Service Agreements

Provider Agreement

THESE GATEWAY TERMS (this “Agreement”) are made and entered into on the date of the corresponding Service Order incorporating these terms or the date otherwise entered into by Merchant (the “Effective Date”) by and between Real Patient Solutions, Inc. d/b/a HelloPatients, a Delaware corporation having its principal place of business at 53 Longbow Lane, Springfield, IL, 62704 (“HelloPatients”), and the Merchant agreeing to these terms pursuant to an applicable Service Order or otherwise (“Merchant”).

The purpose of this Agreement is to set forth the terms and conditions under which Merchant may use (i) any current or future service(s) provided by HelloPatients, including the Gateway Services; and (ii) any associated information, products, software and/or features made available to Merchant by HelloPatients. Capitalized terms not otherwise defined below have the meanings set forth in Schedule 1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. Gateway Services
    1. Provision of Gateway Services; License.
      • HelloPatients shall make the Gateway Services available to Merchant and its Users pursuant to this Agreement and all Service Orders during the applicable subscription term thereof. Subject to the terms and conditions of this Agreement and Merchant’s compliance therewith, HelloPatients grants to Merchant, and Merchant accepts, a nonexclusive, nontransferable license for it and its Users to access and use the Gateway Services for their internal business purposes in accordance with the Documentation.
    2. Service Deliver.
      • HelloPatients may provide the Gateway Services from any facility and may from time to time transfer any or all of the Gateway Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing the Gateway Services. HelloPatients’ obligations to provide Gateway Services are subject to and conditioned upon Merchant’s compliance with this Agreement in all material respects. HelloPatients shall be authorized to change and adjust the content of its Gateway Services, including, without limitation, technological, user-interface or content enhancements, provided that the agreed functionalities are not restricted or materially impaired.
    3. Additional Locations.
      • Subscriptions may be accessed by designated Users within a specific Location. Unless otherwise specified in the relevant Service Order, (i) the term of any additional Location subscriptions shall be coterminous with the expiration of the subscription term in effect at the time the additional Locations are added; and (ii) pricing for the additional Location subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional Locations are added. The Locations contemplated to be accessing the Gateway Services are set forth in the applicable Service Order.
    4. Professional Services.
      • HelloPatients or its third-party providers shall provide any consulting, implementation, integration, development or other professional services described in a Service Order (“Professional Services”). Unless otherwise expressly set forth in the corresponding Service Order, as between the parties, HelloPatients will own any improvements, enhancements, configurations, derivative works and other Work Product made by or on behalf of HelloPatients or its third-party providers in connection with the Professional Services.
    5. Support Services; Service Levels.
      • HelloPatients shall provide support services, and use commercially reasonable efforts to provide the Gateway Services. SLA is available upon request.
    6. Merchant Responsibilities.
      • For all User accounts established by or for Merchant, Merchant is responsible for all activities by Users that occur in such Users’ accounts and for Users’ compliance with this Agreement. Merchant will be responsible for maintaining the security of Merchant’s account(s), passwords (including but not limited to administrative and user passwords) and files, and for all uses of Merchant’s account(s) with or without Merchant’s knowledge or consent, other than to the extent any unauthorized use of the account results from HelloPatients’ negligence or more culpable behavior. Merchant shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Merchant Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Gateway Services, and notify HelloPatients promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Gateway Merchant represents and warrants that the Merchant Data does not infringe any intellectual property rights of any third party. Merchant will need certain equipment, software, and Internet access to be able to access the Gateway Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Merchant’s responsibility. HelloPatients neither represents nor warrants that the Gateway Services will be accessible through all web browser releases.
    7. Third Party Products and Services.
      • Merchant’s use of third party products and services, whether or not integrated with the Gateway Services, are not the responsibility of HelloPatients, do not constitute “Gateway Services”, and may be governed by and subject to separate third-party service, product, software, and/or license agreements. HelloPatients will not be a party to such third-party agreements and does not warrant or guarantee any third-party product or service.
    8. Hardware.
      • Merchant may use certain point-of-sale and other hardware (“Hardware”) in connection with the Gateway Services, which may or may not be purchased or otherwise obtained from or through HelloPatients. Merchant shall follow any and all reasonable instructions in relation to the operation of the Hardware. HelloPatients shall not be responsible for any misuse, neglect or abuse of, tampering with or any external forces affecting the Hardware. Merchant shall be responsible for the purchase, installation and maintenance of any and all Hardware necessary for the provision of Gateway Services. The Hardware shall be subject to a manufacturer’s warranty as between Merchant and the device manufacturer as administered by the manufacturer. HelloPatients does not provide any warranties of any kind for the Hardware. If purchased from or through HelloPatients, title and risk of loss of to the Hardware shall pass to Merchant upon shipment. Merchant shall be responsible for all costs of insurance, taxes, storage, and transportation. To the extent applicable, HelloPatients shall assign to Merchant any third party warranties for the Hardware. Merchant’s sole and exclusive remedy for the breach of any such third party obligations shall be against the applicable third party manufacturer or vendor, and not against HelloPatients. The procurement of Hardware from HelloPatients may be subject to additional terms included in the applicable Service Order.
    9. Use Guidelines; Restrictions.
      • Merchant shall use the Gateway Services solely for its internal business purposes as contemplated by this Agreement and shall not: (i) make any Gateway Service available to, or use any Gateway Service for the benefit of, anyone other than Merchant or Users; (ii) lease, license, sell, sublicense or otherwise transfer its access to or use of the Gateway Services, or include any Gateway Service in a service bureau or outsourcing offering; (iii) interfere with or disrupt the integrity or performance of any Gateway Service; (iv) attempt to gain unauthorized access to any Gateway Service; (v) permit direct or indirect access to or use of any Gateway Service in a way that circumvents a usage limit; (vi) copy a Gateway Service or any part, feature, function, or user interface thereof; (vii) copy any Gateway Service except as permitted herein or in a Service Order or the documentation provided by HelloPatients; (viii) frame or mirror any part of any Gateway Service; (ix) access any Gateway Service in order to build a competitive product or service; or (x) reverse engineer any Gateway Service (to the extent this restriction is permitted by law). Merchant shall not (a) defame, abuse, harass, stalk, threaten any individual or infringe or otherwise violate the legal rights (such as rights of privacy, publicity and intellectual property) of others or HelloPatients; (b) distribute any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, or otherwise objectionable material or information (including any unsolicited commercial communications); (c) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for HelloPatients; (d) misrepresent or in any other way falsely identify Merchant’s identity or affiliation, including through impersonation or altering any technical information in communications using the Gateway Services; (e) transmit or upload any material through the Gateway Services that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing HelloPatients’, or any other person’s or entity’s, network, computer system, or other equipment; (f) interfere with or disrupt the Gateway Services, networks or servers connected to the HelloPatients systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Gateway Services; (g) attempt to gain unauthorized access to the Gateway Services, other HelloPatients customers’ computer systems or networks using the Gateway Services through any means; or (h) interfere with another person’s use of the Gateway Services. HelloPatients has no obligation to monitor Merchant’s use of the Gateway Services. However, HelloPatients reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
