities only) prior to proceeding as they are an integral part of engaging our services. You will be able to see the full, completed text prior to submission, but in the event that you want to review them prior to completing your form you can find them here:
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Set Up Form Only, All Types
Business Associate Agreement
This Business Associate Agreement (“BAA”), effective ___________________, (“Effective Date”), is entered into by and between Towne Answering Service, Inc. (the “Business Associate”) and __________________________________________________________, with an address at _________________________________________________________ (the “Covered Entity”) (each a “Party” and collectively the “Parties”).
The Business Associate is a Telephone Answering Service and the Covered Entity is a ___________________________. The Parties have a prior oral or written agreement (the “Service Agreement”) which governs the business relationship between these parties and under which the Business Associate regularly may use and/or disclose Protected Health Information (“PHI”) in its performance of the Services there under. Both Parties are committed to complying with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) and all pertinent regulations issued by the Department of Health and Human Services (“HHS”). This BAA sets forth the terms and conditions pursuant to which PHI that is provided to, or provided, created, received, maintained, or transmitted by the Business Associate from or on behalf of the Covered Entity, will be handled between the Business Associate and the Covered Entity and with third parties during the term of their agreement and after its termination. The Parties agrees as follows:
1. PERMITTED USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION
1.1 Services. Pursuant to the Service Agreement, Business Associate provides Services (“Services”) for the Covered Entity that involve the use and disclosure of PHI. Except as otherwise specified herein, the Business Associate may make any and all uses of PHI necessary to perform its obligations under the Service Agreement. All other uses not authorized by this BAA are prohibited. Moreover, Business Associate may disclose PHI for the purposes authorized by this BAA only, (i) to its employees, subcontractors and agents, in accordance with Section 2.1(e), (ii) as directed by the Covered Entity, or (iii) as otherwise permitted by the terms of this BAA including, but not limited to, Section 1.2(b) below.
1.2 Business Activities of the Business Associate. Unless otherwise limited herein, the Business Associate may:
a. use the PHI in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate provided that such uses are permitted under state and federal confidentiality laws.
b. disclose the PHI in its possession to third parties, including but not limited to subcontractors of the Business Associate, for the purpose of its proper management and administration or to fulfill any present or future legal responsibilities of the Business Associate, provided that the Business Associate represents to the Covered Entity, in writing, that (i) the disclosures are required by law, as provided for in 45 C.F.R. § 164.502 and (ii) the Business Associate has received from the third party written assurances regarding its confidential handling of such PHI as required under 45 C.F.R. § 164.504(e)(4) and (iii) and the third party agrees to the same restrictions and conditions that apply through this BAA to Business Associate with respect to PHI.
1.3 Additional Activities of Business Associate. In addition to using the PHI to perform the Services set forth in Section 1.1 of this BAA, the Business Associate may:
a. aggregate the PHI in its possession with the PHI of other covered entities that the Business Associate has in its possession through its capacity as a business associate to said other covered entities provided that the purpose of such aggregation is to provide the Covered Entity with data analyses relating to the Health Care Operations of the Covered Entity. Under no circumstances may the Business Associate disclose PHI of one covered entity to another covered entity absent the explicit authorization of the Covered Entity.
b. de-identify any and all PHI provided that the de-identification conforms to the requirements of 45 C.F.R. § 164.514(b), and further provided that the Covered Entity maintains the documentation required by 45 C.F.R. § 164.514(b) which may be in the form of a written assurance from the Business Associate. Pursuant to 45 C.F.R. § 164.502(d)(2), de-identified information does not constitute PHI and is not subject to the terms of this BAA.
2. RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO PROTECTED HEALTH INFORMATION
2.1 Responsibilities of the Business Associate. With regard to its use and/or disclosure of PHI, the Business Associate hereby agrees to do the following:
a. use and/or disclose the PHI only as permitted or required by this BAA or as otherwise required by law.
b. report to the designated Privacy Officer and/or Security Officer of the Covered Entity, in writing, any use and/or disclosure of the PHI that is not permitted or required by this BAA of which Business Associate becomes aware within 30 days of the Business Associate’s discovery of such unauthorized use and/or disclosure. To the extent possible, the Business Associate should provide the Covered Entity with the identification of each individual affected by the breach as well as any information required to be provided by the Covered Entity in its notification to affected individuals. Business Associate shall comply with all regulations issued by HHS and applicable state agencies regarding breach notification to Covered Entities. Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
c. establish procedures for a mutually satisfactory resolution, regarding any deleterious effects from any improper use and/or disclosure of PHI that the Business Associate reports to the Covered Entity.
d. use commercially reasonable efforts to maintain the security of the PHI and to prevent unauthorized use and/or disclosure of such PHI.
e. require all of its subcontractors and agents that receive or use, or have access to, PHI under this BAA to agree, in writing, to adhere to the same restrictions and conditions on the use and/or disclosure of PHI that apply to the Business Associate pursuant to section 2 of this BAA, as well as to have the subcontractors and agents require of their subcontractors and agents who receive, use, or have access to PHI the same restrictions and conditions as agreed to by them with the Business Associate.
f. make available all internal practices, records, books, agreements, policies, procedures and PHI relating to the use and/or disclosure of PHI received from, or created or received by Business Associate, on behalf of Covered Entity, available to Covered Entity or to the Secretary of HHS in a prompt and commercially reasonable manner for purposes of determining (i) the Business Associate’s compliance with the terms of this BAA and (ii) compliance by the Business Associate and the Covered Entity with all applicable statutory provisions and regulations of and under HIPAA and the HITECH Act, subject to attorney-client and other applicable legal privileges.
g. within 30 days of receiving a written request from the Covered Entity, to provide to the Covered Entity or Individual such information as is requested by the Covered Entity to permit the Covered Entity to respond to a request by an individual for an accounting of the disclosures of the individual’s PHI in accordance with 45 C.F.R. § 164.528.
h. subject to Section 4.5 below, return to the Covered Entity or destroy, within 60 days of the termination of this BAA, the PHI in its possession and retain no copies. This includes, but is not limited to; all media, media backups, and any other files (i.e. sound or .wav files) and/or paper which contains PHI.
i. with respect to PHI and/or Electronic Protected Health Information (“EPHI”), as that term is used in 45 CFR, Part 164, Subpart C, implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the EPHI that it creates, receives, maintains, or transmits on behalf of the Covered Entity and ensure that any agent, including a sub-contractor, to whom it provides EPHI agrees to implement reasonable and appropriate safeguards to protect EPHI.
j. at the request of the Covered Entity, provide the Covered Entity (or any designate of the Covered Entity) access to PHI in a Designated Record Set in a prompt and commercially reasonable manner in order to meet the requirements under 45 CFR § 164.524.
k. make any amendment(s) to protected PHI in a Designated Record Set that the Covered Entity directs or agrees pursuant to 45 CFR § 164.526 at the request of the Covered Entity or an Individual in a prompt and commercially reasonable manner.
2.2 Responsibilities of the Covered Entity. With regard to the use and/or disclosure of PHI by the Business Associate, the Covered Entity hereby agrees:
a. to inform the Business Associate of any changes in the form of notice of privacy practices (the “Notice”) that the Covered Entity provides to individuals pursuant to 45 C.F.R. §164.520, and provide the Business Associate a copy of the Notice currently in use.
b. to inform the Business Associate of any changes in, or withdrawal of, the consent or authorization provided to the Covered Entity by individuals pursuant to 45 C.F.R. §164.506 or §164.508.
c. to inform the Business Associate of any opt-outs exercised by any individual from marketing and/or fundraising activities of the Covered Entity pursuant to 45 C.F.R. § 164.514(e).
d. to notify the Business Associate, in writing and in a timely manner, of any arrangements permitted or required of the Covered Entity under 45 C.F.R. part 160 and 164 that may impact in any manner the use and/or disclosure of PHI by the Business Associate under this BAA, including, but not limited to, restrictions on use and/or disclosure of PHI as provided for in 45 C.F.R. § 164.522 agreed to by the Covered Entity.
e. that Business Associate may make any use and/or disclosure of PHI permitted under 45 C.F.R. § 164.512 except uses or disclosure for research are not permitted without prior approval by the Covered Entity.
f. with respect to EPHI, Covered Entity acknowledges that it must provide appropriate security for EPHI, such as encryption and secure wireless communications, and absolves Business Associate of any liability for breaches of EPHI security caused by reception or transmission devices under the control of Covered Entity.
