Standard Terms for Messaging Services

Last updated on October 15th, 2015

ONLY AN AUTHORIZED REPRESENTATIVE WHO CAN LEGALLY BIND THE CONTRACTING PERSON OR ENTITY AS A CUSTOMER (AS DEFINED BELOW) CAN AGREE TO THESE STANDARD TERMS FOR MESSAGING SERVICES AND THE PRIVACY POLICY (AND WITH RESPECT TO APPLICABLE CUSTOMERS, THE BUSINESS ASSOCIATE AGREEMENT). BY CHECKING THE BOX THAT YOU AGREE TO THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THE CONTRACTING PERSON OR ENTITY AND AGREE TO BECOME A CUSTOMER UNDER THE PROVISIONS OF THESE STANDARD TERMS AND ANY APPLICABLE MESSAGING SERVICES AGREEMENT.

PLEASE READ CAREFULLY THESE TERMS OF USE THAT MAY BE AMENDED FROM TIME TO TIME (“STANDARD TERMS”). THESE TERMS GOVERN YOUR ACCESS TO AND USE OF THE SERVICE AND CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOUAND THE COMPANY (“SERVICE,” “YOU” AND “COMPANY” DEFINED BELOW).

These Standard Terms contain the terms under which Company and its Affiliates provide the Service to the Customer and through it to their Authorized Users (defined below) and describe how the Service may be accessed and used.

Depending on which of the features of the Service you use or type of Customer you are, additional terms and policies (including rules, guidelines and other similarly named documents) presented with those features of the Service may apply (“Additional Terms”). Those Additional Terms become a part of the agreement with us if you use the Service. (We refer to the combination of these Standard Terms and any applicable Additional Terms collectively as the “Terms.”)

You indicate your agreement to these Terms by clicking on a button indicating your acceptance of these Terms, or by using the Service. You may not use the Service without first agreeing to these Terms.

1. Definitions

Some important definitions for you to keep in mind, as you review these Terms are:

“Account” means either the Customer Account or the Authorized User Account.

“Administrator” means a person who is authorized by Customer to be the administrator of Customer’s Account. An Administrator is also included in the definition of Authorized User. In the event that Authorized User is the only user under the relevant Customer Account and the Authorized User’s legal identity is the same as that of the Customer (that is, that the Customer is not an entity, but an individual), then the terms Administrator, Authorized User and Customer as used in these Terms shall refer to the same individual and so have the same meaning and be interchangeable.

“Affiliates” means any entity which, at the relevant time, directly or indirectly controls, is controlled by or is under common control with such entity. The term “control” as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise. The term “voting securities” means all securities of an entity entitled, in the ordinary course, to vote in the election of directors of that entity or admit members into that entity.

“Authorized User” means a person who is authorized by Customer to communicate with Customer’s Patients utilizing the Service contracted for by Customer in accordance with these Terms. In the event that the Authorized User is the only user under the relevant Customer Account and the Authorized User’s legal identity is the same as that of the Customer (that is, that the Customer is not an entity, but an individual), then the terms Administrator, Authorized User and Customer as used in these Terms shall refer to the same individual and so have the same meaning and be interchangeable.

“Authorized User Account” means the account to be accessed by the Authorized User, which is controlled by Customer. In the event that the Authorized User is the only user under the relevant Customer Account and the Authorized User’s legal identity is the same as that of the Customer (that is, that the Customer is not an entity, but an individual), then the Authorized User Account shall refer to the Customer Account and so have the same meaning and be interchangeable.

“Customer Account” means the account assigned by Company to Customer in connection with provisioning of the Service.

“Company” means StudyCue, LLC (d/b/a Sense Health), also sometimes referred to as “Sense Health” and sometimes referred to as “we” and “us”, and “our” means of or belonging to Company.

“Company Content” means any content generated, provided, or otherwise made accessible by the Company on or through the Service and includes, without limitation, any information, data, text, photographs, Proprietary Software, Script Forms, graphics and interactive features.

“Customer” means any person or entity that is subject to these Terms, under which Sense Health provides it as well as its employees and authorized agents, on behalf of Customer, with access and the right to use the Sense Health Technology Platform. At all times the Customer shall be responsible to Company for the use of the Service by its Authorized Users. In the event that the Authorized User is the only user under the relevant Customer Account and the Authorized User’s legal identity is the same as that of the Customer (that is, that the Customer is not an entity, but an individual), then the terms Administrator, Authorized User and Customer as used in these terms shall refer to the same individual and so have the same meaning and be interchangeable.

“Customer Content” means the specific wording of Messages that are prepared or edited by Customer and its Authorized Users, and excludes any Company Content contained therein. In no event are the mere concepts of the underlying Messages themselves considered Customer Content, including, but not limited to, any diagnostic conditions or health states, such as diabetes, obesity or cancer.

“Customer Group Members” means the Customer and its Affiliates and their Representatives.

“Customer Script” means any Messages to be sent to a particular Patient that are included in a patient management regime for that particular Patient, based on the particular Patient’s individual needs (as determined by the Customer or its Authorized User, and for which Company has no liability) and customized by Customer or its Authorized User for receipt by a Patient, which may be generated at varying intervals through the Sense Health Technology Platform using proprietary algorithms owned by Company.

“Customer Suggestions” means any submissions by any Customer or any of its Authorized Users to the Company or otherwise through the Service, including, but not limited to, specifications, suggestions, feedback, Customer Content or other content or materials created by Customer.

“Guaranteed Service Levels” means any service levels established by the Company and set forth in the Service Plan, if any, selected by the Customer. .

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d et seq., as the same has been and may be amended from time to time (including, without limitation, those amendments effected by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009), together with all regulations promulgated thereunder, as the same have been and may be amended from time to time.

“Intellectual Property” means any and all now known or hereafter known, tangible and intangible intellectual property, including, but not limited to, (a) rights associated with works of authorship throughout the universe, including but not limited to, copyrights and moral rights, (b) trademark, service mark and trade name rights, (c) trade secret rights, (d) patents, designs and algorithms, (e) all other intellectual and industrial property rights, of every kind and nature throughout the universe and however designated (including, but not limited to, logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

“Login Credentials” means the credentials that a Customer generates through its Administrator or the system that allows an Authorized User to access Customer’s Account and use the Service.

“Message” means any message that is transmitted through our Service, whether initiated by an Authorized User or a Patient.

“Patient” means any person (i) who receives, as the case may be, health care services or products from, health insurance from, disease management from, or participates in a research study or clinical trial under the direction of or conducted by, Customer or one of Customer’s Authorized Users, and (ii) about whom an Authorized User has entered information into the Sense Health Technology Platform to communicate with such person by means of the Service.

