Terms & Conditions

Terms & Conditions

The following Terms and Conditions (the “Ts&Cs”) are made part of and incorporated into your Order Form(s) with Kipu Systems LLC, a Florida limited liability company (“Kipu,” “we” or “us”).  You and we are collectively referred to as the “Parties.”

1. Definitions

For the purposes of these Ts&Cs, certain terms used in these Ts&Cs (whether or not capitalized) shall have the meanings assigned to them in Section 1 below. Terms not defined below or in these Ts&Cs (whether or not capitalized) have the definitions given to them in the Order Form or BAA, as applicable.

“Administrative Rights” means the rights to administer and direct the use of a Client’s account, including the authority to provide, request, issue, administer and limit the access rights to other User accounts issued to such Client’s Authorized Workforce, as well as the rights to integrate, connect, or otherwise share Your Information with, or receive Protected Health Information from, third parties through the Service.

“Ancillary Documentation” means any online knowledge base, training materials, documentation, presentations, instructions, online or offline manuals, user guides, referencedocuments, screenshots, videos, recorded webinars, and like information, as updated from time to time, provided in connection with your use of or made accessible via the Service.

“API Developer Terms” means those terms and conditions, available online at https://www.kipuhealth.com/api-terms/, as updated from time to time, applicable to software providers that Client requests and authorizes Kipu to work with to mutually develop a customized application program interface (the “Kipu API”) to integrate one or more of software provider’s software applications into the Services. 

“Authorized Workforce” means those natural persons who are members of your Workforce who you have identified (by their legal names, and the legal names of their employers) in your account as authorized to access the Service on your behalf.

“BAA” means the Business Associate Agreement, available online at https://www.kipuhealth.com/baa/, as updated from time to time.

“Beta Features” means any component of the Service not generally available to all Clients and clearly designated as beta, pilot, limited release, developer preview, non-production or description of similar import, or by a notification to you.

“Client” means the legal organization that executed one or more Order Forms.

“Clinical Data Exchange” means the exchange, with your Consent, of Protected Health Information (and Your Personal Information as necessary) between You and covered entities (and their business associates) for any permitted purpose, including, to the extent applicable, care coordination, performance or quality measurement programs, and risk adjustment, and other treatment, payment or health care operations purposes.

“Confidential Information” means any information relating to our business, financial affairs, current or future products or technology, trade secrets, workforce, customers, or any other information, including Ancillary Documentation, that is treated or designated by us as confidential or proprietary, or would reasonably be viewed as confidential or as having value to our competitors.  “Confidential Information” does not include information that we make publicly available or that becomes known to the general public other than as a result of a breach of an obligation by you. “Confidential Information” does not include Protected Health Information.

“Consent” means consent or authorization by a user of the Service allowing us to take actions described under these Ts&Cs and/or Terms of Use, which the user of the Service may give in an electronic communication to us or by use of the features of the Service (such as “share,” “transmit,” “refer,” “authorize,” “opt-in,” “agree” or toggling or selecting an action through a settings or activation page located within the Service, and the like).  Such Consent may apply to an individual case or situation, or may apply globally or programmatically based on variables that apply to an overall situation or circumstance (whether through a settings or preference page, a global “opt-in” or otherwise).

“Credentials” means any unique identifier, password, token, credential, any combination thereof, or other means we may utilize from time to time for authorizing access to all, or any portion of, the Service.

“De-Identified Health Information” means Protected Health Information that has been de-identified in accordance with the provisions of the Privacy Rule.

“De-Identify” means, with respect to Protected Health Information, means to make such Protected Health Information into De-Identified Health Information.

“HIPAA” means the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and the Security Rule, as amended.

“Live Date” means the date of completion of all live requirements for Client’s selected Service(s) as defined in the project plan established by and between Client and Kipu for such Service(s); or, in the absence of a project plan, the generation of the first patient medical record number in the electronic medical record Service, when the first User is granted access to the revenue cycle management/billing Service, and the generation of the first client record in the customer relationship management Service, as applicable.  In the event you are using the customer relationship management Service solely to track referral sources, then in the absence of a project plan, the Live Date for the customer relationship management Service means the date of our delivery of business development training to you.  

“Personal Information” means information that includes an individual’s name, contact information, government identifiers, or includes identifiers that could reasonably be anticipated to identify an individual personally by an anticipated recipient.

“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E, as amended.

“Protected Health Information” has the meaning given it in the Privacy Rule.

“Security Rule” means the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR Part 160 and Part 164, Subparts A and C, as amended.

“Service” means our electronic medical record (“EMR”), revenue cycle management, customer relationship management, and related services, including our messaging services, practice management services, and other operations workflow solutions, each as provided by us to youunder an Order Form, including any updates, upgrades, modifications, enhancements, and improvements developed thereto that are not separately priced and marketed.

“Service Agreement” or “Terms of Service” means these Ts&Cs (including any and all Exhibits) together with your Order Form, BAA, TOU and the TPTOS, as each may be updated or amendedfrom time to time.  

“Super Administrative Rights” means those Administrative Rights granted to a user with the assigned role of Super Administrator. A Super Administrator must be registered to access and use the Service with a company domain email.  In order to access the Service, a Super Administrative User may be required to authenticate both email and cell phone via two-factor authentication. 

“Term” means the length of time the Service Agreement is in effect until it expires or isotherwise terminated as provided in the Service Agreement. 

“Terms of Service” or “TOS” means Service Agreement (as defined above), as updated from time to time.  

“Terms of Use” or “TOU” means our terms and conditions for a user’s access to and use of the Service, as updated from time to time.

“TPTOS” means the Kipu Third Party Terms of Service, available online athttps://www.kipuhealth.com/tptos/, as updated from time to time.

“User” (capitalized) means a natural person who has been authorized, pursuant to the Ts&Cs, to access the Service on your behalf; a “user” (un-capitalized) shall mean any user of the Service.

“Workforce” means a Client’s employees, agents, principals, volunteers, trainees, contractors, and other persons whose conduct, in the performance of work for Client, is under the direct control of such Client, whether or not they are paid by the Client. This includes third-party companies with which you may contract for services, including but not limited to third-party billers, information technology professionals, and any other service provider that performs services on your behalf.

“You” or “your” means the Client.  

“Your Health Information” means Protected Health Information that you or your Workforce input or upload onto the Service, or that we otherwise receive from you or on your behalf from your patients, authorized service providers, or third-party partners pursuant to these Ts&Cs(including Section 8.2.6).

“Your Information” means information that you or your Workforce input or upload onto the Service, including Your Personal Information and Your Health Information.

“Your Personal Information” means Personal Information that you or your Workforce enter or upload onto the Service.

In addition, the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The word “or” shall be construed to have the same meaning and effect as “and/or.” The words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to these Ts&Cs. The headings used in these Ts&Cs are used for convenience only and are not to be considered in construing or interpreting these Ts&Cs.

2. Grant of Right to Use the Service

2.1 We grant to you and you accept a non-exclusive, non-transferable (except as expressly permitted in Section 22.2), limited right for your Authorized Workforce to access and use the Service during the Term, subject to your full compliance with the terms and conditions set forth in the Service Agreement and as described in the Ancillary Documentation. You will not: (a) use the Service for time-sharing, rental or service bureau purposes; (b) make the Service, in whole or in part, available to any other person, entity or business; (c) copy, reverse engineer, decompile or disassemble the Service, in whole or in part, or otherwise attempt to discover the source code to the software used by the Service; or (d) modify, combine, integrate, render interoperable, or otherwise access for purposes of automating data conversion or transfer, the Service or associated software with any other software or services not provided or approved by us. You will obtain no rights to the Service except for the limited rights to access and use the Service expressly granted by the Service Agreement. You are responsible for ensuring that your Authorized Workforce is aware of and agrees to the terms of the Service Agreement.  

