Shoshana Technologies, Inc.
Rev. 3/1/2023
INTRODUCTION
This document describes the Terms of Service between Customer and Shoshana Technologies, Inc. (“Shoshana”) concerning the use of Shoshana’s Rosemark System™ (“Rosemark”). Rosemark includes software, database and user documentation.
1. TERMS OF SERVICE
1.1 ROLES AND RESPONSIBILITIES
1.1.1 Set Up Services
As soon as is mutually convenient following the acceptance of these Terms of Service and the payment of the license fee, Shoshana will work with one or more representatives of Customer to arrange for Customer to have access to Rosemark via the internet. Shoshana will provide a single telephone orientation session for the purpose of introducing Customer representatives to the use of Rosemark.
1.1.2 Training and Support
Shoshana will provide direct support and training for the use of Rosemark via telephone, internet and e-mail during the hours of 8 a.m. to 6 p.m. Eastern U.S. time on regular business days, with additional coverage available on a case by case basis. Off-hours support is provided by on-call support personnel but cannot be guaranteed to be available at any given time. Customers who desire extraordinary or on-site support may contract with Shoshana separately for such services.
Standard training and support are provided to customers whose accounts are in good standing only. Training and support services will be suspended if Customer’s account with Shoshana becomes delinquent. The length, frequency and nature of the training and support provided are entirely at Shoshana’s discretion. Training and support beyond what is included in Customer’s subscription may be negotiated separately.
1.1.3 Missed Appointments
Shoshana reserves the right to charge for missed appointments if 24 hours’ advance notice is not given.
1.1.4 Upgrades and Enhancements
Shoshana constantly strives to improve the design and implementation of Rosemark and welcomes suggestions and feedback to that end.
Shoshana will determine the development priority of any feature or set of features to be added to Rosemark, based on feedback from all of its customers as well as other strategic concerns. Shoshana will provide updates and feature enhancements in a timely, efficient manner, with little or no interruption of the workflow of any of its customers. Most updates and enhancements are included free of charge. Shoshana reserves the right to offer additional features, products and services as paid add-ons beyond the scope of this Agreement. Customizations outside of Shoshana’s development queue may be contracted separately.
1.1.5 Equipment and Third-Party Software
Customer has full responsibility for ensuring that the hardware and third-party software used in conjunction with Rosemark is appropriate and functioning properly. The minimum specifications for the hardware and software required to operate Rosemark are available on request. Shoshana may revise those specifications as it develops enhancements and improvements to Rosemark.
Shoshana will provide support to Customer’s office personnel in resolving any technical issues relating to Rosemark and its interactions with third-party systems. In the interest of mutual success, at its own discretion, Shoshana may also help with other technical issues that may arise that have no direct relationship to Rosemark, with charges for such additional services, as mutually agreed. Assistance with the use of third-party software is provided on an “as-is” basis and does not constitute a warranty of any kind with regard to the fitness or use of that software for any particular purpose.
1.1.6 Internet Connectivity and Security Software
In order for Rosemark to function properly, Customer must maintain an Internet connection that Rosemark can access at all times during operation. Customer acknowledges that the quality of the network connection will have a direct effect on the performance of Rosemark.
Firewalls, antivirus, antimalware and other Internet security tools may cause problems with connectivity that are selective in nature (meaning that some Internet activity is allowed while other activity is not). Shoshana staff may assist with such problems but Shoshana does not assume any responsibility for their resolution.
1.1.7 Electronic Visit Verification (EVV)
Rosemark provides multiple means of verifying caregivers’ time, attendance and performance in the field, collectively termed Electronic Visit Verification (“EVV”). These include use of the Caregiver Mobile app and telephony (data entry through telephone prompting). Use of EVV is optional, though recommended for most effective agency management. Note that, in some circumstances, use of EVV may be mandated by local or state authorities. Check with them to see if you are affected.
Rosemark’s EVV services are priced per event (clock in/clock out, check in) and are billed on the next invoice after the month is complete.