3. REPRESENTATIONS AND WARRANTIES
3.1 Mutual Representations and Warranties of the Parties.
Each Party represents and warrants to the other Party:
a. that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized or licensed, it has the full power to enter into this BAA and to perform its obligations hereunder, and that the performance by it of its obligations under this BAA have been duly authorized by all necessary corporate or other actions and will not violate any provision of any license, corporate charter or bylaws.
b. that neither the execution of this BAA, nor its performance hereunder, will directly or indirectly violate or interfere with the terms of another agreement to which it is a party, or give any governmental entity the right to suspend, terminate, or modify any of its governmental authorizations or assets required for its performance hereunder. Each Party represents and warrants to the other Party that it will not enter into any agreement the execution and/or performance of which would violate or interfere with this BAA.
c. that it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any claim for the filing of an involuntary petition.
d. that all of its employees, agents, representatives and members of its workforce, whose services may be used to fulfill obligations under this BAA are or shall be appropriately informed of the terms of this BAA and are under legal obligation to each Party, respectively, by contract or otherwise, sufficient to enable each Party to fully comply with all provisions of this BAA including, without limitation, the requirement that modifications or limitations that the Covered Entity has agreed to adhere to with regards to the use and disclosure of PHI of any individual that materially affects and/or limits the uses and disclosures that are otherwise permitted under the Standard will be communicated to the Business Associate, in writing, and in a timely fashion.
e. that it will reasonably cooperate with the other Party in the performance of the mutual obligations under this BAA.
f. that neither the Party, nor its shareholders, members, directors, officers, agents, employees or members of its workforce have been excluded or served a notice of exclusion or have been served with a notice of proposed exclusion, or have committed any acts which are cause for exclusion, from participation in, or had any sanctions, or civil or criminal penalties imposed under, any federal or state program. Each Party further agrees to notify the other Party immediately after the Party becomes aware that any of the foregoing representation and warranties may be inaccurate or may become incorrect.
4. TERMS AND TERMINATION
4.1 Term. This BAA shall become effective on the Effective Date and shall continue in effect until all obligations of the Parties have been met, unless terminated as provided in this Section 4. In addition, certain provisions and requirements of this BAA shall survive its expiration or other termination in accordance with Section 7.3 herein.
4.2 Termination by the Covered Entity. As provided for under 45 C.F.R. § 164.504(e)(2)(iii), the Covered Entity may terminate this BAA and any related agreements if the Covered Entity makes the determination that the Business Associate has breached a material term of this BAA. The Covered Entity must: (i) provide the Business Associate with 30 day’s written notice of the existence of an alleged material breach; and (ii) afford the Business Associate an opportunity to cure said alleged material breach upon mutually agreeable terms. Nonetheless, in the event that mutually agreeable terms cannot be achieved within 30 days, Business Associate must cure said breach to the satisfaction of the Covered Entity within 30 days. Failure to cure in the manner set forth in this paragraph is grounds for the immediate termination of this BAA.
4.3 Termination by Business Associate. If the Business Associate makes the determination that a material condition of performance has changed under this BAA, or that the Covered Entity has breached a material term of this BAA, Business Associate may provide 30 days notice of its intention to terminate this BAA. Business Associate agrees, however, to cooperate with Covered Entity to find a mutually satisfactory resolution to the matter prior to terminating, and further agrees, that notwithstanding this provision, it shall not terminate this BAA so long as the BAA is in effect.
4.4 Automatic Termination. This BAA will automatically terminate without any further action of the Parties upon the termination or expiration of a previous oral or written agreement between the Parties.