    10. Retention Rights.
      • No rights are granted to Merchant hereunder other than as expressly set forth herein. Subject to the limited rights expressly granted hereunder, HelloPatients reserves all rights, title and interest in and to the Work Product, HelloPatients Information, Gateway Services, and other HelloPatients intellectual property, including, but not limiting to HelloPatients trademarks, copyrights and any other intellectual property rights associated with the HelloPatients products and/or services.
    11. Data Rights.
      • HelloPatients may use Merchant Data as necessary or appropriate to provide the Gateway Services to Merchant and its Users. HelloPatients will collect and use such Merchant Data in accordance with applicable law and PCI requirements, provided that it may be disclosed to (a) regulators, attorneys (internal and external), and auditors, (b) authorized third parties that HelloPatients reasonably deems necessary to provide the services, and (c) as required by law, regulation or court order. Merchant Data and other data and information may also be used (i) as part of performing payment processing, (ii) to provide other transaction related services, (iii) for purposes of aggregating anonymous data with other data for Merchant, (iv) to provide additional products and services to Merchant, Merchant’s partners or affiliated entities or organizations relating to the Gateway Services (e.g. reseller that sold the Gateway Services to Merchant), other merchants, cardholders or other payers, or third parties, or (v) for any other lawful purpose in accordance with HelloPatients’ privacy policy available at https://hellopatients.com/privacy-policy/. Transaction data stored on or residing in the HelloPatients system is, as between Merchant and HelloPatients, owned by HelloPatients except as applicable law may otherwise provide.
    12. Unmatched Credit Acknowledgment
      • In the event that Merchant requests HelloPatients to process credit transactions that do not correspond to identified sales transactions in the same amount and at the same merchant (“Unmatched Credits”), this Section shall apply. Merchant understands that initiating Unmatched Credits removes the verification check that otherwise would be present if such credit transaction could be matched to a sales transaction, and that HelloPatients advises not to initiate such Unmatched Credit transactions. Therefore, Merchant agrees to assume all risk of loss on and liability arising out of Unmatched Credits incurred by HelloPatients or by Merchant or by anyone on whose behalf Merchant is authorizing HelloPatients to initiate Unmatched Credits. Merchant represents and warrants that it is authorized to make such request for the subject Unmatched Credit. Notwithstanding anything to the contrary contained in this Agreement, to the maximum extent permitted by law, Merchant will defend, hold harmless and indemnify HelloPatients and its employees and agents from and against any claim, threat of claim, liabilities, fines, losses, costs, and expenses (including but not limited to attorney’s fees and costs) incurred by HelloPatients or brought by any third party against HelloPatients arising out of any Unmatched Credit initiated by Merchant or on Merchant’s behalf.
    13. Unmasked Sensitive Processor Information Acknowledgment.
      • In the event Merchant requests HelloPatients to unmask certain sensitive processor information, including but not limited to merchant identification numbers, vital numbers, terminal identification numbers, and passwords (collectively, “Processor Information”), that HelloPatients routinely truncates in order to protect such information from fraudulent use, Merchant understands that revealing Processor Information in the clear removes the protection afforded such information that otherwise would be present if Processor Information as masked, and that HelloPatients advises not to unmask such Processor Information. Therefore, Merchant agrees to assume all risk of loss on and liability incurred by it or by anyone on Merchant’s behalf is requesting HelloPatients unmask Processor Information. Merchant represents and warrants that it is authorized to make such request for the subject Processor Information. Merchant will defend, indemnify and hold harmless HelloPatients from and against any claim, threat of claim, liabilities, fines, losses, costs, and expenses (including but not limited to attorney’s fees and costs) incurred by HelloPatients or brought by any third party against HelloPatients arising out of any complying with Merchant’s request to unmask Processor Information.
  2. Fees; Payment.
    1. Usage Fees.
      • Merchant shall pay all fees specified on the applicable Service Order(s). Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified, fees are based on the option selected by the Merchant during the implementation of this Agreement and subsequent change requests as discussed and agreed upon in writing. In the event Merchant does not begin using the Gateway Services within ninety (90) days of the Effective Date, HelloPatients reserves the right to revise the fees set forth in the Service Order(s). HelloPatients reserves the right to increase the fees annually by providing at least thirty (30) days’ advance written notice of such changes.
    2. Invoicing; Payment.
      • Fees for the Gateway Services will be debited from the Merchant’s designated account (“Merchant’s Account”) on a monthly basis and statements shall be provided electronically. Merchant is responsible for maintaining complete and accurate billing and contact information. Merchant hereby grants HelloPatients the right to debit Merchant’s Account for the payment of the fees on a monthly basis, on or about the 4th day of each month, for the immediately preceding calendar month. HelloPatients failure to so debit Merchant’s Account during any given month shall not be considered a waiver of its right to such month’s fees.
    3. Overdue Payments.
      • Any payment not received from Merchant by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at HelloPatients discretion, late charges at the rate of 1.5% of the outstanding balance per month. or the maximum rate permitted by law. whichever is lower, from the date such payment was due until the date paid.
    4. Taxes.
      • Except as otherwise specified herein or in another writing agreed to by the parties, HelloPatients fees do not include any Taxes. Merchant is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on HelloPatients net income or property. If HelloPatients has the legal obligation to pay or collect Taxes for which Merchant is responsible under this Section, the appropriate amount shall be invoiced to and paid by Merchant, unless Merchant provides HelloPatients with a valid tax exemption certificate authorized by the appropriate taxing authority.
    5. Suspension of Gateway Service.