2.2  The Service may include access to certain third-party software, services, data or applications that require that you enter into separate agreements with third parties.  Your access to such third-party software services shall be subject to the TPTOS at all times.  We may also make available optional services, either directly or through integrations with the Service, provided by third parties, such as billing, electronic prescribing, clinical laboratory interfaces, reporting services and verification of benefit services, among others as further contemplated in Section 2.3 below. You consent to the TPTOS and will comply with and, upon request, execute, any agreements or acknowledgments that may be required for the use of such software or services, and hereby agree to comply with the terms of any terms of use, license or other agreement relating to third-party products included in the Service or made accessible to you through the Service.  Additionally, your use of the Service or of such third-party products or services will constitute your agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.

2.3 We may also present to you, through the Service (including via emails, displays or advertisements) or through the use of Your Information, the opportunity to learn about, access, integrate with, or otherwise use services operated by third parties (each a “Third-Party Service”), some of which may be our affiliates. If you choose to sign-up for or utilize a Third-Party Service, that Third-Party Service may be able to access Your Information. Additionally, we may allow you to access the Third-Party Service, or integrate the Service you receive from us with such Third-Party Service using your Credentials that allow you to receive services or information from such Third-Party Service. Although we may receive remuneration from the operators or sponsors of these Third-Party Service, we do not endorse any Third-Party Service and you are responsible for evaluating any Third-Party Service prior to signing-up for, accessing, or integrating them (including any information) with the Service you receive from us.

2.4 We are not responsible for the quality or efficacy of any Third-Party Service, or their information privacy or security practices, and we have no responsibility for the information, goods or services offered or provided by the operators of such Third-Party Service, or for the manner in which they conduct their operations. Your use of Third-Party Service and the materials, information, goods and services offered by them is entirely at your own risk, and is subject to the terms of use of the third parties operating or providing them, if any. You should assume that any Internet page or other material that does not bear an official Kipu logo is provided by a third party. You should review the applicable terms of any agreement, terms of use and privacy policies of any Third-Party Service, since they are subject only to the agreements you have with the operators of such Third-Party Service, and not covered by these Ts&Cs. Further, the Third-Party Service may use Your Information in a way that we would not. You further acknowledge that your use of any Third-Party Service is on an “as-is” basis and is further subject to the TPTOS to which you consent by entering into these Ts&Cs.

2.5   The Service may also include open source components, and your use of any such open source components is governed by, and subject to, the terms and conditions of the respective open-source license(s) (copies of which will be provided to you upon written request). 

3. Access to the Service

3.1 Access Rights of Clients and their Authorized Workforce

3.1.1  Client. The Client is the owner of all User accounts for Client’s Authorized Workforce. The Client may delegate Administrative Rights and Super Administrative Rights to one or more members of the Client’s Authorized Workforce (each, an “Administrator” or “Super Administrator”, as applicable), but the Client remains responsible for all activity occurring under its Useraccounts.  Client is therefore party to the TOU for all purposes and shall be subject to all of the provisions that are applicable to the person addressed as “you” in the TOU. 

3.1.2  Authorized Representatives. For purposes of taking any action with respect to the Service, Client represents and warrants that (a) its Super Administrators have the authority to act on such Client’s behalf either as owner/principal or as a member of such Client’s Authorized Workforce (each, an “Authorized Representative”), (b) the information an Authorized Representativesubmits to us is complete and accurate, and (c) its Authorized Representativeshave the authority to enter into the Service Agreement on behalf of such Client and bind such Client to the covenants, obligations, restrictions, limitations, acknowledgements, Consents, representations, warranties, grants, waivers and releases contained in the Service Agreement. 

3.1.3 Your Workforce. You may permit your Authorized Workforce to use the Service on your behalf, subject to the terms of these Ts&Cs and TOU. You will:

3.1.3.1  require each member of your Authorized Workforce to have and use unique Credentials, and you will provide the legal name(s) of each such member for which you are seeking Credentials;

3.1.3.2 ensure the members of your Authorized Workforce comply with the requirements of these Ts&Cs and the TOU governing their access to and use of the Service;

3.1.3.3  take appropriate disciplinary action against any member of your Workforce who violates the Ts&Cs and/or TOU; and

3.1.3.4 ensure that only the person to whom a specific set of Credentials have been assigned accesses the Service with such Credentials.

3.1.4 No Third-Party Access.  Except as required by law, you will not permit any third party (other than persons who satisfy the definition of Authorized Workforce, and in all cases comply with the TOU) to use or access the Service without the prior written consent of Kipu’s CEO. Nor will you authorize or assist any person or entity in accessing, or attempting to access, any portion of the Service via any means other than a commercial browser (such as Internet Explorer, Mozilla Firefox, Chrome, iOS or Android) or a mobile app that we have authored and provided to you. You will promptly notify us of any order or demand for compulsory disclosure of health information if the disclosure requires access to or use of the Service. You will cooperate fully with us in connection with any such demand. You will also notify us if any person or entity, whether or not a member of your Authorized Workforce, (a) attempts to access the Service by any means other than a commercial browser, (b) claims to offer a service or system that “integrates with” our Service or (c) requests to use your Credentials or requests that you obtain Credentials in order to access the Service in a manner that would violate these Ts&Cs or the TOU if you engaged in such activity.

3.1.5 Patient Portal Access. The EMR Service may make available to your patients portions of their medical records through a web-based personal health record portal that we operate on your behalf (the “Patient Portal”). You areresponsible for granting Patient Portal access privileges to your patients, either on an individual basis or for your entire patient population. You are also solely responsible for the information that you make available through the Patient Portal.

4. Term

The term of the Service Agreement begins upon the first Order Effective Date and continues until all Order Forms have expired or the Service Agreement is otherwise terminated as provided in these Ts&Cs (the “Service Agreement Term”).  The term of each Order Form begins upon the Order Form Effective Date and continues for the duration stated in such Order Form (each an “Initial Order Form Term”).  The Order Form Term shall automatically renew for its duration (each a “Renewal Order Form Term”), unless you otherwise notify us in writing at least ninety (90) days prior to the expiration of the then-current Order Form Term. As used in this Service Agreement, “Order Form Term” includes the Initial Order Form Term and each Renewal Order Form Term.  

5. Fees and Charges

5.1 Subscription Fees

You agree to pay all fees for the Service(s) (the “Subscription Fees”), as set forth in the Order Form(s), to which you have access during the Term of the Service Agreement. In light of the fact that we incur the expense of hosting your instance of the Serviceimmediately after the Order Effective Date, Subscription Fees commence on the earlier of the Live Date or the Service Start Date as specified in your Order Form, even if your implementation is not then yet complete.  We reserve the right to increase your Subscription Fees by the greater of the annual increase in the CPI or three percent (3%)upon each anniversary of the Order Effective Date.  You also agree to pay, at our then current rates, for all goods, services, or features that you utilize, or otherwise request from us and that are not included in your Service Agreement (“Miscellaneous Charges”).  We will notify you of the applicable Miscellaneous Charges before performing services or enabling features to which a Miscellaneous Charge will apply. We reserve the right to change the Miscellaneous Charges at any time, or to add new fees or charges. 

