Terms of Use

The following Terms of Use (the “TOU”) govern your use and access the Service provided by Kipu under the Service Agreement between Kipu Systems LLC, a Florida limited liability company (together with its subsidiaries and affiliates, including Kipu Health LLC, a Delaware limited liability company, “Kipu,” “we” or “us”) and Client (defined below).

THESE TOU ARE LEGALLY BINDING ON YOU AS A “USER” OF THE SERVICE IN ANY CAPACITY FOR ANY REASON WHATSOEVER. EACH TIME YOU LOG IN AND/OR CLICK “I AGREE,” OR OTHERWISE ACCESS OR USE THE SERVICE FOR ANY REASON, YOU ARE ENTERING INTO THESE TOU AND YOU AGREE TO BE BOUND BY THEM, BOTH PERSONALLY AS AN INDIVIDUAL AND AS AN AGENT OF YOUR EMPLOYER, ORGANIZATION, OR OTHER ENTITY ON BEHALF OF WHICH YOU ARE ACCESSING THE SERVICE, REGARDLESS OF WHETHER SUCH PRINCIPAL HAS BEEN DISLOSED. SUCH EMPLOYER, ORGANIZATION, OR OTHER ENTITY IS LIKEWISE BOUND TO ALL THESE TERMS TO WHICH YOU ARE ASSENTING.

Please read these TOU carefully, and do not access or use the Service if you are unwilling or unable to be bound by these TOU. You and we are collectively referred to as the “Parties.”

1. Definitions

For the purposes of these TOU, certain terms used in these TOU (whether or not capitalized) shall have the meanings assigned to them in Section 1 below. Terms not defined below or in these TOU (whether or not capitalized) have the definitions given to them in the Service Agreement, 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, reference documents, screenshots, videos, recorded webinars, and like information, as updated from time to time, provided in connection with your use of or made accessible via login to the Service.

“Authorized Workforce” means those natural persons who are members of Client’s Workforce who Client has identified in its account as authorized to access the Service on Client’s behalf.

“BAA” means the Kipu Business Associate Agreement, available online at https://kipuhealth.com/kipu-business-associate-agreement/, 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 you, as a user of the Service, allowing us to take actions described under the Ts&Cs and/or these TOU, which you 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-Identified Personal Information” means Personal Information from which all identifiers that could reasonably be anticipated to identify an individual by an anticipated recipient – such an individual’s name, contact information, or government identifiers – have been removed.

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

“HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009, and regulations promulgated thereunder.

“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 Client under 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 amended from 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” the Kipu Third Party Terms of Service available online at https://kipuhealth.com/third-party-tos-tptos/, as updated from time to time.

“User” (capitalized) means a natural person who has been authorized, pursuant to the Ts&Cs and these TOU, to access the Service on Client’s behalf; a “user” (un-capitalized) shall mean any user of the Service. As a “user” you are bound by these TOU, along with any employer, organization, or other entity for which you are acting as an agent.

“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 Client may contract for services, including but not limited to third-party billers, information technology professionals, and any other service provider that performs services on Client’s behalf.

“Your Health Information” means Protected Health Information that you input or upload onto the Service, or that we otherwise receive from you or on your behalf from your patients, authorized service providers, or our third-party partners pursuant to the Ts&Cs and/or these TOU (including Section 4.2.7).

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

“Your Personal Information” means Personal Information that you 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 TOU. The headings used in these TOU are used for convenience only and are not to be considered in construing or interpreting these TOU.

2. Grant of Right to Use the Service

2.1  We grant to you and you accept a non-exclusive, personal, non-transferable, limited right to access and use the Service during the Term, subject to your full compliance with the terms and conditions set forth in these TOU 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 and these TOU. You are bound by the Service Agreement and these TOU, along with any employer, organization, or other entity for which you are acting as an agent or accessing or using the Service.  