      • If Merchant’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute, in which case Gateway Services cannot be suspended unless Merchant’s account is sixty (60) days overdue), in addition to any of its other rights or remedies, HelloPatients reserves the right to suspend the Gateway Services provided to Merchant, without liability to Merchant, until such amounts are paid in full.
  3. Term; Termination
    1. Term.
      • The term of this Agreement shall commence on the Effective Date and shall continue for a period of five (5) years, which term shall automatically renew for successive annual periods unless terminated by either party upon at least ninety (90) days written notice prior to the end of any term.
    2. Termination.
      • Each party hereto shall have the right to terminate this Agreement: (i) as a result of a material breach by the other party after giving thirty (30) days prior written notice specifying the breach to the party in default and provided that the party in default has not cured its default prior to the end of the thirty (30) day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Merchant, HelloPatients shall refund Merchant any prepaid fees covering the remainder of the subscription term after the date of termination.
    3. Termination for Failure to Pay.
      • Merchant shall have the right to dispute invoices and until such dispute is settled may withhold payment of those disputed amounts, provided: (i) such disputes are made in good faith, (ii) written notice of such disputes are provided by Merchant to HelloPatients in a timely manner, and (iii) any undisputed amounts shall be paid by Merchant to HelloPatients. The parties shall attempt to settle such disputes promptly and negotiate in good faith. In addition to the termination rights set forth in this Section 3, HelloPatients may terminate this Agreement immediately if Merchant fails to pay any undisputed amount payable under this Agreement when due and fails to cure such default within thirty (30) days after receipt of written notice indicating the amount overdue.
    4. Liquidated Damages.
      • If Merchant terminates the Agreement prior to the expiration of the term other than as set forth above, Merchant will reimburse HelloPatients for all past due, unpaid and future invoices for services rendered by HelloPatients in connection with this Agreement. All amounts due pursuant to this Section shall be immediately due and payable by the Merchant upon demand.
    5. Effect of Termination.
      • Termination shall not relieve Merchant of the obligation to pay any fees accrued or payable to HelloPatients prior to the effective date of termination. Within thirty (30) days of the termination or expiration of this Agreement, each party will return all Confidential Information (as defined below) of the other party in its possession at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Sections 7 through 1.13, 2, 3.4, 3.5, 4.3, 5, 7, 8 and 11 of this Agreement will survive the expiration or termination of this Agreement.
  4. Representations and Warranties; Disclaimer.
    1. By HelloPatients. HelloPatients represents and warrants that:
      • it will provide the Gateway Services and professional services in a manner consistent with general industry standards reasonably applicable to the provision thereof and in compliance with applicable laws and regulations;
      • the functionality of the Gateway Services will not be materially decreased during a subscription term;
      • the Gateway Services shall perform substantially in accordance with the Documentation;
      • it owns or otherwise has sufficient rights in the Work Product, HelloPatients Information and Gateway Services to grant to Merchant the rights granted herein.
      • Merchant acknowledges and agrees that Merchant’s sole and exclusive remedy, and HelloPatients sole and exclusive liability, in the event of a breach of this Section 4.1 by HelloPatients is for HelloPatients to repair, replace, or re-perform, as applicable, the unsatisfactory Gateway Service, or in the event none of the foregoing are reasonably feasible, refund any prepaid and unused amounts for the corresponding Gateway Service.
    2. By Merchant. Merchant represents and warrants to HelloPatients that:
      • All representations and statements made by Merchant herein, or in any other document relating hereto by Merchant or on Merchant’s behalf, are true, accurate and complete in all material respects. Merchant hereby authorizes HelloPatients to investigate and confirm the information submitted by Merchant, whether directly or indirectly, through credit bureau reporting agencies and/or its own agents.
      • Merchant is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which Merchant conducts business.
      • Merchant acknowledges that HelloPatients shall bear no responsibility for any matter between Merchant, Merchant’s customer(s) or Merchant’s bank, including, but not limited to, (i) any incomplete, fraudulent, inaccurate or duplicate information submitted, or transactions/authorizations effectuated by Merchant or Merchant’s customer(s), (ii) the use of stolen or fraudulently obtained credit cards or payment information by Merchant or anyone else, or (iii) any damages, including cardholder chargebacks, resulting to Merchant from any of the foregoing.
    3. Disclaimer of Warranties.
      • EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, HELLOPATIENTS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, HELLOPATIENTS EXPRESSLY DISCLAIMS, AND MERCHANT EXPRESSLY WAIVES, ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND.
  5.  Confidentiality.
    1. Definitions. “Confidential Information”
      • means information disclosed by a party to the other party that is designated as confidential or that reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. Confidential Information of HelloPatients includes, but is not limited to, the Gateway Services and Documentation and the terms and conditions of this Agreement and all Service Orders (including pricing). Confidential Information does not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents. “Recipient” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
    2. Requirement of Confidentiality.
      • The Recipient agrees that it will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a need to know, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 5; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 5 will survive termination and continue for so long as the applicable information constitutes Confidential Information.
    3. Compelled Disclosure.
      • The Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Recipient gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.
    4. Equitable Relief.
      • If the Recipient discloses or uses (or permits or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
  6. Marks
    1. Subject to the terms of this Agreement, HelloPatients grants to Merchant a non-exclusive, royalty-free, limited license for the duration of the term to use, reproduce, publish and display the trademarks, service marks, and logos of HelloPatients on Merchant’s website(s), stationary and marketing/advertising materials in connection with the development, use, adaption, publication, display and performance of the HelloPatients services provided for under this Agreement and in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about and/or related to any of HelloPatients’ services; provided however, that in use of such license, Merchant may not indicate or imply, directly or indirectly, that HelloPatients endorses Merchant’s products or services in any way. Merchant agrees that it will use any such marks of HelloPatients or its affiliates only in the manner authorized in writing by HelloPatients, and will display such marks as reasonably directed by HelloPatients. Subject to the terms of this Agreement, Merchant hereby grants HelloPatients a non-exclusive, royalty-free, worldwide license to use Merchant’s proprietary trademarks, service marks and logos for sole purposes set forth in this Agreement and for marketing and promotion purposes. HelloPatients agrees that it will use any such marks of Merchant or its affiliates only in the manner authorized by Merchant.
  7. Indemnification
    1. Indemnification.