5.2 Implementation Fees

The implementation of your instance of the Service is considered complete and accepted by you upon the Live Date.  The Implementation Fee is considered fully earned by us on the Order Effective Date even if an installment payment plan for such fees is offered to you.  All remaining installments of the Implementation Fee remain due and payable if the Service Agreement is terminated for any reason after the Order Effective Date.

5.3 Acquisitions 

Should Client acquire an existing Kipu client, Client’s monthly subscription fee shall increase by the greater of either 1) $2,000 or 2) the average of the acquired facility’s last three (3) months of Kipu invoices less a fifteen percent (15%) percent discount. An implementation statement of work may be presented to Client for existing facilities if there are excessive person-hours to make acquired facility workflows aligned with Client’s processes and standards.

5.4 Payment

Unless otherwise set forth in the Order Form, the Subscription Fees and any Miscellaneous Charges shall be paid within fifteen (15) days following the date of invoice at the address set forth in the invoice. Payments are non-refundable.

5.5 Late Charges

In the event payment is not made by the due date, we may discontinue your Service or charge the greater of $250 per month per invoice or a five percent (5%) late fee for each month each invoice remains unpaid, as allowed by law. A reconnection fee equal to one (1) month’s Service Fee shall be assessed to re-establish connection after termination due to non-payment, in addition to all unpaid Subscription Fees.  Client shall pay all costs of collection, including attorneys’ fees, if any.  

5.6 Taxes

All charges and fees shall be exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes now in force or enacted in the future, and you agree to pay any tax (excluding taxes on our net income) that we may be required to collect or pay now or at any time in the future and that are imposed upon the sale or delivery of items and services purchased under an Order Form. The amount we charge you for a Service may include certain taxes or charges applicable thereto your purchase. If any tax or charge applicable is not charged by us, you acknowledge that you are solely responsible for paying such tax or other charge.

5.7 Other Charges

You are responsible for any charges you incur to use the Service, such as telephone and equipment charges, and fees charged by third-party vendors of products and services.  We may also pass through our cost for any third party products and services that are included as part of, interface with or are otherwise incorporated into the Service. To the extent Kipu enables you to send or receive SMS messages, the standard text messaging rates or other carrier charges may apply to such use. Further, to the extent the Service has push notification capability, by downloading the messaging app and clicking to allow push notifications, YOU CONSENT TO RECEIVE COMMUNICATIONS, INCLUDING COMMERCIAL COMMUNICATIONS FROM OR ON BEHALF OF KIPU AND OUR PARTNERS.

5.8 Payment Information; Method of Payment

For the RCM Service, Client agrees to complete and execute an authorization for direct payment via ACH in order to authorize Kipu to collect undisputed amounts due via automatic clearinghouse transfer (ACH) directly from Client’s bank account. By providing payment information to us for any Service, you hereby represent and warrant that you are authorized to use the payment method you provide, that such information is accurate, and that we are authorized to charge you for the applicable Service using the established payment method and the information you provided. You are solely responsible for promptly notifying us of any changes to your payment information.

5.9 Third-Party Payment

Fees and charges may be paid by a third party, with the consent of Kipu, upon your execution of an authorization letter. Such third-party payment will remain in effect for the entire term that the third party provides services to you. You acknowledge and agree that (a) during such term, you shall not be billed by Kipu for use of the Service, the cost of which shall be paid for entirely by the third party, and (b) that such third party shall not at any time attempt to bill, charge or recoup in any manner any fees and costs due and payable.

6 Professional Responsibility

6.1  Professional Responsibility.  You are solely responsible for the professional and technical services you provide. We make no representations concerning the completeness, accuracy or utility of any information in the Service, or concerning the qualifications or competence of persons who placed it there. We have no liability for the consequences to you or your patients of your use of the Service.

Kipu does not warrant the accuracy of codes or other data contained in the Service. The clinical and billing & coding information contained in the Service is intended as a supplement to, and not a substitute for, the knowledge, expertise, skill, and judgment of physicians, pharmacists, billers & coders, or other healthcare professionals in patient care and related fields.

You agree that the sole and exclusive responsibility for any medical decisions or actions with respect to a patient’s medical care and for determining the accuracy, completeness or appropriateness of any billing, clinical, coding, diagnostic, medical or other information provided by the Service resides solely with the health care provider. Kipu does not assume any responsibility for how such materials are used. The choice with regard towhen and how to use the Service for patient medical records is the health care provider’s responsibility, and the Service and any database are to be used at the health care provider’s discretion. You understand and agree that the Service may provide possible coding options and does not “recommend,” “suggest,” or “advise” proper coding decisions and that the responsibility for the medical treatment, and any associated decisions regarding billing for medical services, rests with the health care provider and revolves around the health care provider’s judgment and the health care provider’s analysis of the patient’s condition. In addition, you agree that any prompts or alerts contained in the Service are tools available to the health care provider for augmenting the documentation of the patient’s electronic medical records, and are not intended in any way to eliminate, replace or substitute for, in whole or in part, the health care provider’s judgment and analysis of the patient’s condition.

6.2  Clinical Support Information; Information Exchange.  We may provide information to assist you in clinical decision-making. This may include information and reminders concerning drug interactions, allergies, dosages, as well as general health-care related information and resources. We may also provide forums for our users to exchange information. 

You agree that the information and materials available through the Service are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your professional judgment. Information may be placed in the Service by us and by third parties beyond our control. We are not responsible for the accuracy or completeness of information available from or through the Service. You assume full risk and responsibility for the use of information you obtain from or through the Service, and neither we nor any of our licensors or data providers are responsible or liable for any claim, loss, or liability arising from use of the information. 

We do not recommend or endorse any provider of health care or health-related products, items or services, and the appearance of materials in the Service relating to any such products, items or services is not an endorsement or recommendation of them. You will review the definitions, functionality, and limitations of the Service, and make an independent determination of their suitability for your use. We and our suppliers, partners and licensors disclaim all warranties, whether expressed or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the Service for any purpose.

7 Your Information; Accuracy

You shall have all responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of Your Information and Kipu shall not be responsible or liable for the deletion, correction, destruction, damage, loss of use, or failure of any of Your Information, regardless of the cause or reason therefor.

You represent and warrant to Kipu that all data, information, documentation and other material provided under your account or by you are true, correct and accurate. You represent and warrant that all encounter data that you or your Authorized Workforce uploads or inputs into the Servicefor payer or patient reimbursement has actually been performed on patients, is entirely accurate and truthful, is properly documented and meets all payer requirements including medical necessity.  

8. Use of Information

8.1 Purpose of EMR Service.  The purpose of the EMR Service is to store Your Health Information and (i) to make it available to you and your Authorized Workforce for any legal purpose, including treatment, payment and health care operations; (ii) to facilitate the sharing of individuals’ health information among users and other parties with whom you or your Authorized Workforce members elect to share such information, and (iii) to make health information available to your patients through the Patient Portal. You may make Your Health Information accessible to other users of the Service, other individualsand entities, or to your patients through the Service for these purposes. 

8.2 Use of Information.  As your business associate under the BAA, you acknowledgeand agree that we may, for example, use and disclose Your Information as follows:

8.2.1  We will permit unrestricted access to Your Health Information to you and your Authorized Workforce. You are responsible for ensuring that your use of Your Health Information is consistent with the relevant legal restrictions.