“Payment Method” means the method of payment chosen by Customer to pay for all charges associated with the Service, including, but not limited to, check, credit card, ACH debit or wire transfer.

“Post” or “Posting” means to send a Message through the Service.

“Proprietary Software” means any software that has been, or will be, developed by or for Sense Health for the functionality of the Sense Health Technology Platform, and includes all HTML files, Java files, graphics files, animation files, data files, technology, algorithms, software scripts and programs, both in object code and source code form. Except as set forth in any separate written agreement to the contrary, Customer (including, any Authorized User) shall not be entitled to any Intellectual Property Rights in and to the Proprietary Software, even where Customer Suggestions are made concerning the Proprietary Software to enable Sense Health to provide the Service (including, but not limited to, any specifications to enable new functionality of the Proprietary Software). Under no circumstances shall the Proprietary Software become a joint work of authorship unless otherwise specifically provided in any separate written agreement to the contrary.

“PHI” or “Protected Health Information” shall have the meaning given to it under HIPAA.

 

“Representatives” means directors, officers, managers, employees, agents, representatives, attorneys and advisors and, in the case of Customer, any Authorized User.

“Script Forms” means forms of Messages which may be generated at varying intervals through the Sense Health Technology Platform using proprietary algorithms owned by the Company, which forms may be customized by the Customer or its Authorized User for receipt by a particular Patient based on the particular Patient’s individual needs and management regime.

“Sense Health Technology Platform” means the proprietary mobile care management platform known as Sense Health which has been coded using the Proprietary Software and includes the Company Content.

“Service” means the proprietary system, Website, mobile application, products and services (including any interface from the Sense Health Technology Platform to any other service or software utilized by Customer and/or its Authorized Users), owned and operated by the Company that enables Customers and their Authorized Users to interact with Patients via mobile technology, together with all associated support services provided with respect thereto by Company.

“Service Plan” means the pricing plan and related terms associated by Company with the Service level that the Customer has selected for the number of Authorized Users permitted to utilize the Service under Customer’s Account, including charges for any additional features.

“TCPA” means the Telephone Consumer Protection Act, together with the regulations promulgated thereunder, as the law and regulations have been and may be amended from time to time.

“User Account” means the account assigned to an Authorized User by the Customer, whereby the Authorized User can access and use the Service, solely in accordance with the Terms.

“you” or “yours” refers to Customer and/or the relevant Authorized User, as the case may be.

“Website” means the website found at www.SenseHealth.com and any subdomains associated with it.

2. Applicability of These Terms

Your access to and use of the Service is expressly conditioned on your acceptance of and compliance with these Terms.

a. As a Customer (by entering into any applicable Messaging Services Agreement, identifying an Administrator and registering any Authorized Users and/or accessing and/or using the Service in any manner), you agree to be bound by these Terms and all applicable laws and regulations governing the Service. In the event that a provision concerning a Customer in these Terms directly conflicts with any Additional Terms between Company and Customer, the terms of such Additional Terms will control to the extent of such conflict. Customers and not Company are responsible for the assignment of Accounts to Authorized Users and the use of the Service and access to the Sense Health Technology Platform by their Authorized Users. These Standard Terms apply to all Customers of the Service, as well as Additional Terms applicable to specific aspects of the Service. Such Additional Terms may be posted as you access those aspects of the Service.

 

b. As an Authorized User (by using the Service), you agree to be bound by these Terms and all applicable laws and regulations governing the Service and the use of the Service by you and by your applicable Customer. These Standard Terms apply to all Authorized Users of the Service, as well as Additional Terms applicable to specific aspects of the Service. Such Additional Terms may be posted as you access those aspects of the Service.

 

c. If HIPAA requires you to enter into a business associate contract with us (for example, if you are a “Covered Entity” and we will be your “Business Associate” as defined under HIPAA), then you and we are subject to the Sense Health Business Associate Agreement (“BAA”) that is Appendix A to these Standard Terms. The provisions of the BAA will take precedence over the rest of the provisions of these Standard Terms to the extent of any conflict.

 

 

3. The Service

The Company provides the Service to facilitate two-way communication between Customers’ Authorized Users and Patients via mobile channels (including a mobile application), SMS messaging, and interactive voice response (“IVR”). SMS messaging and IVR are by definition not encrypted. Various provisions below provide important information and restrictions on the appropriate use of the Service by Customers and their Authorized Users for Patients. The Company agrees to provide the Service, and Customer and its Authorized Users are authorized to access and use the Service, including, without limitation, the Sense Health Technology Platform, the Company Content, the Proprietary Software in object code form, and the Script Forms , for the sole and exclusive purpose of communicating with their Patients and only during the term of any applicable Messaging Services Agreement and for so long as they comply with the Terms. Sense Health may immediately terminate the Terms and thereby terminate access of Customer and/or any of its Authorized Users to the Service upon any breach of the Terms or any applicable Messaging Services Agreement, including, without limitation, Customer’s failure to timely pay for the Service, Customer’s or any Authorized User’s failure to comply with HIPAA or an Authorized User failing to secure his or her Account.

THE SERVICE DOES NOT INCLUDE THE PROVISION OF MEDICAL CARE BY THE COMPANY. THE COMPANY DOES NOT EMPLOY OR CONTRACT WITH ANY PERSON, ORGANIZATION OR ENTITY TO PROVIDE MEDICAL CARE, HEALTH INSURANCE, CARE MANAGEMENT OR DISEASE MANAGEMENT TO ANY INDIVIDUALS, INCLUDING, WITHOUT LIMITATION, TO ANY PATIENTS.

4. Customer And Its Authorized Users

a. Customer hereby represents and warrants that it is duly authorized to enter into the Terms and any applicable Message Services Agreement, together with any associated agreements or documents, including those that Sense Health may, in its sole and absolute discretion, determine are necessary for it to provide the Service, that Customer has fully completed and delivered to Company a copy of its Customer Intake Survey, and that all information contained therein regarding the Customer is accurate and complete.

b. Customer further represents and warrants to the Company that Customer’s signatory has the authority to bind Customer to the Terms and any applicable Message Services Agreement, to utilize the Service, to allow Customer and its Authorized Users to enter into the Sense Health Technology Platform such information as may enable the Service to generate Customer Scripts, customized by Customer or its Authorized Users, for potential transmission to the Patient (including, without limitation, the Patient’s cellular phone number and diagnoses regarding conditions about which you intend to communicate with the Patient), and to communicate with Patients using the Sense Health Technology Platform.

c. Customer and/or the applicable Authorized User holds any licenses and other approvals necessary to transmit each Customer Script and any other Company Content to each Patient by means of the Service. Customer and Authorized User are solely responsible for all of the content you enter into the System or that you choose to transmit to Patients using the Service, and Sense Health may hold either Customer and/or Authorized User responsible for such use in its sole and absolute discretion.

d. You will comply with all applicable laws in connection with your use of the Services, and Customer shall not request Company to use or disclose any Patient-related information in any manner that would not be permissible under applicable federal or state law (including, without limitation, HIPAA), if done by Customer.

e. Customer shall not send any Message via the Sense Health Technology Platform that would be impermissible for it to send through a separate means of communication.