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.Access Rights & Restrictions

3.1.1  Client. We offer the Service to the Client and to natural persons who are members of the Client’s Authorized Workforce, as more fully described in this Section 3.1.   The Client is the owner of all User accounts associated with such Client. The Client is a party to these TOU for all purposes and shall be subject to all of the provisions that are applicable to the person addressed as “you” in these TOU.  Although you, as a member of a Client’s Authorized Workforce may have logged into a Client’s instance of the Service and accessed the Service and consented to these TOU, or may continue to administer Administrative Rights or Super Administrative Rights on the Client’s behalf, only the Client is entitled to any of the rights, remedies or benefits under these TOU and control over the Administrative Rights and Super Administrative Rights. The Client is likewise subject to, and we may enforce against it, all of the covenants, obligations, restrictions, limitations, acknowledgements, Consents, representations, warranties, waivers and releases included in these TOU. The Client may delegate Administrative Rights and Super Administrative Rights to one or more members of the Client’s Authorized Workforce, but the Client remains responsible for all activity occurring thereunder.

3.1.2  Authorized Representatives. If you are a Super Administrator for the Client, you represent and warrant that (a) you 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 you submit to us is complete and accurate, and (c) you have 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. If you are an Authorized Representative, you recognize that you have no personal rights with respect to such Client’s instance of the Service, and that such Client may change the Authorized Representative at any time, for any or no reason, with or without notice. 

3.1.3  Authorized Workforce. If you are a member of a Client’s Authorized Workforce, and such Client has authorized you to access the Service on its behalf by authorizing a Credential for you, then you are authorized under these TOU to access and use the Service solely on behalf and at the direction of such Client. You consent to and authorize the disclosure to such Client any content related to, or otherwise generated by your use of the Service, including secure messages. You hereby agree and acknowledge that you are subject to, and we may enforce against you, all of the covenants, obligations, restrictions, limitations, acknowledgements, Consents, representations and warranties set forth in these TOU that are applicable to the person addressed as “you” in these TOU, and you hereby grant and make all rights, waivers and releases set forth in these TOU that are granted and made by the person addressed as “you” in these TOU, but you are entitled to none of, and hereby waive and agree not to exercise or assert any of, the rights, remedies or benefits under these TOU other than the limited, non-exclusive, non-transferable, personal right under this Section 3.1.3 to access and use the Service solely on behalf and at the direction of such Client. Notwithstanding the applicable provisions of Section 11, you acknowledge that your access to the Service may be terminated by the Client or us at any time, for any reason or no reason at all, with or without notice. By (i) accessing any of the Service under a Client’s account(s), or (ii) contacting us by any means and requesting or directing us to take any action with respect to any Client’s account(s) or data held by such account(s), or (iii) asserting any right or authority with respect to such account(s) or data, you represent and warrant that you have the authority to act on such Client’s behalf and that you are not using the Service, or otherwise engaging in the activities described in clauses (i) through (iii) above, for the benefit or at the direction of any person or entity other than such Client, including yourself. Unless you are a member of a Client’s Authorized Workforce, you may not access the Service for the purpose of uploading any information, including but not limited to laboratory results and patient files, regardless of whether your organization has an agreement with Kipu or any Client.

3.1.4  Super Administrative Users. A user with the assigned role of Super Administrator (a “Super Administrator User”) must be registered with a Clientdomain 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.  By accessing the Service, a Super Administrative User agrees to accept email and text communication from Kipu regarding the Service and attendant responsibilities as a Super Administrative User.  Kipu reserves the right at any time to restrict or disable access for any Super Administrative User who fail to meet the minimum requirements set forth above.

3.1.5  All Other “Users”. If you are a “user” as defined herein, you hereby agree and acknowledge that you are subject to, and we may enforce against you, all of the covenants, obligations, restrictions, limitations, acknowledgements, Consents, representations and warranties set forth in these TOU that are applicable to the person addressed as “you” in these TOU, and you hereby grant and make all rights, waivers and releases set forth in these TOU that are granted and made by the person addressed as “you” in these TOU, but you are entitled to none of, and hereby waive and agree not to exercise or assert any of the rights, remedies or benefits under these TOU. Nothing in this section authorizes or shall be deemed to authorize your use of the Service and if your use is not expressly permitted under these TOU, you may be held directly liable and required to pay damages to Kipu for improperly accessing the Service.