8.2.2 We will permit access to Your Health Information to your patients to whom you have enabled to receive access through our Patient Portal or any integrated third-party service.

8.2.3 We will permit access to Your Information by health care providers, covered entities and their business associates to whom you have Consented to provide access to the Service and who have otherwise agreed to integrate with our systems. We will obtain your Consent before we make Your Health Information available to other providers, covered entities and their respective business associates. You acknowledge that once we have granted access rights to another provider or covered entity (or their respective business associates), we have no control over the uses and disclosures that such person or entity makes of Your Health Information, and the recipient may be subject to its own legal or regulatory obligations (including HIPAA) to retain such information and make such information available to patients, governmental authorities and others as required by applicable law or regulation.

8.2.4 We may use Your Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Service makes available. 

8.2.5  We may use Your Health Information and Directory Information (defined below) to contact your patients on your behalf for any purpose for which you would be permitted to contact them, including:

(a)  For treatment and health care operations messages, including sending appointment notifications (such as appointment requests, confirmations, reminders, cancellations and the like) and messages about currently prescribed medications (including refill reminders), or post-visit treatment satisfaction surveys, invitations and administrative messages concerning Patient Portal access, and the like;

(b)  With your Consent, to request an authorization on your behalf from your patients to use or disclose their health information for any purpose for which use or disclosure may be made with an appropriate authorization, including research purposes. You agree that we may also use and disclose your patients’ health information as permitted by any such authorization;  and

(c)  To provide information about health-related products or services that you provide, or that we provide on your behalf as your business associate.

8.2.6 From time to time we may incorporate information we receive from your authorized service providers (including Third-Party Services as discussed in Sections 2.2 and 2.3), our third-party partners, or covered entities (and their business associates) who are providing or paying for medical services for one or more of your patients, into the Service we provide to you. Such information may include, without limitation, clinical information such as lab results, imaging results, eligibility information, prior authorizations and prescription history; and shall, upon incorporation into the Service, be treated as “Your Health Information” for all purposes hereunder. You hereby authorize us to request and receive such information on your behalf from such authorized service providers or our third–party partners.

8.2.7  We may use Your Information to provide you with notifications regarding Your patients’ potential eligibility for certain programs, including savings programs, coupons, sampling, educational, safety, adherence or treatment support materials or other programs which you may choose to share with your patients (“Patient Support Programs”) as well as to administer the Support and Assessment Resources more fully described in Section 9 below. These notifications and materials are not a substitute for your professional medical judgment pertaining to the appropriateness of any such program for a given patient and you should discuss any such programs or materials with your patients directly. We may receive remuneration from the funding sources or sponsors for presenting you with Support and Assessment Resources or displaying their advertisements. In connection with offering or operating such Patient Support Programs or Support and Assessment Resources, we may share personally identifiable information about you for the purposes of program administration, and for assessing program eligibility, effectiveness or performance. We will only share such information with partners who are subject to confidentiality obligations. Additionally, we may disclose Personal Information about you to administrators of the Patient Support Programs or Support and Assessment Resources for recordkeeping, corporate integrity or regulatory reporting purposes.

8.2.8  We may use or disclose Your Health Information for other purposes, from time to time; provided that we will not make or permit any such use or disclosure that would violate applicable law or regulation if made by you or your business associate.

8.3 Responsibility for Misuse by Other Users

You acknowledge that in granting access to the Service, we will rely on the assurances of the recipients of the information as to (i) their identity and credentials, (ii) the purposes for which they are accessing the system, and (iii) the nature and extent of the information to which they will have access. You acknowledge that, while the Service will contain certain technical safeguards against misuse of the Service, it will rely to a substantial extent on the representations and undertakings of users of the Service. You agree that we will not be responsible for any unlawful access to or use of Your Health Information by any user resulting from the user’s misrepresentation to us or user’s breach of the Service Agreement.

8.4 Specially Protected Information

We apply the standards of the Privacy Rule in permitting access to the Service. You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Health Information may properly be disclosed for the purposes set forth in the Ts&Cs and BAA, subject to the restrictions of the Privacy Rule and applicable law, including those laws that may be more restrictive than the Privacy Rule. In particular, youwill:

8.4.1 not make available to other users through the Service any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users or under law);

8.4.2 obtain all necessary consents, authorizations or releases from individuals required for making their health information available through the Service for the purposes set forth in the Ts&Csand the BAA;

8.4.3 include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Service; and

8.4.4 not place in the Service any information that you know or have reason to believe is false or materially inaccurate.

8.5 Health Record Sharing

With your Consent, we may make parts of your online heath record for any patient you designate accessible to any other user of the Service or any third party whom you approve, but subject to the technical limitations of the Service generally. You may revoke your Consent with respect to any other user at any time. While your Consent is in effect, an approved user may only view any health record you have designated for his or her access. If you revoke your Consent, the approved user will continue to have the ability to view the health record in the form in which it existed at the time you revoked your Consent, but will not be able to view changes made to the record thereafter. The same rules apply to your use of another user’s record who approves access by you. You and your Workforce are fully responsible for the information in any chart that you share. You or your Workforce should not share patient information that violates any state or federal laws. In any event, but especially in cases of potential fraud, misuse or abuse of the Service, we reserve the right, in our sole judgment, to revoke, remove, cancel or deny any request to share online health records as part of the Service.

8.6 Care Coordination and Clinical Data Exchange

We will enable Clinical Data Exchange between You and your business associate(s) or those covered entities (and their respective business associates), including health systems, Accountable Care Organizations, payers, and laboratories who desire to transmit such data to you with respect to patients they have a treatment or payment relationship or with whom you have Consented to provide such data (all third parties collectively referred herein as “Transmission Partner”). While such transmission integrations are in effect, such Transmission Partner may send and receive clinical data to and from your account on a routine and recurring basis. You may disable an integration with any Transmission Partner by contacting us through one of the methods described at www.kipuhealth.com, but any clinical data already received by such Transmission Partner will remain in its possession, subject to the terms of your independent agreements with such Transmission Partner, if any. You are solely responsible for ensuring that You have all necessary consents from Your patients applicable to the sharing of any of Your Health Information under applicable law with respect to each Transmission Partner with whom you have Consented to share any information under this Section 8.6.

8.7 Providing Physician Data to Payers and Others

You agree that we may provide Your Personal Information and information concerning your practice to any medical group, independent practice association of physicians, health plan or other organization with which you have a contract to provide medical services, or to whose members or enrollees you provide medical services. Such information may identify you, but will not identify any individual to whom you provide services. Such information may include aggregated data concerning your patients, diagnoses, procedures, orders and the like.