4.5 Effect of Termination. Upon the event of termination pursuant to this Section 4, Business Associate agrees to return or destroy all PHI pursuant to 45 C.F.R. § 164.504(e)(2)(I), if it is feasible to do so. Prior to doing so, the Business Associate further agrees to recover any PHI in the possession of its subcontractors or agents. If it is not feasible for the Business Associate to return or destroy said PHI, the Business Associate will notify the Covered Entity in writing. Said notification shall include: (i) a statement that the Business Associate has determined that it is infeasible to return or destroy the PHI in its possession, and (ii) the specific reasons for such determination, which reasons the Parties agree may include, but are not limited to, backup media. Business Associate further agrees to extend any and all protections, limitations and restrictions contained in this BAA to the Business Associate’s use and/or disclosure of any PHI retained after the termination of this BAA, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the PHI infeasible.
5.1 Confidentiality Obligations. In the course of performing under this BAA, each Party may receive, be exposed to or acquire the Confidential Information including but not limited to, all information, data, reports, records, summaries, tables and studies, whether written or oral, fixed in hard copy or contained in any computer data base or computer readable form, as well as any information identified as confidential (“Confidential Information”) of the other Party. For purposes of this BAA, “Confidential Information” shall include PHI, the security of which is the subject of this BAA and is provided for elsewhere. The Parties including their employees, agents or representatives (i) shall not disclose to any third party the Confidential Information of the other Party except as otherwise permitted by this BAA, (ii) only permit use of such Confidential Information by employees, agents and representatives having a need to know in connection with performance under this BAA, and (iii) advise each of their employees, agents, and representatives of their obligations to keep such Confidential Information confidential. Notwithstanding anything to the contrary herein, each Party shall be free to use, for its own business purposes, any ideas, suggestions, concepts, know-how or techniques contained in information received from each other that directly relates to the performance under this BAA. This provision shall not apply to Confidential Information: (a) after it becomes publicly available through no fault of either Party; (b) which is later publicly released by either Party in writing; (c) which is lawfully obtained from third parties without restriction; or (d) which can be shown to be previously known or developed by either Party independently of the other Party.
6.1 Indemnification. The Parties agree to indemnify, defend and hold harmless each other and each other’s respective employees, directors, officers, subcontractors, agents or other members of its workforce, each of the foregoing hereinafter referred to as “indemnified party,” against all actual and direct losses suffered by the indemnified party and all liability to third parties arising from or in connection with any breach of this BAA or of any warranty hereunder or from any negligence or wrongful acts or omissions, including failure to perform its obligations under the Privacy Regulation, by the indemnifying party or its employees, directors, officers, subcontractors, agents or other members of its workforce. The Parties’ obligation to indemnify any indemnified party shall survive the expiration or termination of this BAA for any reason.
7.1 Covered Entity. For purposes of this BAA, Covered Entity shall include all entities covered by the joint notice of information practices (or privacy notice), which includes hospitals, laboratories, imaging centers, nursing facilities, and medical offices.
7.2 Business Associate. For purposes of this BAA, Business Associate shall include the named Business Associate herein. However, in the event that the Business Associate is otherwise a covered entity under the Privacy and/or Security Regulation, that entity may appropriately designate a health care component of the entity, pursuant to 45 C.F.R. § 164.504(a), as the Business Associate for purposes of this BAA.
7.3 Survival. The respective rights and obligations of Business Associate and Covered Entity under the provisions of Sections 4.5, 6.1, 7.5, and Section 2.1 solely with respect to PHI Business Associate retains in accordance with Section 4.5, because it is not feasible to return or destroy such PHI, shall survive termination of this BAC indefinitely.
7.4 Amendments; Waiver. This BAC may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
7.5 No Third Party Beneficiaries. Nothing express or implied in this BAC is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
7.6 Notices. Any notices to be given hereunder to a Party shall be made via U.S. Mail or express courier to such Party’s address given below, and/or (other than for the delivery of fees) via facsimile to the facsimile telephone numbers listed below.