Because all telephony systems depend on third-party telephone companies, Shoshana cannot guarantee availability of any telephone number at any particular time. Customer recognizes that Shoshana is not responsible for any lapse in functionality due to reasons beyond Shoshana’s control.
The use of a “local” telephone number may have different constraints in certain locations. Shoshana cannot warrant that the number will be reachable from any specific calling location as a “local” number. In some areas, the entire ten-digit number must be used (including the area code), regardless of whether that number is considered “local” from that location. Long-distance charges are entirely under the control of third-party telephone companies, not Shoshana.
1.1.8 Enhanced Communication
Rosemark includes a number of tools that enable communications via email and texting. Messages sent via SMS text are charged per segment (160 characters). SMS texts may not exceed 10 segments (1600 characters) in length. Messages sent via email carry no additional cost and have no character limit. The use of SMS texting is completely optional and can be controlled on a per-person basis within Rosemark by Customer staff.
In order to remain compliant with provisions of the Telephone Consumers Protection Act (TCPA), Customer must ensure that caregivers have opted in to receive SMS text messages prior to use.
1.1.9 Telephony-Only Accounts
For customers who are using Rosemark’s telephony services without scheduling. Customers using Rosemark Telephony for EVV without also including scheduling understand that there are some features that will be partially or completely unavailable in this mode. Many operations, such as payroll and billing, rely on scheduled and verified shifts in order to function. At any point, telephony-only accounts may be upgraded to the full Rosemark System by mutual agreement.
1.2 LICENSE FEE
In consideration of the Rosemark license granted by Shoshana and the services to be performed by Shoshana for Customer under these Terms of Service, Customer will pay Shoshana the license fee and other charges stated in the License Agreement. In addition to those license fees, Customer will (a) pay Shoshana for training and customization work, as provided in a separate agreement between the parties, and (b) reimburse Shoshana for any reasonable out-of-pocket expenses incurred by Shoshana in providing on-site training and support, including without limitation, travel, lodging, meals, courier charges and extraordinary telecommunication costs (collectively, “Reimbursable Expenses”). License fees are payable in advance on the first day of the applicable payment period and fees for services are payable no later than the date on which the services are performed. Reimbursable Expenses will be due and payable upon invoice by Shoshana. Any fees or other charges that are not paid within 10 days after the invoice date will bear interest at the rate of 1% per month, or if lower, the maximum rate allowed by law. Delinquent payments may result in suspension of access to Rosemark until the Customer’s account has been paid in full.
1.3 PAYMENT SCHEDULE
Payments are due on the first of each month and may be made by automatic bank debit (ACH), check, online through the invoice, or by credit card (Visa, MasterCard, American Express or Discover).
A fee of $10 will automatically be charged for credit card or ACH transactions that are declined.
1.4 DELINQUENT PAYMENTS
Payments received 30 days past the due date will be subject to a minimum $35 or 1% additional charge for each month (12% APR), and support and edits to your database will be suspended until account is paid. In the case that Customer wants to request an extension of the payment date, they must submit it by phone or email before the end of the 30-day grace period or user support may be suspended. If the account becomes 60 days late, access to Rosemark will be removed until the balance is paid or an agreed payment plan is in place. Accounts that refuse to pay after 90 days will be sent to collections.
1.5 Beta Program Use
From time to time, Shoshana may make available to Customer new services and features that are not yet available to other Rosemark customers, for testing, evaluation, feedback and other purposes. Any customer who participates in such a beta program does so with the understanding that such services and features have not been fully tested and vetted and may not perform as expected. Shoshana disclaims all liability for any damages that may result to Customer from its use of Beta program versions.
1.6 Caregiver Mobile App
Rosemark provides a Caregiver Mobile App (Android and iOS) that caregivers may use to interact with their schedule, clock in and out, record tasks, and other functions.
Most of the time, caregivers should find the Caregiver Mobile App easy to use and accurate. However, Shoshana Technologies cannot be responsible for individual problematic instances. Variations in mobile devices, environment, end-user comfort and capability with their technology, individual settings and other factors may adversely affect performance.