9. Support and Assessment Resources; Advertising

We may also present to you, through the Service or through the use of Your Information, the opportunity to utilize or engage in clinical decision support or assessment resources or informational programs (“Support and Assessment Resources,” which may also include, for the avoidance of doubt, Patient Support Programs (as previously described in Section 8.2.7)). We may also place advertisements concerning the products and services of third parties throughout the Service, so that you see them when you use the Service. Such Support or Assessment Resources or advertisements may be funded or sponsored by third parties, and may include branded or unbranded content about medical substance abuse related conditions, treatments and products, or safety and regulatory information resources. They may also include opportunities to participate in informational surveys or studies, or to discuss with your patients potential beta programs, trials or other research programs, which may be funded by government grants. We may receive remuneration from the funding sources or sponsors for presenting you with Support and Assessment Resources or displaying their advertisements. In connection with offering or operating such Support and Assessment Resources or delivering advertising, we may share personally identifiable information about you for the purposes of assessing program eligibility, effectiveness or performance with partners who are subject to confidentiality obligations. Additionally, if you choose to engage or utilize one of the Support and Assessment Resources, you may be asked to provide personal information that may be used to supplement Your Information as well as information gathered as part of the program itself (e.g., responses to surveys). This information will be used to provide the content or services described in the Support and Assessment Resources or provide you with any gift or honoraria associated with the program. If you receive remuneration for participating in a sponsored survey, for example, we may be required to provide the funding source or sponsor with information about you for its recordkeeping, regulatory reporting or measurement purposes. You acknowledge and agree that we or our authorized representatives may contact you via email, phone, or text message at any time for any reason.

10. Intellectual Property Rights

10.1 De-Identified Information

In consideration of our provision of the Service, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Information pursuant to the BAA. You agree that we may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are a principal consideration for the provision of the Service, without which we would not enter into this Service Agreement.

10.2 Other Works and Information

You hereby grant to us a nonexclusive, royalty-free, fully paid-up, perpetual, irrevocable, worldwide and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any information, material or work product – other than Your Information that has not been De-Identified – you provide to this site or the Service. You agree that we may use, disclose, market, license, and sell such information and works, including derivative products, without restriction. This includes, for example, custom templates that you create using the Service, and information (other than Your Information that has not been De-Identified) that you contribute to forums, discussion groups and the like. You may provide content or material to this site by uploading such content into the Service, participating in forums, discussion groups and the like, or by using the site to create custom templates and the like. Furthermore, you agree that we may use, disclose, market, license and sell such material or content, and that you have no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof. You warrant and agree that any material you provide will not infringe or otherwise violate the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law.

10.3 Trade Secrets

In order to protect our trade secrets herein, you affirm that neither you nor any of your employers, officers, executives, shareholders, partners, Workforce, or other business associates of any kind are currently or will become for a period of two (2) years after termination or expiration of any license granted to access or use the Service, either directly or indirectly, an officer, executive, shareholder, partner, employee, independent contractor, advisor, consultant, or any other business associate of any kind of any business entity who does currently operate in or intends to enter into competition with us during the period of time you are licensed to use the Service. If we come to know or have reasonable cause to believe that you are in violation of this affirmation, we reserve the right to immediately, permanently, and without notice terminate your access rights and privileges.  Any such use shall subject you, as well as any of your officers, executives, shareholders, or partners, to legal action, which may include both civil and criminal penalties, as applicable. You acknowledge that any such civil action may include, but is not limited to, relief sought in the form of: injunctive relief; actual, punitive, statutory, or liquidated damages; any amount of unjust enrichment accrued as a result of such use; and attorney’s fees.

You acknowledge that all Ancillary Documentation is the confidential information of Kipu, and you will not use or disclose Ancillary Documentation to any person or entity who is not specifically authorized in writing by Kipu to receive it. You may not use or disclose any Ancillary Documentation except to the extent that such use or disclosure of such Ancillary Documentation relates to your use of the Service for your own site-level administration.  You will use your best efforts to safeguard the Ancillary Documentation and protect it against disclosure, misuse, espionage, loss, misappropriation, and theft.

You will not reverse engineer, decompile, disassemble, or otherwise attempt to discover or reduce to human readable form the source code of the Service, except to the extent allowed under any applicable law. Any attempt to do so must utilize a clean room design. If applicable law permits such activities, any information so discovered must be promptly disclosed to us and shall be deemed to be our confidential proprietary information.  You will not access the service for the purposes of copying the flow, process, or any other Intellectual Property belonging to us for the purposes of incorporating any such Intellectual Property into a competitive product. If you access the service on behalf of or for the benefit of a competitor or for any competitive purposes, you must immediately cease such access and report your unauthorized access to Kipu at clientservices@kipuhealth.com.

In the event that, at the conclusion of any resulting litigation, the Service is held to have been legitimately used in any manner to derive a new product, that derivative product may then only be used for noncommercial purposes and may not be marketed, distributed, or otherwise made available in any way. This provision shall not be read to authorize, explicitly or implicitly, use of the Service in such a manner.

10.4 Copyright and Ownership

All content included in or made available through any Kipu product or service, such as input screens and forms, charts, text, graphics, logos, button icons, images, audio clips, digital downloads, and data compilations is the property of Kipu, or its content suppliers, and is protected by United States and international copyright laws. The compilation of all content included in or made available through the Service is the exclusive property of Kipu and is protected by U.S. and international copyright laws. All content posted on the Service by you must comply with U.S. copyright law.

The Service is the intellectual property of and is owned by Kipu. The structure, organization, flows, processes, and source code of the Service (collectively, “Intellectual Property”) are the valuable trade secrets and confidential information of Kipu. The Service is protected by law, including but not limited to the copyright laws of the United States and the Florida Uniform Trade Secrets Act, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Service. All rights not expressly granted are reserved by Kipu Health LLC.

To the extent that Ancillary Documentation includes intellectual property owned by Kipu, you agree that Kipu does not grant you any intellectual property rights to any such Ancillary Documentation. To the extent that Ancillary Documentation includes intellectual property owned by third parties, you will not use or disclose such Ancillary Documentation in contravention of any agreement between Kipu and the third party.

We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation of the Service. The look and feel of the Service, including the process and flows, are copyright ©2012-2022 Kipu Health LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without the express written permission of Kipu’s CEO. Portions may be Patent Pending.

11. Computer Systems

You agree and acknowledge that you will be required to acquire, install, configure and maintain all hardware, software and communications systems necessary to access the Service and go through all necessary training (your “Computer Systems“). Your Computer Systems will comply with the specifications from time to time established by us. You will ensure that your Implementation is compatible with the Service. If we notify you that your Computer Systems are incompatible with the Service, you will eliminate the incompatibility, and we may suspend Service to you until you do so.

12. Confidentiality

12.1  Confidential Information.  

12.1.1  You may not disclose our Confidential Information to any other person, and you may not use any Confidential Information except for the purpose of these Ts&Cs. Except as otherwise provided in these Ts&Cs, you may not, without the prior written consent of Kipu’s CEO, at any time, during or after the Term of these Ts&Cs, directly or indirectly, divulge or disclose Confidential Information for any purpose. In addition, except for the purposes of using the Service, you will not use Confidential Information for any other purposes. You will hold all Confidential Information in strict confidence and take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will disclose Confidential Information only to members of your Authorized Workforce who have a need to use it for the purposes of these Ts&Cs. You will inform all such recipients of the confidential nature of Confidential Information and will instruct them to deal with Confidential Information in accordance with the terms of these Ts&Cs. You will promptly advise us in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person, which may come to your attention.

12.1.2  You agree that we will suffer irreparable harm if you fail to comply with your obligations set forth in Section 12.1.1, and you further agree that monetary damages will be inadequate to compensate us for any such breach. Accordingly, you agree that we will, in addition to any other remedies available to us at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond.

12.2  Protected Health Information.  You agree to be bound by the terms and conditions of the BAA, which is available at https://www.kipuhealth.com/baa/ and is incorporated herein by reference, with respect to PHI.  