 

f. Customer represents and warrants that its applicable Notice of Privacy Practices and other privacy policies permit the transmission of the Messages it will exchange with its Patients (including, without limitation, appointment and medication reminders) and Sense Health’s lawful handling of the Messages and other information pursuant to these Standard Terms, that each of its Patients will have been provided with such Notice of Privacy Practices and any other legally required notices before any PHI or other personally identifiable information of such Patient will be Posted by an Authorized User, and that it will not utilize the Service in a manner that is inconsistent with its Notice of Privacy Practices or other privacy policies. At all times Customer (and not Sense Health) is responsible for supplying Patients with, and compliance with, Customer’s Notice of Privacy Practices and any other of its policies and procedures.

 

5. Communicating with Patients through Our Service

 

a. The Service allows you to communicate with your Patients through a mobile application, which uses encryption, and through text messaging and IVR, both of which do not utilize encryption.

 

b. By entering Patient-related information into the Sense Health Technology Platform (including, without limitation, any PHI) you represent and warrant that you have all necessary legal rights and authorizations to do so and that you will utilize the Service exclusively in accordance with these Terms and all applicable laws and regulations. You agree to only enter into the Sense Health Technology Platform such information as is consistent with the configuration of the Sense Health Technology Platform and is not prohibited from being entered (for example, social security numbers and Patient credit card numbers are prohibited from being entered) and, with respect to each Patient, you agree only to enter such information as is needed for the identification and transmission of a Message customized for receipt by such Patient.

 

 

c. You agree that, prior to sending Messages to any Patient, you will obtain legally sufficient consent of such Patient to receive Messages sent via the Sense Health Technology Platform; will confirm the phone number to which the Messages are to be sent; and will confirm that such mobile device is under the control of the Patient. You are responsible for obtaining any consent, authorization or permission that may be legally required (including without limitation as may be required under HIPAA or under the TCPA) for you to communicate with a Patient via the Service, including, without limitation, the consent of the Patient (or their legal representative, as the case may be) to receive automatically generated messages, and the authorization of the Patient (or their legal representative, as the case may be) to receive Messages transmitted via the Service regarding their healthcare, and any consent necessary for Sense Health’s handling of Messages. Your obligation to obtain consent, authorization and permission to send Messages regarding a Patient’s healthcare to the Patient includes, without limitation, any specialized consent, authorization or permission that may be needed as a result of the Patient’s age or other condition or the content of your Message, including, without limitation, should you decide to transmit any information relating to, among other conditions, H.I.V., mental health or substance abuse. You are required to identify the appropriate individual to provide such consent, authorization or permission, and to obtain such consent, authorization or permission from such person prior to sending any Message to the Patient. As a result, you are responsible to ensure that any relevant consent, authorization or permission is obtained from the legally appropriate individual capable of providing such consent, authorization or other permission. Although Sense Health may provide consent templates, Sense Health does not provide legal advice or make any representation as to the legal sufficiency of such templates; accordingly it is the Customer’s responsibility to customize those templates for its use (where customization is possible) or implement additional or different consent steps if necessary, in consultation with Customer’s own legal counsel. Sense Health assumes no responsibility or liability for the consent process, including, but not limited to, assessing whether or not any individual Patient is capable of providing a legally valid consent, authorization or permission to receive any Message sent via the Service, and whether or not the specific phrasing of any such consent, authorization or permission document complies with the federal or state law applicable to communications with such Patient.

 

d. In the event that, instead of using the Sense Health Technology Platform to obtain the relevant consent, authorization or permission, Customer utilizes a paper based or other process, then when signing Patients into the Sense Health system, Customer and/or its Authorized Users will certify that they have obtained the appropriate consent, authorization or permission necessary to utilize the Sense Health Proprietary Platform to transmit Messages to the Patient. Customer will maintain copies of such consent document and, upon request from Sense Health, will provide Sense Health with the original or a copy of the applicable signed informed consent form for each such Patient. Sense Health’s acceptance of such documents is not a waiver of Customer’s consent obligations.

 

e. In the event that any Patient revokes his or her consent, authorization or other permission as may be required for you to transmit Messages to such Patient, you will immediately cease to utilize the Service to communicate with such Patient and deactivate any Script or automated delivery of Messages scheduled to be sent to such Patient.

 

f. For purposes of these Standard Terms, you agree to assume that (1) the Service and Sense Health Technology Platform constitute or use an “automatic telephone dialing system” or “autodialer” as defined under the TCPA, and (2) the Service and Sense Health Technology Platform send text messages using the sort of technology for which message recipients’ consent is required under the TCPA and other laws and regulations that specify the form of consent for text messages or the standards for obtaining such consent.

 

g. You will not utilize the Service to transmit any Message to any individual who is under thirteen (13) years of age. You will not utilize the Services to transmit any Message to any individual who is not a resident of the United States of America.

 

h. Authorized Users are solely responsible for determining whether their use of the Service is consistent with Customer’s applicable policies and procedures, and Sense Health will have no responsibility or liability in connection therewith.

 

 

i. The Service includes a built-in proprietary feature that “flags” certain information found in proposed Messages which may constitute certain kinds of PHI, and in such instances requests that the Authorized User re-review the content of the Message before sending it. However, the Sense Health Technology Platform may not always be able to detect all such PHI in the content, and Sense Health has no obligation to screen or flag the content. Accordingly, you will not rely on the flagging tool. It is important for you to remember that the content and schedule of the communications between you and your Patient are solely your responsibility, even when you have decided to transmit a form Message generated by the Sense Health Technology Platform for your potential use. It is your responsibility to review any such form Message and customize it for transmission to your Patient, taking into account the particular needs of such Patient and the nature of the information contained in the Message. It is your responsibility to review all Messages sent to your Patients for their appropriateness of delivery to the relevant Patients. Notwithstanding the foregoing, the Company reserves the right, but has no obligation to monitor, edit or delete any Message, regardless of whether such communication or submission violates these Terms or the Privacy Policy.

 

j. By using the Service, you agree that Company shall not be responsible or liable for: (a) any Company Content; (b) any person’s reliance on any such Company Content, whether or not correct, current and complete; or (c) the consequences of any action that you or any other person or entity takes or fails to take based on any Company Content or otherwise as a result of your use of the Service.