      • Merchant shall indemnify, defend and hold HelloPatients, its officers, partners, employees, agents and consultants harmless, from and against any and all liabilities, losses, damages, claims, causes of action and expenses (including reasonable attorneys’ fees) resulting from third-party claims, whenever arising or incurred, that are caused or asserted to have been caused, directly or indirectly, by or as a result of (i) the performance or failure to perform or material breach of this Agreement by Merchant or its Users or other employees or agents; or (ii) any negligence or willful misconduct by Merchant or its agents or employees.
    2.  Indemnification Procedure.
      • Neither party shall be liable to the other party under its indemnification obligations herein unless the indemnified party: (a) promptly gives written notice of the indemnified claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of such claim through counsel chosen and paid for by the indemnifying party (provided that the indemnifying party may not settle or defend any such claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance.
  8. Disclaimer; Limitation of Liability.
    1. Damages; Limitation of Damages.
      • Except for liability arising out of Sections 6, 1.9, OR 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE AGGREGATE LIABILITY OF HELLOPATIENTS FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL BE LIMITED TO THE TOTAL FEES PAID OR OWED TO HELLOPATIENTS BY MERCHANT UNDER THIS AGREEMENT FOR THE 6 MONTHS PRIOR TO THE TIME THE LIABILITY AROSE.
    2. Limitation Period.
      • No lawsuit or other action may be brought by Merchant on any claim or controversy based upon or arising in any way out of this Agreement after one (1) year from the date of the occurrence allegedly giving rise to the action.
  9. Compliance; Healthcare Regulations.
    1. General.
      • Each party, at its sole expense will comply with all applicable federal, state and local employment and other laws, government regulations and orders and Credit Card Network rules. Additionally, the parties agree that HelloPatients may modify or otherwise change the Gateway Services (including fees charged therefor) as necessary or appropriate to comply with applicable laws, government regulations and orders and Credit Card Network operating rules and other applicable requirements.
    2. Compliance with HIPAA.
      • Both parties and each of their employees and agents (and in the case of Merchant, its Users) shall comply with all applicable rules and regulations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) and the final regulations promulgated thereunder. Each of HelloPatients and Merchant agrees to amend this Agreement as necessary to comply with such final regulations and additional guidance published from time-to-time by the Center for Medicare and Medicaid Services (“CMS”). Consistent with the requirements of HIPAA and HITECH, each of HelloPatients, and its employees and agents shall: (i) appropriately access and disclose patient information; (ii) appropriately use each party’s information system; (iii) use appropriate physical, technical and administrative safeguards to prevent unauthorized access and disclosure of patient information; (iv) protect against any reasonably anticipated threats or hazards to the security or integrity of health information and unauthorized uses and disclosures of patient information; and (v) comply with other applicable requirements of HIPAA and HITECH.
    3. Business Associate Agreement.
      • To the extent Merchant Data constitutes Protected Health Information, as defined in 45 C.F.R. 160.103, HelloPatients shall use such Protected Health Information in accordance with the Business Associate Agreement executed between the Merchant and HelloPatients. If no other Business Associate Agreement has been entered into between the parties in connection with this Agreement, the Business Associate Agreement available at https://hellopatients.com/service-agreements shall apply.
    4. Patient Information.
      • Merchant and its Users are responsible for obtaining consents, authorizations, and releases required by applicable law to access, use and disclose protected health information (as defined by HIPAA), mental health information and other patient medical information (collectively, “Patient Information”) in connection with the Services, and Merchant represents to HelloPatients that Merchant and its Users have obtained such consents, authorizations and releases. Merchant is responsible for training Users on HIPAA and other laws and regulations relating to the privacy and security of Patient Information and for ensuring that Users use the Services in compliance with such laws and regulations. Merchant is solely responsible for monitoring the access, use and disclosure of Patient Information by Users. Merchant understands that HelloPatients will not verify the accuracy of any Patient Information that Merchant or Users access, use or disclose in connection with the Services and Merchant is solely responsible for the accuracy of the Patient Information. Merchant represents and warrants that all Patient Information will be collected, shared and retained in compliance with applicable law. In the event a person signs up with HelloPatients for services with HelloPatients (e.g. a HelloPatients Wallet) and authorizes HelloPatients to retain and use such person’s information and data (including Protected Health Information), Merchant acknowledges and agrees that HelloPatients may use such information and data (even if provided solely by Merchant) in accordance with its agreement with such person and, notwithstanding anything to the contrary in this Agreement or any Business Associate Agreement between the Parties, to the extent permitted by law, HelloPatients may continue to retain, store and otherwise use such person’s data following termination or expiration of this Agreement.
    5. Healthcare Providers.
      • This Section applies to the extent Merchant or its Users are healthcare providers. HelloPatients does not provide professional medical, therapy or counseling services or advice to Merchant, Users or their patients, and Merchant and Users, as applicable, are solely responsible for the provision of any such services and advice to their patients. Any information or materials that are made available by HelloPatients are for informational and educational purposes only and are not intended as professional advice for Merchant, Users or their patients, and Merchant and Users assume full risk and responsibility for the use and dissemination of such information and materials.  HelloPatients does not endorse any products, items, services, methodologies or techniques.
    6. Merchant Compliance and Acknowledgement
      • THE SERVICES MAY INCLUDE A SOFTWARE PLATFORM THROUGH WHICH MERCHANT’S CUSTOMERS MAY SEEK AND OBTAIN FINANCING OPTIONS MADE AVAILABLE BY MERCHANT FOR AMOUNTS OWED BY SUCH CUSTOMER. IN NO WAY ARE THE SERVICES NOR HELLOPATIENTS INVOLVED IN, AND MERCHANT HEREBY HOLDS HELLOPATIENTS HARMLESS IN CONNECTION WITH, ANY SUCH FINANCING. THE SERVICES MERELY ENABLE THE SHARING OF INFORMATION AND COMMUNICATION BETWEEN MERCHANT AND CUSTOMERS IN CONNECTION WITH ANY SUCH FINANCING OPTION OFFERED BY MERCHANT. MERCHANT MUST ENTER INTO A DIRECT AGREEMENT WITH THE CUSTOMER WITH RESPECT TO ANY SUCH FINANCING. HELLOPATIENTS IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN MERCHANT AND THEIR CUSTOMERS IN CONNECTION WITH ANY SUCH FINANCING OPTIONS OR ACTIVITIES. HELLOPATIENTS IS NOT ACTING ON BEHALF OF OR FOR THE BENEFIT OF ANY MERCHANT OR ANY CUSTOMER, NOR IS MERCHANT ACTING ON BEHALF OF OR FOR THE BENEFIT OF HELLOPATIENTS, AND MERCHANT AND ITS USERS SHALL IN NOW WAY MISLEAD ANY PERSON OR ENTITY TO THE CONTRARY. HELLOPATIENTS DOES NOT CONTROL, AND HAS NO RIGHT TO CONTROL, MERCHANT’S FINANCING ACTIVITIES. FURTHER, HELLOPATIENTS IS NOT A LENDER, CREDITOR, OR MONEY TRANSMITTER.
  10. Security; Retention.