If to Business Associate, to: with a copy (which shall not constitute Notice) to:
Towne Answering Service Towne Answering Service
208 N. Main Street 208 N. Main Street
Souderton, PA 18964 Souderton, PA 18964
Attention: Deborah Crown Attention: Charles Crown
Fax: 215-723-9330 Fax: 215-723-9330
If to Covered Entity, to: with a copy (which shall not constitute Notice) to:
Attention: Privacy Officer Attention: ______________________
Fax: ____________________ Fax: ___________________________
Each Party named above may change its address and that of its representative for notice by the giving of notice thereof in the manner hereinabove provided.
7.7 Counterparts; Facsimiles. This BAA may be executed in any number of counterparts, each of which shall be deemed an original. Facsimile copies hereof shall be deemed to be originals.
7.8 Disputes. If any controversy, dispute, or claim arises between the Parties with respect to this BAA, the Parties shall be required to meet and seek a negotiated resolution within 30 days after written notice is given by the complaining Party. If no resolution is reached within said 30 day period, the Parties hereby agree to participate in non-binding mediation before a mediator to be jointly selected equally paid by the Parties. Such mediation shall take place within 60 days after the expiration of the 30 day initial negotiation period, unless the Parties agree to an extension. If the mediation does not result in a resolution, then the Parties further agree to enter upon binding arbitration, pursuant to the rules of the American Arbitration Association.
7.9 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
7.10 This BAA does not impose any additional duties, obligations, or responsibilities on any of the parties hereto, other than those set forth in the Service Agreement and/or those imposed by the applicable statutes and regulations promulgated there under.
7.11 Choice of Law. This BAA and the rights and the obligations of the Parties hereunder shall be governed by and construed under the laws of the State of Pennsylvania, without regard to applicable conflict of laws principles.
7.12 Interpretation. Any ambiguity in this BAA shall be resolved in favor of a meaning that permits Covered Entity to comply with the HIPAA Rules and any applicable state confidentiality laws. The provisions of this BAA shall prevail over the provisions of any other agreement that exists between the Parties that may conflict with, or appear inconsistent with, any provision of this BAA or the HIPAA Rules.
8.1 Designated Record Set. Designated Record Set shall have the meaning set out in its definition at 45 C.F.R. § 164.501, as such provision is currently drafted and as it is subsequently updated, amended, or revised.
8.2 Health Care Operations. Health Care Operations shall have the meaning set out in its definition at 45 C.F.R. § 164.501, as such provision is currently drafted and as it is subsequently updated, amended or revised.
8.3 Privacy Officer. Privacy Officer shall have the meaning as set out in its definition at 45 C.F.R. § 164.530 (a)(1) as such provision is currently drafted and as it is subsequently updated, amended or revised.
8.4 Security Officer/ Law Enforcement Official. Security Officer/Law Enforcement Official shall have the meaning as set out in its definition at 45 C.F.R § 164.103 as such provision is currently drafted and as it is subsequently updated, amended or revised.
8.5 Protected Health Information. PHI shall have the meaning as set out in its definition at 45 C.F.R. § 160.103, as such provision is currently drafted and as it is subsequently updated, amended or revised.
8.6 HIPAA Rules. HIPAA Rules shall mean the Privacy, Security, Breach Notification, and Enforcement Rules of 45 CFR Part 160 and Part 164, as amended.
8.7 Miscellaneous Definitions: The following terms shall have the same meaning as those terms are defined and used in the HIPAA Rules: Breach, Data Aggregation, Disclosure, Individual, Required By Law, Secretary, Security Incident, Subcontractor, and Use.
IN WITNESS WHEREOF, each of the undersigned has caused this BAA to be duly executed in its name and on its behalf effective as of _____________________
Telephone Answering Services Agreement
This AGREEMENT is by and between Towne Answering Service, Inc (hereinafter referred to as “TOWNE”),
located at 208 N. Main St., Souderton, PA and,
(hereinafter referred to as “Customer”)
WHEREAS, TOWNE is in the answering service business and Customer desires answering service, the parties agree as follows:
SERVICES: During the term of this agreement and provided Customer is not in default of any of the terms of this agreement, TOWNE will provide Telephone Answering Services (“TA Services”) to the Customer, which will consist of the receiving and answering of telephone calls, texts or emails for Customer, and responding to or forwarding of these electronic communications in accordance with those reasonable written instructions supplied by the Customer to TOWNE. TOWNE shall rely entirely on the instructions supplied by the Customer, including, but not limited to, telephone numbers, names, hours, or other items to be utilized in the performance of TA Services. Customer agrees to furnish TOWNE with a written list of names and telephone numbers of those persons Customer wishes to receive notice of communications; any changes thereto are required to be in writing to TOWNE, of which changes shall be effectuated by the end of the next business day of receipt thereof.