 

 

6. Messages Sent By Patients

 

a. As part of the Service, the Company provides features to alert the Authorized User through Sense Health Proprietary System notifications when a Patient has sent a Message to the Customer or Authorized User via the Service. It is possible that a Patient may send a Message to a Customer or Authorized User via the Service regarding a medical emergency. At all times, it is the responsibility of Customer and its Authorized User to access, review and respond to all Messages transmitted by a Patient in a timely and appropriate manner.

 

b. The Service enables Patients to reply to any Messages sent by you to a Patient, as well as to initiate communication to you through the Service. You are responsible for informing your Patients about the appropriate use of the Service, specifically what types of information to share through the Service and that it is never to be used in an emergency situation. Under no circumstances shall Company have any responsibility or liability to you with respect to any communication sent by a Patient to you via the Service, even if such communication conveys information about a medical emergency or is inappropriate, harassing or threatening in any manner, or in any way discusses any health or other information.

 

7. No Medical Advice

The Company Content does not contain, and Sense Health is not providing any Patient with medical advice, diagnosis or treatment, but is merely providing the Sense Health Technology Platform for Customers and their Authorized Users to communicate information to Patients. Sense Health has no duty to advise you of changes in the scientific or medical information that may affect a Patient’s health or medical situation or to analyze a Patient’s information in the first instance or based on changes in the available scientific or medical information or otherwise. Although Sense Health owns or licenses all Script Forms and may identify certain Script Forms as being potentially useful for Customers and their Authorized Users to use with particular Patients, communications with Patients are the responsibility of Customer and its Authorized Users.

THE COMPANY DOES NOT OFFER MEDICAL ADVICE, DIAGNOSES OR OTHER HEALTH MANAGEMENT SERVICES OR ENGAGE IN THE PRACTICE OF MEDICINE. OUR SERVICES ARE NOT INTENDED TO BE, AND DO NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS TREATMENT OR HEALTH MANAGEMENT AND ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY.

The Company makes no representations or warranties concerning the appropriateness, accuracy, reliability, usefulness, completeness, or timeliness of any Company Content (including, without limitation, any Script Form) transmitted through the Service. No Company Content may be substituted for individualized healthcare advice from a qualified professional.

8. Privacy.

The Company’s privacy policy is located here (the “Privacy Policy”). Customer authorizes Company to engage in the uses and disclosures of information described in the Privacy Policy, subject to any limits imposed by the BAA. For example, Company may share appropriately aggregated or de-identified data as described in the Privacy Policy. In addition, Company may handle information about Customer and its Authorized Users (e.g., Customer’s employees) for lawful marketing and business development purposes. Company represents that it has obtained any legally required consent, authorization or approval from its Authorized Users for the collection, use, disclosure and other handling of information contemplated by these Standard Terms.

9. Rules and Conduct

As a condition of use, you promise not to use the Service for any purpose that is prohibited by these Terms or by law. The Service (including, without limitation, any Company Content) is provided solely for communication between Customers and their Authorized Users and Patients. By way of example, and not limitation, you shall not (and shall not permit any third party to):

a. Utilize the Service or the Sense Health Technology Platform in any way to transmit any communication that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, infringing of intellectual property rights, hateful, or racially, sexually, ethnically or otherwise objectionable, is knowingly false or inaccurate or constitutes “spam” or any form of solicitation through the Service;

b. Utilize the Service to transmit any content that contains, directly or indirectly through links or otherwise, software viruses, “malware,” worms, trojan horses, time bombs, back doors, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy, limit the functionality of or gain unauthorized access to any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, impair the functionality of or gain unauthorized access to the Service or any of the Company’s hardware or software;

c. Copy, modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or cause or allow others to do so, including, but not limited to, the content, interactive features, tools, or technology of the Service in any format without an express written license from the Company;

d. Solicit passwords or personally identifying information for unlawful or otherwise improper purposes from any person (including any Patient); and

e. Use automated means, including scripts, spiders, robots, crawlers, or the like, or manual process to access or download data from any of the Company’s databases or send Messages using such automated means through the Service or attempt, through any means, to gain unauthorized access to the Service or another Authorized User’s account;

f. Send messages or otherwise use the Service in a manner that implies that Company is providing medical advice, health insurance, care management, disease management or any service other than a communications service; and

g. Utilize the Service if you are ineligible to so utilize the Service, including, but not limited to, after the Service has been terminated by Company the Terms, any other agreement between the Customer and the Company or any policy of the Company.

You will promptly notify the Company of (i) any violations of the Terms, including, without limitation, by any of your Authorized Users or Patients, (ii) the unauthorized use or disclosure of your Login Credentials, and (iii) any breach, or potential breach, of the security of your Account or of any information maintained in the Sense Health Technology Platform. Such notification will be made by you to the Company at privacy@sensehealth.com, containing in the subject line “Report Violation of Company’s Policies” and detailing the nature of the violation. The Company will endeavor to investigate the alleged violation and will determine in its sole discretion how to respond to complaints.

10. Registration, Login and Access

 

a. Customer shall designate an Administrator who will control access to Customer’s Account(s) through the identification of Customer’s representatives who will receive Authorized User Accounts. Customer may not designate more than one Administrator at a time. The Administrator will control access to the Authorized User Accounts on behalf of Customer and may cancel an individual’s Authorized User Account and (unless the Authorized User Account is also a Customer Account) transfer patient-related data from an Authorized User Account to another Authorized User Account at any time. In the event that Administrator increases or decreases the number of Authorized Users in relation to the number of Authorized Users originally identified at the time the Customer’s Account was established, Customer shall pay to Company an increased or decreased Subscription Fee (as defined below) to account for the current number of Authorized Users.

b. All access to the Service is via Login Credentials. You agree that you are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs under those Login Credentials. You agree to notify us immediately if you believe that any of your Login Credentials have been or may be used without your permission.

c. You shall not share your Login Credentials with any person, organization or entity, other than your Administrator, if any. The Company is not responsible for any loss, damage or expense caused by your failure to safeguard Your Login Credentials.

d. Customer (and any Administrator) may not transfer the Customer Account to any third party without the prior consent of Company which may be withheld or delayed in the sole discretion of Company. You agree that you shall not rent, resell, or remarket the Service or Company Content or provide access to the Service or Company Content to any third party.

e. In the event that your Account is terminated by the Company for a breach of the Terms, any Messaging Services Agreement or any other applicable agreement, your Login Credentials will be disabled in connection with the Account and you will not be able to access your Account. You may not be permitted to create a new Account to access the Service or Company Content if your prior Login Credentials have been terminated by the Company. You agree to provide, maintain and update true, accurate, current and complete Account information, and represent that you will not misrepresent your identity or your affiliation with any person or entity.