Some features of the Caregiver Mobile App are based on GPS services and on other external, third-party providers. This information might not be accurate, due to limitations of GPS technology, mapping services, etc. In particular, accurate location of a particular device is based on a comparison between the reported coordinates (longitude and latitude) and the location of a particular address that is found in mapping services (primarily Mapquest and Google). If the map location is incorrect, this will prevent Rosemark from establishing an accurate assessment of the caregiver’s location relative to that address. Rosemark provides a way to adjust this to be accurate by entering correct coordinates manually. It is incumbent on the agency to monitor and manage this accuracy.
Individual user’s equipment (mobile device) and environmental factors may also have a negative effect on performance. Because of the vast variety of models, capabilities and user settings on these devices, Shoshana Technologies cannot guarantee that the Caregiver Mobile App will work properly on any specific mobile device.
Shoshana Technologies works very hard to ensure that all components within its control are working properly at all times. It is important to have redundancy and cross-checking built into your business processes. By using this App you agree that Shoshana Technologies cannot be held responsible for any direct or indirect damages that may result from improper use or system failures.
1.7 Term and Termination
1.7.1 Termination for Cause
Either party may terminate this Agreement effective upon written notice to the other party, if the other party breaches any of its obligations under this Agreement.
1.7.2 Customer Cancellation
Customer may choose to cancel at any time with 30 days’ written notice. Any fees owed in accordance with the License Terms must be paid in full before cancellation is complete. Outstanding uncollected funds may be sent to a collection service, if necessary.
In the case of cancellation, read-only access to historical data can be arranged by paying a monthly maintenance fee. In the absence of such an arrangement, Shoshana will charge an hourly fee to retrieve archived data, on request.
1.7.3 Effect of Termination
Upon termination of this Agreement, Customer will immediately discontinue all access to and use of Rosemark and uninstall any System components. Backing up data via reports and exports from within Rosemark is Customer’s responsibility. Requests for assistance with this process will incur additional costs. Shoshana shall not be liable for any damages resulting from a termination of this Agreement as provided for herein. The termination of this Agreement shall not affect any claim for payment arising prior to such termination.
1.8 CHANGES OF OWNERSHIP
Customer may assign its rights and obligations under its Rosemark license only to a third party that acquires substantially all of the assets and business of Customer. Any other attempted assignment without the prior written consent of Shoshana Technologies, Inc. is void. That assignment will become effective when the Assignee first has access to and begins to use Rosemark. Customer will be responsible for all license fees and other costs associated with its use of Rosemark up to the point that the Assignee begins to use Rosemark in its business operation. In order to assure security of the data in the Rosemark and to optimize the transition of control over the Rosemark System, Customer should give Shoshana Technologies written notice of a pending change in control as far in advance of the effective date of that change as possible and in no event less than 10 days beforehand. Shoshana Technologies will assist Customer and the transferee of the Rosemark System with managing the change of control over the Rosemark database promptly after receiving that notice.
Any services that are provided outside of this Agreement will be negotiated and invoiced separately.
1.9 LIMIT OF LIABILITY
Customer acknowledges that proper provision of care to clients, pay to caregivers and compliance with applicable laws is solely and exclusively Customer’s responsibility. Rosemark is a set of tools provided as an aid to Customer in accomplishing business tasks; in no way does Rosemark replace diligence and attention to detail where matters of personal and financial well-being or legal compliance are concerned. Customer will not rely solely and exclusively on Rosemark to ensure proper fulfillment of care tasks, proper payment of overtime, travel time or mileage, or any other critical or mandated requirement of operating a home care business.
Shoshana Technologies provides software support services primarily for the purpose of helping Customer understand how to use the Rosemark software tools. Support services are not intended to replace the advice of legal professionals nor Customer’s responsibility to input data correctly and to operate its business in compliance with all applicable laws. Customer is strongly advised to seek appropriate professional assistance in understanding legal and regulatory issues that may affect their business. Customer is solely responsible for compliance with local, state and federal regulations, including (but not limited to) HIPAA and privacy laws. Customer assumes full responsibility for using Rosemark appropriately, and Customer understands and agrees that neither Shoshana Technologies nor any of its employees are responsible or liable for any claim, loss or damage resulting from its use.