SERVICE CHARGES: Customer agrees to pay TOWNE:
(a) An initial sum, as calculated from attached Exhibit “A”, plus all applicable tax, for the set up of the account and Pro-rated first period’s (standard 28 day period) service.
For the convenience of the parties and so long as there is no default in payments, Customer may make the payments as provided in subsection (b) of this paragraph.
(b) A sum, as calculated from attached Exhibit “A”, plus all applicable tax, per billing period, payable within twenty-one (21) days of invoice, for service for the term of this Agreement commencing on the first day of the billing period next succeeding the date hereof, and continuing every twenty-eight (28) days thereafter, all payments being due within twenty-one (21) days of invoice date. TOWNE reserves the right to change the rates set out above as additional requested services are provided to the Customer. If Customer disputes any portion of any invoice, Customer is required to notify TOWNE in writing, sent by certified mail, return receipt requested, within 15 days of the date of the disputed invoice, otherwise Customer acknowledges it has waived its right to contest. Should any dispute relate to only a portion of the invoice, the Customer shall be required to make payment of the undisputed balance within the time period set forth above. If the Customer fails to make payment of the invoice within the time period set forth above, TOWNE shall have the right, at its sole discretion, to suspend or terminate all TA Services, upon prior written notice to the Customer. TA Services which are suspended or terminated for nonpayment shall be subject to a reconnection charge of $50.00. The Customer shall be responsible for payment of all TA Services up to the time of suspension or termination and for payment of a late charge of one and one half percent (1 1/2 %) per month on any unpaid overdue balance.
NOTE: Although TOWNE is willing to provide additional coverage and/or services as needed, they reserve the right to review the account periodically for the purpose of renegotiating fees for additional services or volume.
TERM OF AGREEMENT: The Term of this Agreement shall automatically renew month to month under the same terms and condtions, unless either party provides written notice to the other by certified mail, return receipt requested, of their intention not to renew the Agreement at least 30 days prior to the expiration of any term. TOWNE shall be permitted, from time to time, with prior notice given, to increase the charge, and Customer agrees to pay such increase as invoiced.
ILLEGAL USE: The Customer represents and warrants that the TA Services will not be used for any illegal purpose. If TOWNE becomes aware that the TA Services are being used for any illegal purpose, TOWNE shall have the right to suspend or terminate all TA Services IMMEDIATELY, without any prior written or oral notice to the Customer. The Customer shall be responsible for payment of all TA Services up to the time of suspension or termination.
COMMUNICATIONS: Customer acknowledges that signals which are transmitted over telephone lines, wire, air waves or other modes of communication pass through communication networks wholly beyond the control of TOWNE and are not maintained by TOWNE and, therefore, TOWNE shall not be responsible for any failure which prevents transmission signals from reaching the communications center, the intended recipient and/or damages arising therefrom.
INTERRUPTION OF SERVICE: TOWNE shall not be liable for any damage or loss sustained by Customer as a result of delay or for interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes outside of TOWNE’s control. It is Customer’s sole responsibility to test the operation of the TA Services and to notify TOWNE if Customer experiences loss or interruption of the TA Services. Upon notice from Customer, TOWNE shall service the communication systems to the best of its ability and provided Customer is not in default of the terms of this agreement restore Customer’s TA Services. In the event Customer complies with the terms of this agreement and TOWNE fails to restore Customer’s answering service within 36 hours after notice is given, Customer agrees to send notice that the service is in need of repair to TOWNE, in writing, by certified or registered mail, return receipt requested and Customer shall not be responsible for payments due while the answering service remains inoperable.