 

11. Company Response Time.

The Company makes reasonable efforts to respond to questions, requests and other inquiries posed to it by Customers and their Authorized Users. The Company shall have no liability for failure to respond within any specific period or otherwise, except as may be required by law or as set forth in any separate written agreement to which the Company and the Customer are parties.

12. Cost of Using Our Service and Billing and Subscription Term

Unless the Company otherwise agrees with respect to a particular subsection under the terms of the Service Plan, any applicable Messaging Services Agreement or other agreement:

a. Billing Information. Customer represents that it has provided Company with current, complete and accurate information for Customer Account. Customer will promptly update all information to keep Customer Account information current, complete and accurate (such as a change in billing address, card number or expiration date), and will promptly notify the Company if your chosen Payment Method is canceled (including if you lose your credit or debit card or it is stolen). The Administrator for Customer’s Account may make changes to such information at “Account Settings” on the Website.

 

b. Recurring Subscription Fees. Customer is required to pay the fees applicable to your Account through our Service Plan (the “Fees”), after the application of any free trial period. Where applicable, Customer will be billed using the billing method Customer selects through Customer’s Account management page. Fees paid by Customer are non-refundable, except as provided in any applicable Messaging Services Agreement or otherwise in the Terms or when required by law.

 

 

c. Subscriptions. All of our Services are billed on a subscription basis (we call these “Subscriptions”). Customer will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what cycle Customer selects when purchasing a Subscription.

 

d. Payment Method. By subscribing, you authorize the Company to charge your Payment Method now and again at the beginning of any subsequent Subscription period. You also authorize the Company to charge you for any sales or similar taxes that may be imposed on your subscription payments.

 

 

e. Term. Customer’s Subscription will automatically renew at the end of each billing cycle unless Customer cancels auto-renewal as described below under “Cancelling An Account.” When Customer cancels the Customer Account, all Authorized User Accounts will also be canceled.

 

f. Renewal Term(s). After your initial Subscription commitment period, and again after any subsequent Subscription period, the Subscription will automatically continue for an additional equivalent period, at the price you originally agreed to when subscribing, plus any subsequent increases previously implemented by Company during the term of your Subscription.

g. Termination by Customer. If you cancel your Subscription, you may use your Subscription until the end of your then-current subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.

 

h. Termination by Company. If (a) Customer fails to pay the Fees for the Service on time, (b) Customer (or any Authorized User accessing the Services under Customer) violates the Standard Terms or any Additional Terms or otherwise breaches any agreement between Customer and Company, the Company may terminate or suspend Customer’s Account and all or any of its Authorized Users’ Accounts. If the Accounts are suspended due to failure of your Payment Method, then reasonably promptly following receipt of your payment of all amounts then due, the Accounts will be reactivated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received.

 

i. Insolvency. In addition, either party shall have the right to terminate the Terms immediately, without notice, if the other party (i) becomes insolvent or proceedings are initiated by or against either party under any law relating to bankruptcy, insolvency or the relief of debtors; (ii) fails to have or loses any required license, registration and/or certification; or (iii) materially violates applicable laws or regulations, including, but not limited to, HIPAA.

 

 

j. Effect of Termination. Upon any termination of your Subscription by Company (i) the rights and licenses granted to Customer (including any Authorized Users) herein shall terminate; and (ii) you must cease all use of the Service. The Company reserves the right to pursue any and all legal and equitable remedies against you, including, but not limited to, discontinuing providing the Service and recovering through legal proceedings damages that you have caused the Company. The Company is not required to give you any notice prior to pursuing such remedies except as may be required by law.

 

k. Taxes. Customer will pay Sense Health for the Service without any reduction for any taxes or duties (such taxes (other than income tax imposed upon Company) and duties associated with the sale of the Services, including any related penalties or interest, collectively, “Taxes”). If Sense Health is obliged to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer shall provide Sense Health with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged. If Customer is required by law to withhold any Taxes from payments to Sense Health, Customer must provide Sense Health with an official tax receipt or other appropriate documentation to support such payments. Sense Health is entitled to charge Customer in subsequent billing periods for the “gross up” amount of such tax payments so as to be reimbursed the amount thereof.

 

l. Price Changes. Sense Health may change the Fees charged for the Service at any time, provided that, for Service billed on a Subscription basis, the change will become effective only at the end of the then-current billing cycle of the relevant Subscription. Sense Health will provide Customer with reasonable prior written notice of any change in Fees (in no event less than 30 days) to give you an opportunity to cancel your Subscription before the change becomes effective.

 

 

m. Credit Card Billing. If Customer has chosen to manage its payments for its Subscription by having the costs billed to its credit or debit card, charges for the Service are may be processed by Recurly, or another third party provider. In such case, you hereby authorize the Company to charge your chosen payment provider (e.g., MasterCard, Visa, American Express) for the Service. You may change the Payment Method by logging into your account and going into your account settings.The Company may correct any billing errors or mistakes that it makes even if it has already requested or received payment. If Customer initiates a chargeback or otherwise reverses a payment, the Company may, in its sole discretion, terminate Customer’s Account and any of its Authorized Users’ Accounts immediately. If the Company successfully disputes the reversal, and the reversed funds are returned, Customer is not entitled to a refund or to have the Accounts or Subscription reinstated. If the Company does not receive payment from your Payment Method provider, you are still responsible for making the payment due. If you fail to make a timely payment, as provided above, the Company may terminate or suspend Customer’s Account and all Authorized Users’ Accounts and continue to attempt to charge your Payment Method provider until payment is received. Customer specifically authorizes the Company to obtain updated or replacement expiration dates and card numbers for the credit or debit card as provided by the credit or debit card issuer. For more information visit: https://recurly.com/legal/terms and https://recurly.com/legal/privacy. Customer reserves the right to change its third party billing provider at any time without notice to Customer.

 

13. Cancelling An Account

a. To cancel a Customer Account, do any of the following: (i) email support@wellpass.com with the words “Cancel Account” in the subject line, (ii) follow the process provided on your online account management page or (iii) contact your Customer Support representative via email for assistance. Customer may cancel auto-renewal of its Subscription at any time by use of these means, in which case Customer’s Subscription will continue until the end of that billing cycle before terminating.

b. To cancel an Authorized User Account contact your Customer Support representative via email for assistance.