13. Suspension and Termination

13.1 Termination 

We may terminate the Service Agreement or any Order Form in the event you (a) fail to comply with the terms and conditions of the Service Agreement or any Order Form, and such failure remains uncured for twenty (20) days following our written notice to you, (b) access or use the Service beyond the scope of the rights granted or for a purpose not authorized by the Service Agreement, or (c) are, have been, or are likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any Service.  

13.2 Constructive Termination

In the event that Client constructively terminates an Order Form during an Order Form Term, Client shall pay to Kipu an amount equal to all monthly fees which would have been payable to Kipu for the remainder of the Order Form Term, calculated at the higher of (i) the average total monthly fee for the then-most recent twelve (12) month period or (ii) the average total monthly fee for the then-most recent three (3) month period.  Client shall be deemed to have constructively terminated the applicable Order Form(s) in the event that Client:

a. Discontinues or substantially discontinues use of the Service and replaces the Service with any other service that performs the same or similar functions;

b. For the EMR Service, substantially discontinues use of the EMR Service such that:

i. Client’s census count in medical record numbers drops below its past twelve (12) month average census by greater than fifty percent (50%); or

ii.  Client’s census count in medical record numbers drops below its trailing eighteen (18) month average census by greater than fifty percent (50%);

c. Permits access by any third party (or employee or agent thereof) engaged in, or planning to engage in, competition with Kipu to the Service, either by creating a user account for or otherwise allowing such third party to perform or observe any tasks performed in the Service.

Notwithstanding the terms of any prior Service Agreement, the early termination buyout fee for all Service Agreements for EMR Services entered into on or before July 7, 2017, shall be the greater of (a) the total of all patient fees, maintenance fees, and lab or API fees generated during the twelve (12) most recent full calendar months prior to termination; or (b) four (4) times all monthly fees generated during the three (3) most recent full calendar months prior to termination.

Upon notice of termination of the Service by you, whether actual or constructive as determined in Kipu’s sole discretion, any discounts, grants, fixed fee discounts, fixed monthly fee discounts, arrangements, DFI, or other concessions extended deviating from our standard pricing described in your Order Form shall be terminated for the remainder of the time that you continue to use the Service and incur monthly fees.

13.3 Termination in Event of Bankruptcy

We may terminate the Service Agreement upon written notice to you upon the filing of a bankruptcy petition by or against you, the appointment of a receiver for all or part of your business or operations, the assignment of all or substantially all of your assets for the benefit of creditors, your adjudication as being bankrupt by a court, if you become insolvent, or cease all or substantially all of your operations.  In the event of any such event occurring, you agree that no material, substantial or financial modifications to the Service Agreement may be imposed upon us without our written consent.  

13.4 Termination, Suspension or Amendment as a Result of Government Regulation

Notwithstanding anything to the contrary in these Ts&Cs, we have the right, on notice to you, immediately to terminate, suspend, or amend these Ts&Cs, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; or (c) if performance of any term of these Ts&Csby either Party would cause it to be in violation of law.

13.5 Judicial or Administrative Procedures; Credentialing

We may terminate your Service Agreement, and your access to the Service, immediately upon notice to you: (a) if you are named as a defendant in a criminal proceeding for a violation of federal or state law; (b) if a finding or stipulation is made or entered into that you have violated any standard or requirement of federal or state law relating to the privacy or security of health information in any administrative or civil proceeding; (c) you are excluded from participation in a federal or state health care program; (d) you cease to be qualified to provide services as a health care professional, or we are unable to verify your qualifications as such or (e) as otherwise set forth in the Service Agreement.

13.6 Suspension of Access

We may suspend access to the Service by you or any member of your Workforce immediately pending your cure of any breach of these Ts&Cs or the TOU, or in the event we determine in our sole discretion that access to or use of the Service by you or the member of your Workforce may jeopardize the Service or the confidentiality, privacy, security, integrity or availability of information within the Service, or that you or the member of your Workforce has violated or may violate these Ts&Cs or the TOU, or has jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the Service with any Credentials assigned to you or a member of your Workforce. We may terminate the access of any member of your Authorized Workforce upon termination or change in status of his or her employment with you. Our election to suspend the Service shall not waive or affect our rights to terminate the Service Agreement as permitted under these Ts&Cs.

13.7 Suspension and Termination for Non-Use

If your account does not show any new patients over the course of three (3) months, your account may be suspended in our sole discretion. User access to the Service will be denied and the data will be frozen. To reactivate a suspended account, you must contact clientservices@kipuhealth.com or the help desk. There is no charge to reactivate an account in good standing with no past-due balance.  If your account remains suspended for three (3) months and you have not contacted us to reactivate it, your account may be terminated in our sole discretion.

13.8 Obligations after Termination

Upon termination of the Service Agreement for any reason, you will (i) cease all use of the Service and (ii) pay the outstanding balance of any fees due to us. Upon cancellation or termination and full payment, we will prepare a copy of all patient records in PDF format and deliver it to you via either (i) secured hard drive (at cost) by courier to your contact address on file with us at that time or (ii) a dedicated SFTP site, and all of your content will be deleted from the Service if you accept delivery. If you do not accept delivery, we will store the data as custodian as required by law.  After your content has been deleted from the Service, it cannot be recovered. All provisions of the Ts&Cswhich, by their nature, should survive termination shall survive termination, including, but not limited to, Sections 1, 2.4, 5, 8.7, 10, 12, 14, 15, 19, 20, 21, 22.3, and 23 through 28.

14. Indemnification

You hereby agree to indemnify, defend, and hold harmless us and other users, and our and their respective affiliates, officers, directors, employees and agents, from and against any claim, cost or liability, including reasonable attorneys’ fees, arising out of or relating to: (a) the access, use or misuse of the Service by you or your Workforce; (b) any breach by you or your Workforce of any representations, warranties or agreements contained in the Service Agreement; (c) the actions of any person gaining access to the Service under Credentials assigned to you or a member of your Workforce; (d) the actions of anyone using Credentials assigned to you or any member of your Workforce that adversely affects the Service or any information accessed through the Service; and (e) your negligent or willful misconduct, or that of any member of your Workforce. Your indemnification obligations in these Ts&Cs (including this Section 14) are cumulative, and are not intended to, nor do they, limit your indemnification obligations elsewhere in the Service Agreement or at law, even if such obligations arise or are occasioned or triggered by a single assertion, claim, circumstance, action, event or transaction.

15. Disclaimer, Exclusion of Warranties, and Limitation of Liability

15.1 Carrier Lines

YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICE WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR, OR RELATING TO, THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.

15.2 No Warranties

ACCESS TO THE SERVICES AND THE INFORMATION CONTAINED ON THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION IN THE SERVICES, INCLUDING USE OF SMS MESSAGING FEATURES AND INACCURATE OR INCOMPLETE INFORMATION. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF WE HAVE BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. WE DISCLAIM ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SERVICES. NO KIPU EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES, CONDITIONS, OR LIMITATIONS CONTAINED IN YOUR SERVICE AGREEMENT.

15.3  Beta Features

If you access any Beta Features of the Service, you acknowledge that: (a) such features have not been made commercially available by Kipu; (b) such features may not operate properly, be in final form or fully functional; (c) such features may contain errors, design flaws or other problems; (d) it may not be possible to make such features fully functional; (e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (f) such features may change and may not become generally available; and (g) Kipu is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service. These Beta Features are provided “AS IS”, with all faults. You assume all risk arising from use of such features, including, without limitation, the risk of damage to your computer system or the corruption or loss of data. We may in our sole discretion discontinue Beta Features at any time, and may never make them generally available.