LIMITATION OF LIABILITY: Customer agrees that should there arise any liability on the part of TOWNE as a result of TOWNE’S negligent performance to any degree, failure to perform any of TOWNE’S obligations, equipment failure or strict products liability, that TOWNE’S liability shall be limited to the sum of six times the monthly payment at time liability is fixed or the sum of $250.00 whichever is the lesser amount. If Customer wishes to increase TOWNE’S maximum amount of TOWNE’S limitation of liability, Customer may, as a matter of right, at any time, by entering into a supplemental contract, obtain a higher limit by paying an annual payment consonant with TOWNE’S increased liability. This shall not be construed as insurance coverage.
EXCULPATORY CLAUSE: Customer agrees that TOWNE is not required to respond in any way to any telephone call or message other than to communicate the call to Customer, as specified above; that TOWNE is not an insurer and no insurance coverage is offered herein. The TA Service is designed to facilitate communication, though TOWNE cannot guarantee that such communication will reach Customer. TOWNE is not assuming liability, and, therefore shall not be liable to Customer for any loss, personal injury, property damage consequential or otherwise sustained by Customer as a result of any cause, whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by TOWNE’s negligent performance, failure to perform any obligation or strict products liability. Customer releases TOWNE from any claims for contribution, indemnity or subrogation.
INDEMNITY/WAIVER OF SUBROGATION RIGHTS/ASSIGNMENTS: Customer agrees to and shall indemnify and hold harmless TOWNE, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third-parties or by Customer, including reasonable attorneys’ fees and losses, asserted against and alleged to be caused by TOWNE’s performance, negligence or failure to perform any obligation under this agreement. Parties agree that there are no third party beneficiaries of this contract. Customer on its behalf and any insurance carrier waives any right of subrogation Customer’s insurance carrier may otherwise have against TOWNE or TOWNE’s subcontractors arising out of this agreement or the relation of the parties hereto. Customer shall not be permitted to assign this agreement without written consent of TOWNE. TOWNE shall have the right to assign this contract and shall be relieved of any obligations herein upon such assignment. TOWNE shall be permitted to assign this contract and upon such assignment shall have no further obligation hereunder.
OWNERSHIP AND PROPERTY RIGHTS: All technologies, software, hardware, operating applications, procedures, scripts, telephone numbers, or other materials of any nature or type prepared, furnished, or utilized by TOWNE, other than those items furnished by the Customer to TOWNE, shall be considered the sole and exclusive property of TOWNE and shall be retained by TOWNE upon the termination of this Agreement.
REPORTS AND STATISTICAL INFORMATION: TOWNE may be requested by the Customer from time to time to furnish reports or statistical information to the Customer regarding aspects of the TA Services being performed. The cost to prepare and furnish such reports and statistical information is not included within the amount specified above as charges for the TA Services. Therefore, TOWNE will advise the Customer of the cost to be charged for the reports and statistical information and obtain the consent of the Customer before preparing and providing same to the Customer. TOWNE does not make any guarantees, warranties, or representations as to the accuracy of the reports and statistical information so provided.
SUCCESSORS AND ASSIGNS: This Agreement is binding on the parties hereto and their respective successors and assigns.
NOTICES: Any notices required to be given by the terms of this Agreement shall be sent by Certified Mail, return receipt requested, at the address set forth above in this Agreement. Alternatively, notice can be given by fax or e-mail, if the party to whom notice is being given has previously provided such fax number or e-mail address to the other party and has confirmed in writing that the fax number of e-mail address can be used for notice purposes under this Agreement.
EQUIPMENT: It is understood that TOWNE owns none of the equipment in the Resellers Customer’s premises and has no responsibility for the condition or functioning thereof and that maintenance, repair, testing, service, replacement or insurance of the equipment are not the obligation or responsibility of TOWNE.
NO WARRANTIES OR REPRESENTATIONS: CUSTOMER’S EXCLUSIVE REMEDY: Customer acknowledges that TOWNE has not supplied or furnished any equipment and that this transaction does not constitute a sale of goods and that TOWNE is providing a service described in this agreement and limited to the terms of this agreement. TOWNE has made no representations or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Customer’s exclusive remedy for TOWNE’s default hereunder is to require TOWNE to refund Customer’s service charges for the period that TOWNE failed to provide its services.