    1. The Gateway Services and the related data transmission shall be provided in accordance with the applicable requirements set by the Payment Card Industry Data Security Standards (“PCI-DSS”). Additionally, HelloPatients shall maintain appropriate technical and organization measures to secure Merchant Data from accidental loss and from unauthorized access, use, alteration, or disclosure. HelloPatients acknowledges that it is responsible for the security of cardholder data that HelloPatients possesses, stores, processes or transmits on behalf of Merchant. Merchant will provide security measures in accordance with best industry practices for all data residing on the devices owned, controlled or operated by Merchant. HelloPatients shall not be liable for any improperly processed transaction or third party, illegal or fraudulent access to Merchant’s accounts, IDs, passwords, data, personal information, transaction data or Merchant Data. If there is a security breach of Merchant’s system and/or unauthorized access to Merchant Data or transaction data, Merchant shall notify HelloPatients promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future, as required by HelloPatients. Merchant is solely responsible for the security of Merchant Data residing on servers owned or operated by Merchant, or any third party designated by Merchant (e.g., a hosting services provider, processor, or other service provider), including credit card numbers and any other Merchant Data. Merchant shall comply with all applicable laws and regulations governing the collection, retention and use by Merchant of credit card, Merchant Data and other financial information and agrees to provide all legally required notice to Merchant that discloses how and why personal and financial information is collected and used. Merchant shall use proper controls for, and limit access to, all Merchant Data or transaction data. Prior to discard, Merchant shall render all Merchant Data or transaction data unreadable and abide by any laws or regulations imposed on Merchant for Merchant Data or transaction data destruction and/or disposal. Merchant shall be solely responsible for compiling and retaining permanent records of all Merchant Data and transaction data for its reference.
  11. General
    1. Entire Agreement.
      • All schedules, annexes and exhibits attached to this Agreement are hereby made a part of this Agreement for all purposes. This Agreement represents the entire understanding between the parties hereto with respect to the matters contained herein and, except as otherwise provided in the Agreement, it may be amended only by an instrument in writing signed by both parties hereto.
    2. No Partnership or Agency.
      • Nothing in this Agreement shall be deemed to constitute a partnership, association or joint venture between the parties hereto, nor shall either party be deemed to constitute an agent of the other party for any purpose whatsoever.
    3. No Waiver; Cumulative Remedies.
      • The failure of either party hereto to exercise in any respect or on any occasion any right provided for by this Agreement shall not constitute or be deemed to constitute a waiver of any other right provided for by this Agreement or otherwise. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
    4. Assignment.
      • Neither party may assign this Agreement or any obligation, right or interest hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that HelloPatients may assign this Agreement to its parent, a subsidiary, affiliate or an entity that buys HelloPatients or substantially all of its assets.
    5. Governing Law; Venue.
      • This Agreement and the transactions contemplated hereby shall be governed by and construed under the law of the State of Illinois, U.S.A. and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Merchant agrees that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Chicago, Illinois. Each party hereby consents to the exclusive jurisdiction of such courts. The prevailing party shall be entitled to recover costs and attorneys’ fees. This Agreement shall be interpreted and construed in the English language, which is the language of the official text of this Agreement. Each party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
    6. Notice.
      • All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing by certified mail, return receipt requested; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
    7. Force Majeure.
      • Notwithstanding any other provision of this Agreement, neither party shall be liable for any failure, inability to perform, or delay in performance hereunder, if such failure, inability, or delay be due to acts of God, war, civil commotion, governmental action, fire, explosion, strikes, other industrial disturbances, equipment malfunction that is beyond its reasonable control, or any other cause that is beyond its reasonable control.
    8. Amendments.
      • This Agreement shall not be modified or amended except by a written document executed by each of the parties to this Agreement, and such written modification(s) or amendment(s) shall be attached hereto.
    9. Additional Documents.
      • HelloPatients and Merchant agree to execute any document or documents that may be requested from time to time by the other party to implement or complete such party’s obligations pursuant to this Agreement.
    10. Parties In Interest.
      • Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and permitted assigns of the parties to this Agreement. Neither this Agreement nor any other agreement contemplated in this Agreement shall be deemed to confer upon any person not a party to this Agreement any rights or remedies contained in this Agreement.
    11. Headings; Interpretation.
      • Headings are for convenience only and are not to be used in the interpretation of this Agreement. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
    12. Basis of Bargain.
      • EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
    13. Severability.
      • If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
    14. Counterparts.
      • This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
  12. Definitions
    1. “Credit Card Network”
      • means any network of issuing banks and acquiring banks that process payment cards of a specific brand, including Visa, MasterCard, American Express, and Discover. For purposes of this Agreement, Credit Card Networks include the (a) Payment Card Industry (PCI) Security Standards Council; and (b) the National Automated Clearing House Association.
    2. “Documentation”
      • means HelloPatients then-current guides and manuals published by HelloPatients and made generally available by HelloPatients for the Gateway Services.
    3. “Gateway Service(s)”
      • means the electronic data processing, storage and transmission services identified in the Service Order(s), and, agreed to in writing by the parties which may be executed and which shall be incorporated by reference into this Agreement. The Gateway Services may be modified, updated or otherwise changed from time to time as authorized by this Agreement.
    4. “HelloPatients Information”
      • means information, including information created or otherwise owned by HelloPatients or obtained by HelloPatients from third parties, related to the Gateway Services.
    5. “Location”
      • means an individual address for a retail store, a unique website URL, or other similar location.
    6. “Merchant Data”
      • means all electronic data or information submitted by Merchant to the Gateway Services.
    7. “Service Order”
      • means the ordering documents for Merchant’s purchases of Gateway Services from HelloPatients that are executed hereunder by the parties from time to time.
    8. “Taxes”
      • means direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes.
    9. “Users”
      • means individuals who are authorized by Merchant to use the Gateway Services, for whom subscriptions to the Gateway Services have been purchased, and who have been supplied user identifications and passwords by Merchant (or by HelloPatients at Merchant’s request). Users may include but are not limited to employees. consultants, contractors and agents of Merchant or its affiliates.
    10. “Work Product”
      • means all information or materials developed or created by HelloPatients during the course of providing support, implementation, consulting. training or other professional services to Merchant in accordance with this Agreement. Work Product does not include any Merchant Data or Merchant Confidential Information.