Shoshana warrants that the Rosemark System will function in accordance with its user documentation. Customer shall promptly notify Shoshana of any failure of the Rosemark System to function in accordance with its user documentation. As Customer’s sole remedy for any such failure, Shoshana will modify the Rosemark System or its user documentation to the extent required to cause the foregoing warranty to be correct. Shoshana makes no other warranties regarding the Rosemark System. Shoshana specifically disclaims all other warranties, express or implied, including without limitation, the implied warranties of merchantability and fitness for a particular purpose.
Neither party will be liable to the other for any incidental, consequential, special, indirect, punitive or exemplary damages under any theory of liability that result from the performance or breach by that party of its obligations under these Terms of Service or the use of Rosemark. In all events, Shoshana will not be liable to Customer for damages that exceed the total amount paid by Customer to Shoshana for use of Rosemark during the 12 months preceding the date on which the claim for damages arose. In all events, a party must make a claim for damages within one year after the occurrence of the event giving rise to that claim, or that claim will be forever barred.
1.10 Limit of Intended Use
Customer may not reverse engineer, decompile or otherwise attempt to analyze or decipher any software code in connection with Rosemark or any other aspect of Shoshana’s technology.
Customer shall not access and/or use any portion of Rosemark in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the operation of Rosemark or any networks or security systems of Shoshana. Customer may not permit third parties (other than transferees of substantially all of Customer’s assets and business) to have access to or to use Rosemark for any reason.
1.11 Confidentiality
In the course of working together, each party will have contact with sensitive critical business and operational information of the other. Each party is responsible to maintain the confidentiality of that information during the course of the relationship and for a reasonable period subsequently. Shoshana’s responsibilities as a Business Associate under HIPAA (Health Insurance Portability and Accountability) regulations are covered under a separate Business Associate Agreement.
1.12 Publications
Shoshana may publish or report to third parties aggregated, anonymized information drawn from its records of Rosemark usage, for the purpose of promoting Shoshana’s business, demonstrating compliance with applicable laws and industry standards, or meeting government or contract mandated reporting obligations. No such publications will include the names of Rosemark licensees or information defined in applicable law or regulations as Protected Health Information or Personal Identification Information. Shoshana will at all times fully comply with all federal and state patient confidentiality requirements.
1.13 Data Security
Shoshana takes the protection of customer data very seriously. Rosemark uses the following components to ensure the security of your data.
Server Security – Rosemark’s dedicated servers are located in secure data facilities with physical site security, 24/7/365 monitoring, access control, redundant HVAC, full firewall, power and fire protection. Rosemark servers are not accessible to anyone other than Shoshana Technologies technical staff and are not used for anything other than Rosemark production server applications. They run the Linux operating system, which is inherently more secure than Windows servers.
SSH Password Protection – Rosemark’s servers are protected from unauthorized access with Secure Shell (SSH). All users must know the account number of the agency and have a valid, active username and password in order to access the agency’s data. Changes to access to the data can only be made by an identified, authorized owner of the account, or one or more persons who have been authorized to request such changes by the owner. Your username and password enable you to access this secure system, and it is of utmost importance that you protect your username and password from unauthorized use and disclosure. Further, each Rosemark account database is entirely separate from any other; access to one’s account in no way gives access to any other account.
Data Encryption – SSL RSA with RC4 256-bit SHA encryption using FIPS 140-2 validated OpenSSL-EVP. RSA is the public/private key exchange at the beginning of the conversation; all subsequent data traffic is fully encrypted with RC4 256-bit encryption.
Backups – database transactions are mirrored in real-time to at least 3 other production servers, located in different regions of the country. This transaction-by-transaction redundancy essentially eliminates the possibility of data loss. Nightly disk backups provide archive data snapshots which are completely separate from production servers and which are backed up redundantly.