SEVERABILITY: No term or provision of this Agreement that is determined by a court of Competent Jurisdiction to be invalid or unenforceable shall affect the validity or enforceability of the remaining terms and provisions of this Agreement. Any term found to be invalid or unenforceable shall be deemed as severable from the remainder of the Agreement.
INDEPENDENT CONTRACTOR: Nothing contained in this Agreement shall be construed or interpreted by the parties hereto, or by any third party, as creating a relationship of principal and agent, partnership, joint venture, or any other relationship between TOWNE and the Customer, other than that of independent contractors contracting for the provision and acceptance of Services. Each party will be responsible for hiring, supervising and compensating its own employees and for providing benefits to and withholding taxes for such employees.
NON-SOLICITATION: The parties agree that:
(1) Neither TOWNE, nor any of its related entities, will solicit for employment for itself any employee of Customer while Customer is a client of Towne Answering Service, nor will TOWNE call on, solicit, or take away for themselves any person or entity who is a client of Customer.
(2) Customer will not solicit for employment for itself, or any other entity, or employ, in any capacity, any employee of TOWNE assigned by TOWNE to perform any service for or on behalf of Customer for a period of two years after TOWNE has completed providing service to Customer. In the event of Customer’s violation of this provision, in addition to injunctive relief, TOWNE shall recover from Customer an amount equal to such employee’s salary based upon the average three months preceding employee’s termination of employment with TOWNE, times twelve, together with TOWNE’s counsel and expert witness fees.
DISPUTE RESOLUTION: In the event of a dispute under this Agreement, the parties shall, as their sole remedy, be required to follow the following steps:
1. The parties, through executive officers with authority to resolve disputes, shall meet and seek to negotiate a resolution of the dispute within thirty (30) days of the giving of written notice of a dispute to the other party.
2. If negotiations in step one above are unsuccessful in effecting a resolution, the parties shall be required to engage in non-binding mediation, to be held within sixty (60) days of the conclusion of the thirty day negotiation period. Such mediation shall be before an independent mediator jointly by the parties. If the parties cannot come to agreement on the identity of the mediator, the selection shall be pursuant to the mediation rules of the American Arbitration Association.
3. Should step two above prove unsuccessful in effecting a resolution, the parties waive trial by jury in any action between them. In any action commenced by TOWNE against Customer, Customer shall not be permitted to interpose any counterclaim. Any action by Customer against TOWNE must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against TOWNE must be based on the provisions of this agreement. Any other action that Customer may have or bring against TOWNE in respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement. Customer submits to the jurisdiction of Pennsylvania and agrees that any litigation between the parties must be commenced and maintained exclusively in Montgomery County, Pennsylvania, where TOWNE’s principal place of business is located.
TOWNE’S RIGHT TO SUBCONTRACT SERVICES: Customer agrees that TOWNE is authorized and permitted to subcontract any services to be provided by TOWNE to third parties who may be independent of TOWNE, and that TOWNE shall not be liable for any loss or damage sustained by Customer by reason of any cause whatsoever caused by the negligence of third parties, and that Customer appoints TOWNE to act as Customer’s agent with respect to such third parties, except that TOWNE shall not obligate Customer to make any payments to such third parties. Customer acknowledges that this agreement, and particularly those paragraphs relating to TOWNE’s disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and indemnification, inure to the benefit of and are applicable to any assignee, subcontractors and communication centers of TOWNE.
GOVERNING LAW: This Agreement shall be deemed to have been executed in the State of Pennsylvania and shall be interpreted, construed and enforced in accordance with and governed by the laws of the State of Pennsylvania.
ENTIRE AGREEMENT: This Agreement represents the entire agreement of the parties to This Agreement and will govern all negotiations, representations, discussions or agreements, prior to or subsequent to this agreement, between the parties. No statements, warranties, or representations of any kind that are not contained in this Agreement shall in any way bind the parties. This Agreement can only be changed, modified or cancelled by a writing signed by all of the parties to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the ______ day of________________, 20____.