Annex 1

Support Services

Support Service Level Requirements

HelloPatients shall use commercially reasonable efforts to correct all Service Errors and respond to and Resolve all Support Requests in accordance with the required times and other terms and conditions set forth below (“Support Service Level Requirements”).

Support Requests

Merchant shall submit its requests for Service Error corrections and they will be classified in accordance with the descriptions set forth in the chart below (each a “Support Request”). Merchant shall notify HelloPatients of Support Requests by e-mail, telephone or such other means as the parties may hereafter agree to in writing.

Support Request Classification Description:

Any Service Error Comprising or Causing any of the Following Events or Effects

Critical Service Error ·                Issue affecting entire system or single critical production function;

·                System down or operating in materially degraded state; or

·                Widespread access interruptions.

High Service Error ·                Primary component failure that materially impairs its performance; or

·                Data entry or access is materially impaired on a limited basis.

Medium Service Error ·                Gateway Services are operating with minor issues that can be addressed with a work around.
Low Service Error ·                Request for assistance, information, services that are routine in nature, or updates that are desired but do not impair system operation or functionality.

Response and Resolution Time Service Levels

Response and Resolution times will be measured from the time HelloPatients receives a Support Request until the respective times HelloPatients has (i) responded to, in the case of response time and (ii) Resolved such Support Request, in the case of Resolution time. “Resolve” (including “Resolved”, “Resolution” and correlative capitalized terms) means that, as to any Service Error, HelloPatients has provided Merchant the corresponding Service Error correction. HelloPatients shall use commercially reasonable efforts to respond to and Resolve all Service Errors within the following times based on the severity of the Service Error:

Support Request Classification Response Time Resolution Time Service Level Credits

(For Failure to Respond to any Support Request Within the Corresponding Response Time)

Service Level Credits

(For Failure to Resolve any Support Request Within the Corresponding Required Resolution Time)

Critical Service Error 1 hour 4 hours 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 5% of such monthly Gateway Services fees for each additional 15 minute period or portion thereof that the corresponding Service Error is not responded to within the required response time. 1% of the fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for the first additional hour or portion thereof that the corresponding Service Error remains un-Resolved, which amount shall thereafter double for each additional 1 hour increment.
High Service Error 2 hour 12 hours 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 1 hour period or portion thereof that the corresponding Service Error is not responded to within the required response time. 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 4 hour period or portion thereof that the corresponding Service Error remains un-Resolved.
Medium Service Error 1 day 5 days 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional day or portion thereof that the corresponding Service Error is not responded to within the required response time. 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 5 day period thereafter or portion thereof that the corresponding Service Error remains un-Resolved.
Low Service Error 1 day 30 days 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional day or portion thereof that the corresponding Service Error is not responded to within the required response time. 1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 30 day period thereafter or portion thereof that the corresponding Service Error remains un-Resolved.

Support Service Level Credits

Failure to achieve any of the Support Service Level Requirements will constitute a Service Level Failure for which HelloPatients shall issue to Merchant the corresponding service credits set forth above (“Service Level Credits”). The parties acknowledge and agree that each of the Service Level Credits assessed: (a) are a reasonable estimate of the diminished value of the Gateway Services and compensation for the anticipated or actual harm to Merchant that may arise from the corresponding Service Level Failure, which would be impossible or very difficult to accurately estimate; and (b) shall be credited or set off against any Gateway Services fees or other charges payable to HelloPatients under this Agreement. No Service Level Credits (together with any Service Level Credits) for any month shall exceed ten percent (10%) of the total amount of Gateway Services fees that would be payable for that month if the Gateway Services were fully provided in accordance with this Agreement. Any Service Level Credit payable to Merchant under this Agreement will be issued to Merchant in the calendar month following the month in which the Service Level Failure occurred. This Section sets forth HelloPatients’ sole obligation and liability and Merchant’s sole remedy for any Service Level Failure.