3.1.6  Credentials. You must have and use unique Credentials to access the Service, and must provide your legal name(s) when seeking such Credentials.  We authorize you to use the Credentials uniquely assigned to or selected by you. You must access the Service using such Credentials and are not permitted to share such Credentials with any other users of the Service.  You acquire no ownership rights in any such Credentials, and such Credentials may be revoked, reset or changed at any time in the discretion of us or the Client. You will adopt and maintain reasonable and appropriate security precautions for your Credentials to prevent their disclosure to or use by unauthorized persons. You may not attempt to conceal your identity by using multiple Internet Protocol addresses or email addresses, or by any other means, to use the Service.

3.1.7  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 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 the Ts&Cs or the TOU if you engaged in such activity.

3.1.8  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 are responsible 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. 

3.2  Beta Features; Updates

3.2.1  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 Services at any time, and may never make them generally available.

3.2.2  Updates. We will update the Service from time to time to add new features and fix bugs. These updates usually take a few seconds, but sometimes require a longer suspension of the Service. In such cases, we will notify you at least 48 hours in advance, and we will strive to schedule it so that your business is minimally impacted. We also provide software to support special features for tablets and other devices. If you use this software, it will automatically check if your version is current. If it is not, you may be required to install a newer version before access to the Service is allowed.

3.3  Verification

You agree that your use of the Service, or certain features or functionality of the Service, may be subject to verification by us of your identity and credentials as a health care provider or health care professional under applicable law, and to your ongoing qualification as such. You agree that we may use and disclose Your Personal Information for such purposes, including making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. Notwithstanding the applicable provisions of Section 11, you agree that we may terminate your access to or use of the Service at any time if we are unable at any time to determine or verify your identity, qualifications or credentials.

3.4  Permitted Uses

3.4.1  Subject to the terms of these TOS, you may use Your Health Information for any purpose expressly permitted by applicable law and under the BAA, including treatment, payment and health care operations. You have consented to the terms and conditions of the BAA for the purposes of compliance with HIPAA.

3.4.2  If you are granted access rights to another user of the Service’s Protected Health Information through the Service, you may use such information for treatment and for obtaining payment for treatment; provided that (i) you may access only information pertaining to individuals with whom you have a treatment relationship or for whom a Client who has a treatment relationship with the individual has requested a professional consultation from you, or from whom you have received authorization to use their health information; and (ii) to the extent applicable to you, you may use only the minimum necessary information for performing and billing any services.

3.4.3  You will not use the Service for any purposes other than those described in these TOU. In particular:

(a)  You may not reproduce, publish, or distribute content in connection with the Service that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right;

(b)  You may not use the Service to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages, or otherwise unlawful material;

(c)  You may not duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or allow any person that is not part of Client’sAuthorized Workforce to access the Service without the express written permission of Kipu’s Chief Executive Officer (“CEO”); 

(d)   You may not commercialize any portion of the Service or any information or software associated with or used to access, exploit, or use the Service; and

(e)  Except as expressly permitted in writing by Kipu’s CEO, you may not modify, port, adapt, make screen captures from or translate the Service.

In addition, to further safeguard the confidentiality, integrity and availability of the information and other elements housed in the Service, as well as the stability of the Service, you agree that you will not (nor attempt to), nor will you authorize anyone to (or authorize anyone to attempt to):

(f)  (i) abuse or misuse the Service, including gaining or attempting to gain unauthorized access to the Service, or altering or destroying information housed in the Service; (ii) take any action that imposes or may impose (to be determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (iii) interfere or attempt to interfere with the proper working of our website or Services or any activities conducted on or with the Service; (iv) bypass our robot exclusion headers, robots.txt rules, or any other measures we may use to prevent or restrict access to our Service; (v) use the Service in a manner that interferes with other users’ use of the Service; (vi) use the Service in any manner that violates our TOU; or (vii) use any ad blocking mechanism, device, or tool to prevent the placement of advertisements in the Service;