 

14. Copyrights, Trademarks and Other Intellectual Property Rights

 

a. The Company’s Rights To The Proprietary Software. Customers are granted a limited license to use the Service for the specific purpose it was intended and for no other. Inclusion of any part of the Service in any other work, whether printed, electronic or in any other form, is strictly prohibited, except as set forth in these Terms. Permission for any other usage of the Service must be requested in advance and approved by us in writing. As between Customer and Company, all software used or provided by Company to provide the Service, including, but not limited to, the Sense Health Technology Platform and its Proprietary Software, shall be the sole and exclusive property of Company, and Customer shall not acquire any Intellectual Property Rights or other interest in and to such software. Any Customer Suggestions STHIS to modify the Proprietary Software to enable the Company to provide the Service (including, but not limited to, any specifications to enable new functionality of the Proprietary Software) or the writing of any Scripts or other content for use by the Company to provide the Services shall not entitle Customer to any Intellectual Property Rights or other interest in and to such Proprietary Software; such Proprietary Software shall not become a joint work of authorship as a result thereof or under any circumstances. For all Customer Suggestions concerning the Proprietary Software or otherwise (except as set forth herein), Customer grants to the Company (and its successors and assigns) a non-exclusive, world-wide, irrevocable, fully paid, royalty free, perpetual license (with the right to sublicense through multiple tiers) in and to all rights Customer has in and to such material, including, but not limited to, the rights to use, copy, transmit, publish, promote, publicly display, publicly perform, adapt, modify, create compilations and derivative works of, and distribute them directly or indirectly. Such license shall apply with respect to any form, media or technology now known or later developed.

 

b. The Customer’s Rights Concerning Customer’s Suggestions. With the exception of Customer Suggestions to modify the Proprietary Software to enable the Company to provide the Service (including, but not limited to, any specifications to enable new functionality of the Proprietary Software), Customer Suggestions will continue to be yours; you will retain all Intellectual Property Rights and other ownership rights in and to such Customer Suggestions. However, you agree to provide to the Company (and its successors and assigns) a license for such Customer Suggestions as set forth below. Please note, however, that you will not become a recognized contributor in connection with our Service or otherwise by making such Customer Suggestions. Recognition of the originator of such Customer Suggestions is solely at our discretion or except as otherwise provided in any applicable Messaging Services Agreement or other agreement between Customer and the Company. Subject to any separate written agreement to which the Company is a party, for all Customer Suggestions, you grant the Company (and its successors and assigns) a non-exclusive, world-wide, irrevocable, fully paid, royalty free, perpetual license (with the right to sublicense through multiple tiers) in and to all rights you have in and to Customer Suggestions, including, but not limited to, the rights to use, copy, transmit, publish, promote, publicly display, publicly perform, adapt, modify, create compilations and derivative works of, and distribute Customer Suggestions directly or in connection with the Service and any other products and services offered by the Company or any of its licensees or sublicensees. Such license shall apply with respect to any form, media or technology now known or later developed. With the exception of Customer Suggestions to modify the Proprietary Software to enable the Company to provide the Service (including, but not limited to, any specifications to enable new functionality of the Proprietary Software), you are free to license Customer Suggestions to anyone else in addition to us, provided that you do not provide such persons or entities an exclusive license for such Customer Suggestions. This license will last forever, even after you have terminated your Account or other interaction with the Company. The Company does not have to pay you for the use of Customer Suggestions now or in the future. In connection with the rights granted by you to the Company as set forth above, you represent and warrant to the Company that you own Customer Suggestions or otherwise have the right to make this grant of this license and that the submission of Customer Suggestions and the grant of this license will not infringe or violate the rights of any third party, including, but not limited to, contract rights, the rights of privacy or publicity or copyrights or other Intellectual Property rights. You agree to pay for all royalties, fees and any other monies owing any person or entity by reason of the submission of Customer Suggestions to Company or through the Service.

 

c. Publicity. Sense Health may add Customer’s name to a client list to be distributed for solicitations to potential customers which contains Customer’s name and location only and may place Customer’s name and logo on Sense Health’s Website identifying it as a customer of Sense Health. Either Sense Health or Customer may issue and publicize a press release, provided such press release has been approved in writing in advance by the other party. Whenever written consent is required from the Customer in this subsection, such written consent may be given by email.

d. The Service. The Service, unless otherwise noted, is copyrighted by the Company. All Company Content created by Company and included on our Website, in any mobile application or otherwise associated with the Services, such as text, logos, graphics, images, javascript code, HTML code and other code is the exclusive property of the Company and is protected by U.S. copyright law and international copyright laws. Notwithstanding that some of the Company Content may not be created by us, the collection of all of the Customer Content and our original Company Content is a collective work under U.S. copyright law and is the exclusive property of the Company and protected by U.S. and international copyright laws, unless otherwise provided in any applicable Messaging Services Agreement. The Company follows the protocols of the Digital Millennium Copyright Act; if you believe your rights have been violated by the Company for matters that would be covered by the DMCA, please notify the Company as set forth in our DMCA Policy.

 

15. Warranty Disclaimer

THE SERVICE (INCLUDING, BUT NOT LIMITED TO, ANY COMPANY CONTENT SUCH AS THE SCRIPT FORMS), ANY APPLICATION THAT MAY BE MADE AVAILABLE FOR USE BY AUTHORIZED USERS AND/OR PATIENTS IN CONNECTION WITH THEIR USE OF THE SERVICE AND THE WEBSITE FOUND AT WWW.SENSEHEALTH.COM (THE “WEBSITE”) ARE PROVIDED BY THE COMPANY STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE (INCLUDING, BUT NOT LIMITED TO, ANY COMMUNICATION WITH THE COMPANY OR ITS REPRESENTATIVES, CUSTOMER’S OR AUTHORIZED USER’S SENDING OF MESSAGES THROUGH THE SENSE HEALTH TECHNOLOGY PLATFORM, OR A PATIENT’S RECEIPT OF MESSAGES SENT THROUGH THE SENSE HEALTH TECHNOLOGY PLATFORMCOMPANY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE. THE COMPANY (AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS AND ANY AND ALL OF THEIR MEMBERS, EQUITY HOLDERS, PRINCIPALS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, INDEPENDENT CONTRACTORS, LICENSORS, LICENSEES, SUBLICENSEES, AGENTS AND REPRESENTATIVES) DO NOT WARRANT THAT: (A) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED EXCEPT AS SET FORTH IN THE SERVICE PLAN; OR (C) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.

TO THE EXTENT ANY STATUTORILY MANDATED WARRANTIES MAY BE DISCLAIMED, THE COMPANY INTENDS HEREBY TO DISCLAIM EACH AND EVERY ONE OF THEM.

IF FOR ANY REASON THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED UNDER APPLICABLE STATE LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF FIRST USE OF THE SERVICE BY CUSTOMER AND ITS AUTHORIZED USERS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

THE COMPANY IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED BY THE CUSTOMER, ITS AUTHORIZED USERS OR THEIR REPRESENTATIVES AND AGENTS.