Corrective Action Plan

If four (4) or more Critical Service Errors occur in any thirty (30) day period during (a) the Term or (b) any additional periods during which HelloPatients does or is required to perform any Gateway Services, HelloPatients shall promptly investigate the root causes of these Service Errors and provide to Merchant within five (5) business days of its receipt of notice of the second such Support Request an analysis of such root causes and a proposed written corrective action plan for Merchant’s review, comment and approval, which, subject to and upon Merchant’s written approval, shall be a part of, and by this reference is incorporated in, this Agreement as the parties’ corrective action plan (the “Corrective Action Plan”). The Corrective Action Plan shall include, at a minimum: (x) HelloPatients’ commitment to Merchant to devote the appropriate time, skilled personnel, systems support and equipment and other resources necessary to Resolve and prevent any further occurrences of the Service Errors giving rise to such Support Requests; (y) a strategy for developing any programming, software updates, fixes, patches, etc. necessary to remedy, and prevent any further occurrences of, such Service Errors; and (z) time frames for implementing the Corrective Action Plan. There will be no additional charge for HelloPatients’ preparation or implementation of the Corrective Action Plan in the time frames and manner set forth therein.

Availability Service Levels.

Subject to the terms and conditions of this Agreement, HelloPatients will use commercially reasonable efforts to make the Gateway Services Available (as defined below) at least ninety-nine percent (99%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section (the “Availability Requirement”). Support is available by phone or email during 8am-6pm US Pacific Time. Merchant must submit a case by submitting an email to [EMAIL] to initiate the support case and all support will be provided remotely. “Availability Service Level Failure” means a material failure of the Gateway Services to meet the Availability Requirement. “Available” and “Availability” mean the Gateway Services are available for access and use by Merchant and its Users. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither will the Gateway Services be considered un-Available nor any Availability Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Merchant or its Users to access or use the Gateway Services that is due, in whole or in part, to any: (a) access to or use of the Gateway Services by Merchant or its Users, or using Merchant’s or an User’s access credentials, that does not strictly comply with this Agreement; (b) Merchant’s delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Merchant’s or its Users’ Internet connectivity; (d) force majeure event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by HelloPatients pursuant to this Agreement; (f) scheduled downtime on weekends for routine maintenance of which HelloPatients has provided Merchant’s Users at least 48 hours’ prior notice via email or though the Gateway Services; (g) emergency maintenance of which HelloPatients has provided Merchant at least 30 minutes prior notice via email or though the Gateway Services or (h) disabling, suspension or termination of the Services pursuant to the Agreement.

Availability Service Level Failures and Remedies. In the event of a Availability Service Level Failure, HelloPatients will issue a credit to Merchant in the amount set forth in the table below, measured as a percentage of the monthly fees (or pro rata equivalent thereof) for the applicable Gateway Services paid or payable for the Service Period the Availability Service Level Failure occurred (each a “Service Credit”).

Availability Service Credit (as percentage of monthly fees)
99.00% – 100% 0%
97.0% – 98.89% 1%
95.0% – 96.99% 3%
90.0% – 94.99% 5%
< 90.0% 10%

Notwithstanding the foregoing, HelloPatients has no obligation to issue any Service Credit unless Merchant: (i) reports the Service Failure to HelloPatients immediately upon becoming aware of it, and (ii) requests such Service Credit in writing within 10 days of the Availability Service Level Failure. Additionally, in no event will a Service Credit for any Service Period exceed ten percent (10%) of the total monthly fees (or pro rata equivalent thereof) that would be payable for that Service Period if no Availability Service Level Failure had occurred. Any Service Credit payable to Merchant under this Agreement will be issued to Merchant in the calendar month following the Service Period in which the Availability Service Level Failure occurred. This Section sets forth HelloPatients’ sole obligation and liability and Merchant’s sole remedy for any Availability Service Level Failure.

User Agreement

Effective Date: April 1, 2020

These User Terms (“Terms”) govern your use of the products and services provided by or on behalf of Real Patient Solutions, Inc. d/b/a HelloPatients (“HelloPatients”, “HPT”, “we”, “our” or “us”), including any content or information provided therewith (collectively, the “Services”).

Our Privacy Policy, available at https://hellopatients.com/privacy-policy, is incorporated by reference into these Terms. Please read these Terms and the Privacy Policy carefully before you access the Services, as these Terms form a binding legal agreement between you and HelloPatients.

These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICES. YOUR USE OF OUR SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE HELLOPATIENTS PRIVACY POLICY.

 