15.4 Other Users

YOU ACKNOWLEDGE THAT OTHER USERS HAVE ACCESS TO AND ARE USING OUR SERVICES AND THE ACTIONS OF SUCH OTHER USERS ARE BEYOND OUR CONTROL. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON THE SERVICES RESULTING FROM ANY USER’S ACTIONS OR FAILURES TO ACT.

15.5 Unauthorized Access; Lost or Corrupt Data

WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES OR EQUIPMENT BY PERSONS USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE SERVICES.

15.6 Limitation of Liability

NOTWITHSTANDING ANYTHING IN THE SERVICE AGREEMENT TO THE CONTRARY, OUR AGGREGATE LIABILITY UNDER THE SERVICE AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AGGREGATE FEES ACTUALLY PAID BY YOU UNDER THE SERVICE AGREEMENT FOR THE TWO (2) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM, UP TO A LIMIT OF $10,000 IN THE AGGREGATE. IN THE EVENT YOU RECOVER INSURANCE PROCEEDS PURSUANT TO YOUR INSURANCE, SUCH PROCEEDS SHALL CONSTITUTE AN OFFSET AGAINST ANY DAMAGES CLAIMED BY YOU. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

15.Disclaimer 

In no event shall Kipu be responsible for any penalties, damages, or other losses incurred by Client as the result of any delay or failure to perform under the Service Agreement by Kipu which was caused by Client.  

16. Insurance

You will obtain and maintain such policies of general liability, errors and omissions, and professional liability insurance with reputable insurance companies as is usually carried by persons engaged in your business covering the term of these Ts&Cs.

17. Compliance

17.1 You will comply with applicable laws, including laws relating to the maintenance of the privacy, security, and confidentiality of patient and other health information. You will not grant any user, including members of your Authorized Workforce, any rights to access or use our Service that they would not be allowed to have under applicable laws. We offer no assurance that your use of the Service will not violate any law or regulation applicable to you. To the extent that the Service allows you to send and/or receive SMS messages, you acknowledge that SMS messaging is not encrypted and represent that you have reviewed your organization’s use of this capability and determined that such use is compliant with all applicable laws and regulations, including but not limited to HIPAA and 42 CFR Part 2. You acknowledge that we may share Your Information with third parties if we determine in good faith that disclosure of Your Information is necessary to (i) comply with a court order, warrant or other legal process, (ii) protect the rights, property or safety of Kipu or others, (iii) investigate or enforce suspected breaches of the Service Agreement, or (iv) allow our third-party partners to comply with their obligations under federal or state law.

17.2 The Parties will each separately maintain effective compliance programs consistent with the relevant compliance guidelines set forth by the Office of the Inspector General of the Department of Health and Human Services. The Parties will cooperate with each other to provide accurate and full responses to any material inquiry or concern of either Party related to compliance.

17.3 Client warrants to Kipu on a continuing basis throughout the term of its Service Agreement that Client will not bill or claim payment in any form, directly or indirectly, from any government health care program or other third-party payer for the cost of any Kipu Services, including, without limitation, on a government cost report.

17.4 No payment to or receivable of Client or of any physician or licensed or specially trained non-physician who is credentialed with payers, linked to Client’s organization, and performs health services for Client’s patients (“Billable Provider) is assigned to Kipu, and Kipu is not the beneficiary of any such payment or receivable. All such payments and receivables (including, but not limited to, checks and electronic fund transfers) will be payable to Client or the Billable Provider and will remain the property of Client or the Billable Provider. Kipu will not endorse or sign any such check or instrument. Any lockbox or other account into which Client payments or receivables are deposited will remain in the name of, and under the sole ownership and control of, Client or the Billable Provider and subject only to the instructions of Client or the Billable Provider. Kipu will not be a signatory on or have any power to transfer or withdraw from any account into which Client or Billable Provider payments or receivables from any federally funded program are deposited.

17.5 Client and Kipu each warrant that neither it nor any of its personnel to its knowledge (i) has been convicted of any crime arising from claims or other transactions, financial relationships, or financial dealings in connection with health care or (ii) has been excluded from any federal or state health care program. Client warrants to Kipu that it and its Billable Providers are and will be duly licensed and authorized to provide and bill for the health services that they render.

17.6 Client must verify the accuracy, completeness, and appropriateness of all information entered into or selected in the Service, including information from third party products and services, before such information is utilized. Client acknowledges and agrees that the professional duty to treat the patient lies solely with Client, and use of information contained in or entered into or provided through the Service, in no way replaces or substitutes for the professional judgment or skill of Client. Client is responsible and liable for the treatment of patients as to whom Client and its personnel access or use the Service, including responsibility for personal injury or loss of life. Client represents and warrants to Kipu that (i) all data it provides to Kipu or that it selects in Kipu, including, but not limited to, codes and practitioner identifiers, are accurate and in conformity with all legal requirements; (ii) its medical records appropriately support all codes that it enters, selects or approves; (iii) it and its personnel are duly authorized to enter and access such data; (iv) and Kipu is duly authorized to receive, use, and disclose such data subject to the terms of its Service Agreement. Kipu is not a health plan or healthcare provider and it cannot and does not independently review or verify the medical accuracy or completeness the medical information entered into, or made available to it in, the Service. Use of and access to the Service, including, but not limited to, clinical information in the Service, is at the sole risk and responsibility of Client and any practitioner or health care provider or facility using data provided by Kipu as part of the Service. Kipu shall not be liable for any action or inaction of Client which may give rise to liability under the federal False Claims Act or any state version thereof.

18. Cooperation

You will cooperate with us in the administration of the Service, including providing reasonable assistance in evaluating the Service and collecting and reporting data requested by us for purposes of administering the Service. You grant us the right to audit your and your Authorized Users’ use of the Service to ensure such use is in compliance with the Service Agreement.  In the event we reasonably determine that any unauthorized use of the Service has occurred, we may assess additional fees as provided in the Order Form and penalties (including the cost of the audit).  

19No Solicit or Hire Clause

You acknowledge that Kipu invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under the Service Agreement. You agree that for the full term of the Service Agreement, and for 2 years after its expiration or termination, you will not solicit or employ in any capacity, whether as a direct employee, independent contractor or as a representative of another company providing similar services to you as the Service provided by Kipu, any person employed by Kipu at any time during the term of the Service Agreement whose duties involve providing the Service, whether for yourself or other Kipu customers. In addition to equitable remedies, you acknowledge and agree that actual damages in the event of a breach of this Section 19 are difficult to ascertain at present. You have reviewed and found the amount of one hundred thousand dollars ($100,000) to be a reasonable estimate of damages Kipu would incur if you breach this Section 19.  You have reviewed and will not challenge this amount as unreasonable, and you agree that you will not contest an order entering a judgment in this amount without delay and that you will not present any defenses or counterclaims.

20. Applicable Law

The interpretation of the Service Agreement and the resolution of any disputes arising out of or related to the Service Agreement, shall be governed by the laws of the State of Florida, without regards to its conflicts of laws provisions. If any action or other proceeding is brought on or in connection with the Service Agreement, the venue of such action shall be exclusively in the applicable state or federal courts in and for Miami-Dade County, Florida.