(g)  circumvent any technical measures we have put in place to safeguard the Service or the confidentiality, integrity or accessibility of any information housed thereon, or any technical measures we have put in place to restrict access to the Service solely to the class of persons expressly so authorized pursuant to Sections 3.1.1 through 3.1.4;

(h)  access any portion of the Service other than with a standard commercial browser (such as Internet Explorer, Mozilla Firefox, Chrome, Android or iOS) or through mobile applications developed and operated by us; 

(i)  “frame” or “mirror” any part of the Service; or

(j)  use any computer program, bot, macro, robot, spider, offline reader, site search/retrieval application, scraper, browser add-on, rich internet application, artificial-intelligence or machine-learning technology, or other manual or automatic device, tool, or process to access, retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Service; for the avoidance of doubt, this specifically prohibits you from using automated software in connection with the Service, and prohibits you from circumventing any security measure, access control system, or other technological control or measure in the Service.

You agree that your abusive use of the Service in violation of this Section 3.4.3 may cause damage and harm to us, including impaired goodwill, reduced performance, and increased expenses. You also agree that monetary damages for your abusive use of the Service are difficult to determine, and that if you, or others acting with you, request more than 500 pages of the Service or make more than 100 upload requests on the Service in any 24-hour period, you, and those acting with you, will be liable for liquidated damages in the amount of one dollar ($1.00) for each page request or upload request made during that 24-hour period which exceeds those limits.

4. Use of Information

4.1  Purpose of EMR Service

The purpose of the EMR Service is to store Your Health Information and (i) to make it available to you 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 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 EMR Service, other individuals and entities, or to your patients through the EMR Service for these purposes.

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

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

4.2.2  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.

4.2.3  We will permit access to Your Information by health care providers, covered entities and their business associates to whom Client has Consented to provide access to the Service and who have otherwise agreed to integrate with our systems. We will obtain Client’s 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.

4.2.4  We may disclose or permit access to Your Information to entities such as, but not limited to, health plans, health care clearinghouses, medical groups, independent practice associations, your authorized service providers and other parties responsible for payment and their business associates for the purpose of obtaining (or confirming eligibility or authorization for) payment for services you provide, unless you advise us in writing that, with respect to a specific service provided to a specified patient, such patient has paid out of pocket in full for the service to which the health information relates, and has requested that it not be disclosed to his or her health plan.

4.2.5  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. 

4.2.6  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.

4.2.7  From time to time we may incorporate information we receive from your authorized service providers (including Third-Party Services as discussed in Section 2.4), 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 thirdparty partners.

4.2.8  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 5 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.

4.2.9  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.

4.3  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 these TOU and the 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:

4.3.1  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);

4.3.2  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 these TOU and the BAA;

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

4.4  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 upload or input into the Service for 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. 

4.5  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 are fully responsible for the information in any chart that you share. You 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.

4.6  Client Directories

We may include your Directory Information (defined below) in our (a) “Public Client Directories,” which are electronic directories for patients and the general public; and (b) “Professional Client Directories,” which are electronic directories for Clients and other members of the healthcare community ((a) and (b) collectively, “Client Directories”). Client Directories may be made available in various electronic formats, including searchable databases, Client landing pages, interactive reference tools, reference lists, ratings, and integrated look-up features, among others. They may also incorporate information designed to help users, such as integrated maps, and licensure confirmation tools, reviews, among other matters. Client Directories may include a “contact” feature that allows users to contact other users directly through the Service. Our Public Client Directory may be made available to public search engines to aid Client discovery. Listing in the Client Directories is subject to eligibility criteria, which may differ between the Public Client Directory and Professional Client Directory.  A Client’s “Directory Information” includes the Client’s name, name(s) of physicians or other healthcare professionals associated with a Client, associated specialties, Client’s business telephone number(s) and physical address(es), National Client Identifiers (or NPI), and the Client’s available appointment slots, as each is indicated from information a Client has inputted or imported into the Service. The Directory Information may include additional information you input or upload into profile tools we make available in the Service (such as a profile photograph, accepted insurance, available office hours, a front desk email address, and the like), as and when such tools are available.