THE COMPANY DOES NOT REPRESENT OR WARRANT THAT CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF THE SERVICE OFFERED BY THE COMPANY WILL BE UNINTERRUPTED, ALWAYS AVAILABLE OR ERROR FREE, EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN ANY APPLICABLESERVICE PLAN. THE COMPANY MAKES NO GUARANTEES OF ANY SPECIFIC RESULTS. CUSTOMER ACKNOWLEDGES THAT TEXT MESSAGES SENT WITHOUT USE OF THE APPLICABLE SMARTPHONE APPLICATION AND MESSAGES TRANSMITTED VIA INTERACTIVE VOICE RESPONSE SYSTEMS OVER THE SERVICE WILL BE UNENCRYPTED AND CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ANY CONTENT, OR UNAUTHORIZED ACCESS TO SUCH CONTENT, SENT BY CUSTOMER, ITS AUTHORIZED USERS AND ITS PATIENTS USING THE SENSE HEALTH TECHNOLOGY PLATFORM.

 

ALTHOUGH THE COMPANY WILL COMPLY WITH THESE STANDARD TERMS, THE COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY, SECURITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION.

16. Force Majeure; No Responsibility for Third Party Technical Failures.

The Company will not be liable for any failure or delay in performance in connection with the Services due to circumstances beyond its reasonable control. The Company is not responsible or liable for any failure, error or misconduct of any third party provider, including, but not limited to, any server supplied by its hosting company and any cellular telephone carrier responsible for the delivery of text messages to any Patients’ cellular telephones, including, but not limited to, the lack of connectivity or availability of the Services; the lack of timeliness of the Service due to delays in transmission of messages; or the deletion, non-delivery or failure to store any data, communications or personalization settings transmitted by any Authorized User or Patient that otherwise would be captured and stored by the Service), except to the extent otherwise expressly provided in any applicable Business Associate Agreement between Customer and the Company.

17. Indemnification

Customer will indemnify, defend and hold harmless Company and its Affiliates, and each of their officers, directors, employees, successors, assigns, and insurance companies (collectively, the “Indemnified Parties”), against and from any and all liabilities, losses, settlements, penalties, judgments, costs, and expenses of any kind including, without limitation, attorneys’ fees, resulting from third party claims against the Indemnified Party arising out of (i) a Customer Group Member’s negligence, willful misconduct or unlawful conduct, or (ii) Customer’s failure to provide accurate information regarding a Patient, (iii) Customer’s breach of these Standard Terms, such as by failure to obtain appropriate consent to the handling of information contemplated by these Standard Terms (collectively, “Claims”). The defense obligation attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions. Customer shall not compromise or settle a Claim without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed; provided that Customer may, however, effect a compromise or settlement of a Claim without the Indemnified Party’s consent if the following conditions are met: (a) there is no required admission of guilt or liability by the Indemnified Party; (b) the sole relief provided is monetary damages that are paid in full by Customer; (c) the compromise or settlement entered into between the parties to the matter shall provides that the compromise or settlement entered into between the parties, and all discussions between and among the parties to the matter surrounding the compromise or settlement, shall be kept confidential; such compromise or settlement also shall stipulate that no press releases or other public statements may be made concerning such compromise or settlement without the prior written consent of the Indemnified Party; (d) the Indemnified Party is made aware of the proposed compromise or settlement as reasonably early as practicable; and (e) the proposed compromise or settlement includes the claimant’s or the plaintiff’s unconditional release of the Indemnified Party from all liability in respect of the Claim.

18. Limitations of Liability.

THE COMPANY’S LIABILITY UNDER THESE TERMS AND ANY RELATED AGREEMENT (INCLUDING WITHOUT LIMITATION ANY AGREEMENT REQUIRED UNDER HIPAA) (COLLECTIVELY, THE “AGREEMENTS”) IS LIMITED TO THE SUBSCRIPTION FEES PAID TO IT DURING ANY INITIAL TERM OR SUBSEQUENT TERM (INDIVIDUALLY, BUT NOT IN THE AGGREGATE) IN RESPECT OF THE SERVICE AND ANY USE OF THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, CUSTOMER OR ITS AUTHORIZED USER’S SENDING OF MESSAGES AND A PATIENT’S RECEIPT OF MESSAGES THROUGH SENSE HEALTH’S TECHNOLOGY PLATFORM. UNLESS PROHIBITED BY LAW, THE COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR TO THE CUSTOMER GROUP MEMBERS FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, FAILURE OF INVESTMENTS, REDUCTION IN ASSETS, LOST PROFITS OR LOSS OF BUSINESS, ARISING FROM USE OF THE WEBSITE OR THE SERVICES UNDER ANY OF THE AGREEMENTS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY IN THE EVENT OF THE COMPANY’S INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

NOTHING HEREIN SHALL LIMIT THE POTENTIAL PROFESSIONAL LIABILITY OF CUSTOMER OR AN AUTHORIZED USER ARISING FROM OR RELATED TO MEDICAL SERVICES, MEDICAL PRODUCTS, CARE MANAGEMENT OR HEALTH INSURANCE SERVICES THAT A PATIENT MAY RECEIVE FROM THEM OR IN CONNECTION WITH THE CUSTOMER’S OR ITS AUTHORIZED USER’S USE OF THE SERVICE TO COMMUNICATE WITH THE PATIENT. THE COMPANY IS NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE, MISCONDUCT, OTHER ACT OR OMISSION OF ANY CUSTOMER, AUTHORIZED USER OR OTHER PARTY OR BY THE CONTENT OR OMISSION OF ANY SCRIPT OR MESSAGE SENT USING THE SERVICE. THE COMPANY WILL HAVE NO LIABILITY FOR ANY PARTY’S DISABLING OF, REMOVAL OF OR FAILURE TO USE ANY PRIVACY OR SECURITY CONTROL OFFERED BY COMPANY.

THESE LIMITATIONS ALSO APPLY TO ANY OTHER PERSON, INCLUDING, BUT NOT LIMITED TO, ANY OF THE HEIRS, SUCCESSORS OR ASSIGNS CLAIMING RIGHTS DERIVED FROM THE AFOREMENTIONED RIGHTS.