21. Arbitration

21.1 EXCEPT FOR CLAIMS BY EITHER PARTY UNDER ANY OF THE SECTIONS OF THESE Ts&Cs LISTED IN SECTION 21.2, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE SERVICE AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE SUBJECT TO FINAL AND BINDING ARBITRATION GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. §§ 1 ET SEQ.). THE ARBITRATION SHALL BE CONDUCTED BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE JAMS STREAMLINED ARBITRATION RULES & PROCEDURES THAT ARE IN EFFECT AT THE TIME ARBITRATION IS INITIATED, AS MODIFIED BY THESE Ts&Cs. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF IN CONNECTION WITH AN ARBITRABLE CONTROVERSY, BUT ONLY UPON THE GROUND THAT THE AWARD TO WHICH THAT PARTY MAY BE ENTITLED MAY BE RENDERED INEFFECTUAL WITHOUT SUCH PROVISIONAL RELIEF.

21.2  THIS AGREEMENT TO ARBITRATE SHALL NOT APPLY TO INTELLECTUAL PROPERTY CLAIMS BROUGHT BY KIPU OR CLAIMS BY ANY PARTY BROUGHT UNDER AND TO ENFORCE ANY ONE OR MORE OF THE FOLLOWING SECTIONS OF THESE Ts&Cs: 2.1; 3.1.2, 3.1.3, 3.1.4, 19 or, TO THE EXTENT APPLICABLE TO THE FOREGOING SECTIONS, 15.6.

21.3  THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR PRIVATE ATTORNEY GENERAL IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. BY ENTERING INTO THESE Ts&Cs, YOU AND WE ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIM WITH YOUR CLAIMS OR OUR CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY REPRESENTATIVE, CLASS, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM, IN ADDITION TO REASONABLE ATTORNEYS’ FEES AND COSTS.

21.4 Any part of this agreement to arbitrate that shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision of these Ts&Cs to arbitrate, and such other provisions shall remain in full force and effect.

22. Amending Client Information; Assignability of these Ts&Cs; Assurances

22.1 Amending Client Information

If you are a Client, you are required to submit to us all information necessary to confirm yourself as the Client, and maintain the accuracy of such information, in a timely fashion, during the Term of these Ts&Cs. You are also required to maintain the accuracy of all information associated with each Credential. We shall be entitled to rely on all information you submit to us under these Ts&Cs, including pursuant to Section 3.1 or this Section 22.1. If you contact us and assert that you have authority to act on behalf of a Client or any of its account(s) or data, you hereby agree to submit to us such written certifications, assurances (which may include a written opinion of your counsel identifying us as beneficiaries entitled to rely on such opinion), instruments or judicial process as we, in our sole discretion, may request.

22.2 Assignments

The Service Agreement may be transferred in its entirety by a Client in connection with the sale, transfer or reorganization of all or substantially all of the practice or business to which the Service Agreement relates; provided that each of the following conditions are satisfied in full: (a) an authorized representative of the transferor or transferee notifies us in writing of the transfer, the legal name of the transferee, and date of transfer; (b) the transferor or transferee submits to us such written certifications, assurances (which may include a written opinion of your counsel identifying us as beneficiaries entitled to rely on such opinion) or instruments as we, in our sole discretion, may request; and (c) we are satisfied, in our sole discretion, of the validity of the certifications, assurances or instruments submitted pursuant to clause (b). Upon our recognition of a transfer by a Client, the Administrative Rights and all User accounts of such Client’s Authorized Workforce shall automatically transfer to such Client’s recognized transferee. Except as expressly set forth in this Section 22.2, you may not assign or transfer the Service Agreement, in whole or in part, without the prior written consent of Kipu’s CEO, which may be withheld at our sole discretion. We may freely assign the Service Agreement in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise. In the event that the Service Agreement is assigned or transferred by a Client in accordance with this Section 22.2, we may in our sole discretion update the Service Agreement to the pricing on our most recent price list as of the date of such assignment or transfer.

22.3 Assurances

By requesting or directing us to take any action described in Section 22.1 or Section 22.2 with respect to any Client or any account(s) or data held by such account(s), you represent and warrant that (i) you have the authority to act on such Client’s behalf or to control such account(s) or data, and (ii) your request or direction is not in furtherance of any purpose or action that would violate any provision of these Ts&Cs, applicable law or the rights of any person or entity. YOU HEREBY WAIVE AND UNCONDITIONALLY RELEASE US, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, DEBTS, LIABILITIES, EXPENSES, ACTIONS AND CAUSES OF ACTIONS OF EVERY KIND AND NATURE, WHETHER NOW KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH ANY ACTION WE TAKE OR DO NOT TAKE IN RESPONSE TO ANY REQUEST, DIRECTION, INFORMATION, CERTIFICATION, ASSURANCE OR INSTRUMENTS WE RECEIVE FROM YOU IN ACCORDANCE WITH SECTION 22.1 OR SECTION 22.2. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE § 1542 (OR SIMILAR PROVISIONS OF THE LAWS OF OTHER STATES), WHICH STATES,

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

You hereby agree to indemnify, defend, and hold harmless us and other users, and our and their respective affiliates, officers, directors, employees and agents, from and against any claim, cost or liability, including reasonable attorneys’ fees arising from: (a) any action we take in reliance on any information, certification, assurance or instrument you provide to us, or (b) any action we take that complies with any request or direction you at any time make or made.

23. Force Majeure

No party to the Service Agreement shall be deemed in violation if it is prevented from performing any of its the obligations thereunder by reason of: (a) severe weather and storms; (b) earthquakes or other natural occurrences; (c) strikes or other labor unrest; (d) power failures; (e) nuclear or other civil or military emergencies; (f) acts of legislative, judicial, executive, or administrative authorities; or (g) any other circumstances that are not within its reasonable control.

24. Marketing

We may identify Client as a customer on our website and in our press releases and other marketing materials, including use of Client’s logos, trademarks, and service marks (collectively, “Marks”) for that limited purpose only, provided we comply with Client’s reasonable usage guidelines, do not knowingly use such Marks in any manner likely to diminish their value, and do not assert any ownership interest in or transfer rights to such Marks.  Client agrees and acknowledges that we have the right to directly contact any and all Authorized Users in connection with such Authorized Users’ use of the Service.  

24Binding Effect.

The provisions of these Ts&Cs shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. 

25. Severability

Any provision of the Service Agreement that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of the Service Agreement.  Such other provisions shall remain in full force and effect and the unenforceable term or provision shall be replaced by such enforceable term or provision as comes closest to the intention underlying the unenforceable term or provision.

26. Notices

Any and all notices required or permitted under these Ts&Cs shall be sent by United States mail or fax transmission to the address provided below or to such other and different addresses as the Parties may designate in writing. If you supply us with an electronic mail address, we may give notice by email message addressed to such address; provided that if we receive notice that the email message was not delivered, we will give the notice by United States mail or fax.

To us:
Kipu Health LLC
Attention: Legal Department
55 Alhambra Plaza, 6th Floor
Miami, FL 33134

To you, at the current contact information on file with us at the time notice is given.

27. No Third-Party Beneficiaries

Except as expressly provided for in Sections 2.2, 2.4, 12, 14, and 22.3, nothing express or implied in the Service Agreement, is intended to confer, nor shall confer, upon any person or entity other than the Parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.

28. Modification

We may update or change the Service or the terms set forth in the Service Agreement from time to time. Accordingly, we recommend that you review the Service Agreement on a regular basis. You understand and agree that your continued use of the Service after the Service Agreement hasbeen updated or changed constitutes your acceptance of the revised terms and conditions of the Service Agreement. 

Last updated August 26, 2022

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