4.7  Forums

We may offer forums for the exchange of information among our users. You will comply with all applicable forum rules. In particular, you understand that we do not assure the accuracy, reliability, confidentiality or security of information made available through the use of such forums. You acknowledge that any information you post in a forum is available to the public, and may result in your receiving communications from others outside of our site. You are responsible for safeguarding the privacy of your and your patients’ personal information when you participate in forums, discussion groups and the like. You agree not to disclose individually identifiable health information through such forums.

4.8  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 4.8.

4.9  Providing Physician Data to Payers and Others

Without limiting any similar provisions of the Service Agreement, 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.

5. 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 4.2.8)). 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.

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 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 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 to when 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 to 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. Intellectual Property Rights

7.1  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.

7.2  Trade Secrets

In order to protect our trade secrets herein, you affirm that neither you are not currently nor will become for a period of two (2) years after termination or expiration of youraccess to or use of 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.

7.3  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.

8. 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.

9. Confidentiality 

9.1  Confidential Information

9.1.1  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 TOU. Except as otherwise provided in these TOU, you may not, without the prior written consent of Kipu’s CEO, at any time, during or after the Term of these TOU, 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 Client’s Authorized Workforce who have a need to use it for the purposes of these TOU. 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 TOU. 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.

9.1.2  You agree that we will suffer irreparable harm if you fail to comply with your obligations set forth in Section 9.1.1, 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.

9.2  Protected Health Information.  You agree to be bound by the terms and conditions of the BAA, which is available at https://kipuhealth.com/kipu-business-associate-agreement/ and incorporated herein by reference, with respect to Protected Health Information.

10. Compliance

10.1  You are solely responsible for ensuring that your use of the Service complies with applicable law, 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 Client’s 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 under the terms of these TOU 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 these TOU, or (iv) allow our third-party partners to comply with their obligations under federal or state law.

10.2  The Parties acknowledge and agree that (i) any fees charged or amounts paid hereunder are not intended, nor will they be construed to be, an inducement or payment for referral of patients among Kipu, Client, or any third party and (ii) they will not enter into any agreements, or otherwise make any payments, for the purpose of rewarding the referral of patients among Kipu, Client, or any third party.

10.3  You warrant to Kipu on a continuing basis throughout the term of its Service Agreement that you 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.

10.4  You warrant that you (i) have not been convicted of any crime arising from claims or other transactions, financial relationships, or financial dealings in connection with health care and (ii) have not been excluded from any federal or state health care program. If you are a Billable Provider, you warrants that you are and will be duly licensed and authorized to provide and bill for the health services that you render.

10.5  You 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. You acknowledge and agree that your professional duty to treat the patient lies solely with you, and use of information contained in or entered into or provided through the Service, in no way replaces or substitutes for your professional judgment or skill. You are responsible and liable for the treatment of patients as to whom you access or use the Service, including responsibility for personal injury or loss of life. You represent and warrant to Kipu that (i) all data you provide to Kipu or that you select in Kipu, including, but not limited to, codes and practitioner identifiers, are accurate and in conformity with all legal requirements; (ii) your medical records appropriately support all codes that you enter, select or approve; (iii) you 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 your sole risk and responsibility. Kipu shall not be liable for any action or inaction of your which may give rise to liability under the federal False Claims Act or any state version thereof.

11. Suspension; Termination

11.1  Termination 

We may terminate your access to and use of the Service in the event you (a) fail to comply with the terms and conditions of these TOU, 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 these TOU, 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.   

11.2  Termination, Suspension or Amendment as a Result of Government Regulation. 

Notwithstanding anything to the contrary in these TOU, we have the right, on notice to you, immediately to terminate, suspend, or amend these TOU, 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; (c) if performance of any term of these TOU by either Party would cause it to be in violation of law.