Network and cyber security services provided by Trapp Technology (ArmorPoint SOC and remediation) and LTI Information Technology (network infrastructure and systems).
Cyber Crime/Information Risk insurance provided by CNA through Mason-McBride, Inc. This includes coverage for network security, privacy liability and breach management expenses, in excess of $1,000,000.
Forensic Discovery – forensic discovery of transactions by user login is available for at least the past 90 days. Shoshana may, at its own discretion, charge separately for such services. Shoshana reserves the right to limit or deny investigations without what it deems to reasonable cause.
1.14 TITLE
Shoshana retains title to Rosemark and to all enhancements and improvements to Rosemark regardless of which party conceives or develops such enhancements or improvements. This Agreement gives Customer the right to use Rosemark on the stated terms. Customer agrees that no other rights are granted hereunder except as expressly set forth in this Agreement.
1.15 CHANGES TO TERMS OF SERVICE
Shoshana reserves the right to change these terms of service as needed to reflect the manner in which Shoshana conducts business with its customers. Shoshana will give Customer written notice of any such change at least 30 days prior to the date the change(s) become effective, via email sent to the email address(es) Shoshana has on file for Customer. Customer may terminate its use of Rosemark, effective as of the end of business on the day before the effective date of any such changes, by delivering to Shoshana written notice of termination, by email or otherwise, prior to the effective date of the announced change(s). Customer’s continued use of Rosemark after the effective date of announced changes constitutes acceptance of those changes.
1.16 GENERAL
1.16.1 Severability
Customer agrees that if any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, including some jurisdictions where exclusion or limitation of warranties and liabilities for incidental and consequential damages are not allowed and may not apply to Customer, such provision shall be severed from this Agreement and all other provisions shall nevertheless continue in full force and effect. To the extent permissible under applicable law, the invalid or unenforceable provision shall be revised to the minimum extent needed to make it valid and enforceable, in order to achieve the purposes as originally expressed in the invalid or unenforceable provision.
1.16.2 Modifications
The Parties hereby agree that modification and waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of any party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default or breaches of the same or similar nature.
1.16.3 Governing Law and Dispute Resolution
This Agreement and all matters arising under or from it shall be governed by Michigan law, without giving effect to its conflict of laws rules. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be Michigan.
Any disputes or disagreements shall be resolved first by non-binding confidential mediation in Ann Arbor, MI before a neutral mediator appointed by the parties by mutual agreement. If the parties cannot agree on a mediator within 10 business days after either party demands mediation, then the mediator shall be appointed by the President of the Washtenaw County Bar Association. The parties shall pay the fees of the mediator in equal shares. If the mediation is not successful, then either party may submit the matter to binding, confidential arbitration before a single neutral arbitrator under the commercial arbitration rules of JAMS Endispute. The decision of the arbitrator shall be final and binding on all Parties and it may be entered as a judgment in any federal or state court of competent jurisdiction. The parties hereby agree that in the event any arbitration is initiated with reference to this Agreement by any party, the prevailing party shall be entitled to (and in addition to all remedies permissible under the express terms of this Agreement, the arbitrator shall also issue) an award of reasonable attorney’s fees and disbursements incurred by such party in connection with, including but not limited to fees and disbursements in administrative, regulatory, bankruptcy and appellate proceedings.
1.16.4 Entire Agreement
These Terms of Service, together with the License Agreement and the Business Associate Agreement between the parties constitute the entire agreement of the parties regarding the use of Rosemark by the customer. There are no separate agreements or understandings between the parties regarding Rosemark, whether written or oral.
1.16.5 Notice
All notices regarding these Terms of Service or the use by Customer of Rosemark shall be given in writing and shall be delivered in person, by certified mail return receipt requested, by overnight courier or by email, in each case with proof of delivery. Notices shall be effective upon receipt or upon refusal of delivery. Notices shall be addressed to the address of the recipient set forth in the License Terms between the parties or to such other address as the recipient may designate in writing.