 

19. General Provisions

 

a. Headings: The headings in the Terms and any Messaging Services Agreement are inserted for convenience only and shall not be used to define, limit or describe the scope of such Messaging Services Agreement, the Terms or any of the obligations set forth in them. The singular shall include the plural, and vice versa, as the context requires.

b. No Waiver: The failure of the Company to enforce at any time any of the provisions of the Terms or any applicable Messaging Services Agreement or to require at any time performance by you of any of its provisions, shall in no way be construed to be a waiver of any such provision or the right of the Company to enforce each and every provision in accordance with the Terms and any applicable Messaging Services Agreement. The waiver by the Company of any of the provisions of the Terms or any applicable Messaging Services Agreement, shall not operate or be construed as a waiver of any subsequent breach. No provision of the Terms or any applicable Messaging Services Agreement may be waived by the Company unless in writing.

c. Severability: The invalidity of all or any part of any provision of the Terms or any applicable Messaging Services Agreement shall not render invalid the remainder of such provision or any other provision of these Terms. If any provision of these Terms is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

d. No Third Party Beneficiaries: Customer agrees that, except as otherwise expressly provided in the Terms or any applicable Messaging Services Agreement, there are no third party beneficiaries to the Terms and any applicable Messaging Services Agreement, including, but not limited to, any Patient and any private or public insurance company or payor of medical benefits that is not contracting with the Company in connection with the Service as a Customer.

e. Assignment: You may not may assign your rights or delegate your duties under this Agreement to any other person or entity. If Sense Health or any Successor Company, as defined in this Section, shall at any time be merged or consolidated into or with any other entity, or if substantially all of the assets of Sense Health or any such Successor Company applicable to provision of the Services shall be sold or otherwise transferred to another entity, the provisions of this Agreement shall be binding upon and shall inure to the benefit of the continuing entity or the entity resulting from such merger or consolidation or the entity to which such assets shall be sold or transferred (each a “Successor Company”) and any such assignment of this Agreement shall be binding upon, and this Agreement shall continue to inure to the benefit of, Company and the Successor Company, without your consent. This Agreement shall inure to the benefit of the parties’ successors, heirs and permitted assigns.

f. Language: The singular shall include the plural, and vice versa, as the context requires. All references to days are to calendar days, unless otherwise specified.

g. Complaints, Disputes and Governing Law: To resolve a Customer Complaint, Customers may write to us at support@wellpass.com and put in the subject line “Complaint”. For any complaints between you and the Company that cannot be resolved through an informal complaint resolution process or other disputes that you may have with the Company, you and the Company agree to submit to the exclusive jurisdiction of (1) the U.S. District Court for Southern District of New York, if such court has jurisdiction or, (2) if it does not have jurisdiction, then the courts of the State of New York, New York County for any disputes arising hereunder, except as otherwise set forth below. You and the Company hereby waive any objection they may now or hereafter have as to the venue of any such suit, action or proceeding brought in such court or that such court is an inconvenient forum. Your use of the Service is void where prohibited.

h. No Class Actions: TO THE EXTENT ALLOWED BY LAW, YOU WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.

i. Survival. Any terms, which, by their very nature extend beyond the expiration or termination of the Terms shall survive such expiration or termination.

 

20. Modifications To Terms: The Company reserves the right to update and revise the Standard Terms at any time. You can determine if the Standard Terms have been revised by referring to the “Last Updated” date at the top of this page, or if you write to us at support@wellpass.com and put in the subject line “Changes To Standard Terms”, the Company will inform you by email each time the Terms are updated. Your use of the Service constitutes your acceptance of these Standard Terms as amended or revised by the Company. The Company recommends that you review the Standard Terms regularly to ensure that you are aware of the terms and conditions of your usage of the Service.

 

Appendix A

Sense Health Business Associate Agreement (“BAA”)

If HIPAA requires you to enter into a business associate contract with us, then you and we are subject to this BAA. The provisions of this BAA will take precedence over the rest of the provisions of these Standard Terms to the extent of any conflict.

“Business Associate” has same meaning as the term “business associate” at 45 CFR 160.103. In reference to a party to this BAA, it means Company as defined in the Standard Terms.

“Covered Entity” has the same meaning as the term “covered entity” at 45 CFR 160.103. In reference to a party to this BAA, it means Customer as defined in the Standard Terms.

“HIPAA Rules” means the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

The following terms have the meaning set forth in the HIPAA Rules: breach, data aggregation, designated record set, disclosure, health care operations, individual, minimum necessary, notice of privacy practices, required by law, Secretary, security incident, subcontractor, unsecured protected health information, and use.

Obligations and Activities of Business Associate

Business Associate agrees to:

(a) Not use or disclose PHI other than as permitted or required by the BAA or as required by law;

(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by the BAA;

(c) Report to Covered Entity any use or disclosure of PHI not provided for by the BAA of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware;

(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information;

(e) Make available PHI in a designated record set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;

(f) Make any amendment to PHI in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;

(g) Maintain and make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;

(h) To the extent Business Associate is to carry out an obligation of Covered Entity under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation; and

(i) Make its internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary for purposes of determining Covered Entity’s compliance with Subpart E of 45 CFR Part 164.

Permitted Uses and Disclosures by Business Associate

(a) Business Associate may use or disclose PHI only as set forth in the Standard Terms, subject at all times to the requirements of this BAA and applicable law.

(b) Business Associate may use PHI to de-identify the information in accordance with 45 CFR 164.514(a)-(c).

(c) Business Associate may use or disclose PHI as required by law.

(d) Business Associate agrees to make uses and disclosures and requests for protected health information consistent with Covered Entity’s reasonable minimum necessary policies and procedures within the meaning of 45 CFR 164.502 (but Business Associate may terminate the Standard Terms and this BAA on reasonable notice to Covered Entity if Business Associate determines in its sole discretion that adherence to such policies and procedures would be unduly burdensome).

(e) Business Associate may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity except for the specific uses and disclosures set forth below.

(f) Business Associate may use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of Business Associate.

(g) Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

(h) Business Associate may provide data aggregation services relating to the health care operations of Covered Entity.

Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.

Permissible Requests by Covered Entity

Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity except where such requests to Business Associate are permitted under the HIPAA Rules.

Term and Termination

(a) Term. This BAA is coterminous with the Standard Terms.

(b) Termination for Cause. Covered Entity may terminate the Standard Terms and this BAA, if it determines Business Associate has violated a material term of the BAA and Business Associate has not cured the breach or ended the violation within any cure period specified by Covered Entity.

(c) Obligations of Business Associate Upon Termination.

Upon termination of this BAA, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:

1. Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;

2. Return to Covered Entity or destroy the remaining PHI that Business Associate still maintains in any form, in either case to the extent feasible;

3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;

4. Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out in the paragraphs (f) and (g) of the “Permitted Uses and Disclosures By Business Associate” section above that applied prior to termination; and

5. Return to Covered Entity or destroy the PHI retained by Business Associate (in either case to the extent feasible) when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

(d) Survival. The obligations of Business Associate under this Section shall survive the termination of this BAA.