11.3  Judicial or Administrative Procedures; Credentialing

We may terminate 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.

11.4  Suspension of Access

We may suspend your access to the Service immediately pending your cure of any breach of these TOU, or in the event we determine in our sole discretion that your access to or use of the Service may jeopardize the Service or the confidentiality, privacy, security, integrity or availability of information within the Service, or that you have violated or may violate these 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. We may terminate your access to the Service upon termination or change in status of your employment with Client. Our election to suspend the Service shall not waive or affect our rights to terminate these TOU as permitted under these TOU.

11.5  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.

11.6  Survival.  All provisions of these TOU, which, by their nature, should survive termination shall survive termination, including, but not limited to, Sections 1, 3.4, 4.9, 9, 12, 13, 14, 15, 16.3, and 19 through 21.

12. 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 use of the Service by you; (b) any breach by you of any representations, warranties or agreements contained in these TOU; (c) the actions of any person gaining access to the Service under Credentials assigned to you; (d) the actions of anyone using Credentials assigned to you that adversely affects the Service or any information accessed through the Service; and (e) your negligent or willful misconduct. Your indemnification obligations in these TOU (including this Section 12) are cumulative, and are not intended to, nor do they, limit your indemnification obligations elsewhere in these TOU or at law, even if such obligations arise or are occasioned or triggered by a single assertion, claim, circumstance, action, event or transaction.

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

13.1  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.

13.2  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 OR THESE TOU.

13.3  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.

13.4  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.

13.5  Limitation of Liability

NOTWITHSTANDING ANYTHING IN THESE TOU OR 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.

14. Applicable Law

The interpretation of the Service Agreement, including these TOU, and the resolution of any disputes arising out of or related to the Service Agreement, including these TOU 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, including these TOU, the venue of such action shall be exclusively in the applicable state or federal courts in and for Miami-Dade County, Florida.

15. Arbitration

15.1  EXCEPT FOR CLAIMS BY EITHER PARTY UNDER ANY OF THE SECTIONS OF THE TOU LISTED IN SECTION 15.2, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE SERVICE AGREEMENT INCLUDING THESE TOU 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 TOU. 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.

15.2  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 TOU: 2.1; 3.1.2; 3.1.3; 3.1.4; 3.1.6; 3.1.7; 3.2; 3.4.3(c)-(j);  OR, TO THE EXTENT APPLICABLE TO THE FOREGOING SECTIONS, 13.5.

15.3  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 TOU, 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.

15.4  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 TOU to arbitrate, and such other provisions shall remain in full force and effect.

16. Amending Your Information; Assignability of these TOU; Assurances

16.1  Amending Your Information

You are required to submit to us all information necessary to confirm yourself as an Authorized Workforce member of the Client, and maintain the accuracy of such information, in a timely fashion, during the Term of these TOU. 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 TOU, including pursuant to Section 3.1 or this Section 16.1. 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.

16.2  Assignments

You may not assign these TOUs to any other individual or entity.

16.3  Assurances

By requesting or directing us to take any action described in Section 16.1 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 TOU, 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 16.1. 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.

17. 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.

18. Force Majeure

No party to the Service Agreement, including these TOU, 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.

19. Severability

Any provision of the Service Agreement, including these TOU, 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.

20. Notices

Any and all notices required or permitted under these TOU 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.

21. No Third-Party Beneficiaries

Except as expressly provided for in Sections 2.2,3.15 12, 9 and 16.3, nothing express or implied in the Service Agreement, including these TOU, 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.

22. Electronic Transactions

The Service gives you the ability to enter into agreements, authorizations, consents and applications; make referrals; order lab tests; prescribe medications; or engage in other transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE YOUR ACKNOWLEDGMENT THEREOF AND YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS, AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. You represent and warrant that you have the authority to take such actions.

23. Modification. 

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

Last updated August 26, 2022