  1. Services
    1. Overview of Services.
      • The Services enable you to manage your wallet (including adding and removing Payment Accounts for use in connection with your HelloPatients Account), review account activity and perform other activities enabled by the Services from time to time in HelloPatients’ sole discretion, including the Transaction Service.
    2. Definitions.
      1. “Customer” means a person who registers for the Services.
      2. “HelloPatients Account” means the account assigned to you by HelloPatients when you accept these Terms.
      3. “Payment Account” means a [credit card, debit card, ACH-enabled checking or savings account, gift card or other prepaid payment method, and/or other financial account] that is registered in a Customer’s HelloPatients Account.
      4. “Product(s)/Service(s)” means any merchandise, good or service that a Purchaser may purchase using the Services.
      5. “Purchaser” means a Customer using the Services to purchase goods or services from, or to otherwise make a payment to, a Seller.
      6. “Seller” means a person or entity who uses the Transaction Service to process Transactions from Purchasers.
      7. “Transaction” means the processing of a payment that results in the debiting, charging, or other related transaction, of the Transaction Amount to a Purchaser’s Payment Account.
      8. “Transaction Amount” means the dollar amount of a Transaction to pay for a Product/Service, and any related fees, taxes or shipping charges, as applicable.
      9. “Transaction Service” means the service by which HelloPatients holds a Purchaser’s registered Payment Account information in Purchaser’s HelloPatients Account and, at the time of Purchaser’s purchase from, or other payment to, a Seller using such Payment Account, HelloPatients provides such information to Seller (or Seller’s card processor, including potentially HelloPatients itself) for processing through a payment network, which Seller, in turn, provides to the issuer of Purchaser’s Payment Account for approval and financial settlement through a payment network to the Seller.
    3. Establishing a HelloPatients Account.
      • When you accept these Terms (for example, when first registering a Payment Account through the Services), you are creating a HelloPatients Account. Depending on the Services you use, you may be asked to provide information such as your name, contact information, Payment Account information (including your bank name, routing number and account number for the account, if applicable), date of birth, and/or your social security number. HelloPatients may verify your registration information with a third-party verification service provider. We may also ask you to answer additional questions to help us verify your identity or provide additional information, such as a copy of your photo ID (e.g. driver’s license or passport). The information you provide will be used to determine if you are eligible to use the Services. In order to use the Transaction Service and make Transactions, you must provide all information required and register a valid Payment Account. You authorize HelloPatients to confirm that your Payment Account is in good standing with the issuing financial institution, including by submitting a request for a payment authorization and/or a low dollar credit and/or debit to the Payment Account in accordance with the relevant card association rules. HelloPatients may refuse to approve, or may terminate existing, registrations for the Transaction Service with or without cause or notice to the extent permitted by applicable law.
    4. Transaction Service.
      • The Transaction Service facilitates a purchase by a Purchaser (using a Payment Account) from a Seller that is registered with, or otherwise enabled by, HelloPatients or its customers or partners to receive certain merchant payment processing services. The Transaction Service stores information from Purchasers, such as their Payment Accounts [and shipping information]. When Purchaser chooses to pay for Products/Services with the Transaction Service, Purchaser authorizes the Seller to submit charges (and, in the case of refunds, credits) to Purchaser’s registered Payment Account. HelloPatients may assist as agent of the Seller in accessing a payment network and processing the Transaction. Once Purchaser’s registered Payment Account is authorized, Purchaser’s payment obligation to Seller shall be deemed completed and discharged (except for Purchaser’s obligations in the event of a chargeback or other reversal). Purchases made through the Transaction Service are also subject to the terms and conditions governing Purchaser’s Payment Account between Purchaser and the issuer of the Payment Account. Purchaser is responsible for any charges and related fees that may be imposed under the Payment Account terms and conditions as a result of Purchaser’s use of a Payment Account. You acknowledge and agree that your purchases of Products/Services are transactions between you and the Seller, and not with HelloPatients. HelloPatients is not a party to your Transaction for the purchase of Products/Services, and HelloPatients is not a Purchaser or a Seller in connection with any Transaction, unless expressly designated as such in the listing of the Product/Service. You also agree that HelloPatients may update your Payment Account information, including expiration date and card number, due to information received under certain account updater programs created by payment networks. Under these programs, enrolled card issuers and merchants can provide and receive up-to-date payment card-related information from payment networks regarding your Payment Accounts stored by HelloPatients. HelloPatients may reflect these changes to your stored Payment Account to prevent payment failure or service termination. You also agree that a Seller and HelloPatients, acting on behalf of the Seller, may resubmit a Transaction for a Product/Service purchase to the payment network for processing one or more times in the event that a prior Transaction is declined or returned by the payment network.
    5. Transaction Service Fees.
      • HelloPatients does not charge a fee to use the Transaction Service as a Purchaser. The financial institution that issues your Payment Account may charge a fee in connection with the debiting or charging of the Payment Account resulting from the Transaction. You should consult the terms and conditions governing your Payment Account for more information about any such fees.
    6. Refunds.
      • Except as set forth in these Terms, all Transactions processed through the Transaction Service are non-refundable to Purchaser by HelloPatients and are non-reversible by Purchaser through the Transaction Service. You may have additional refund or charge-back rights under your Payment Account issuer agreement or applicable state and federal laws. You should review your periodic statement received from the issuer of your Payment Account which will reflect all purchase transactions through the Transaction Service.
    7. Recurring Transactions.
      • In the event that the Transaction Service offers you the ability to pay for recurring transactions, your recurring transactions will start when first authorized by you. This is a recurring billing transaction. Unless otherwise stated, your recurring transaction and the relevant billing authorization will continue indefinitely until cancelled by you. In such event, you authorize the applicable Seller to bill your chosen Payment Account each designated billing period for the recurring transaction period at the applicable Transaction Amount. [You further authorize the applicable Seller to charge the applicable Transaction Amount to your alternate Payment Account, if you have selected one in your HelloPatients Account, in the event that the Seller is unable to charge to your designated Payment Account for any reason.] The Transaction Amount will continue to be charged to your Payment Account [or alternate Payment Account (if applicable)] each billing period, until you cancel your recurring transaction. The billing rate is subject to change by the Seller during the recurring transaction period.
    8. Permissible Transactions.
      • You may only use the Transaction Service to process a Transaction for a Product/Service that is purchased from a Seller through a legitimate, bona fide sale of the Product/Service. The Transaction Service may not be used to process a Transaction, or otherwise transfer money between a Purchaser and Seller, that is unrelated to a purchase of a Product/Service. The Transaction Service may not be used to receive cash advances from Sellers or to facilitate the purchase of cash equivalents (travelers checks, prepaid cards, money orders, etc.). You may not use the Transaction Service to purchase any illegal goods or services or for any other underlying illegal transaction. You agree that you will not use the Transaction Service to purchase any Products/Services that violate these Terms, other policies or rules applicable to the Transaction Service, or applicable law. Failure to comply with these limitations may result in suspension or termination of your use of the Transaction Service.
    9. No Endorsement of Products/Services.
      • HelloPatients does not represent or endorse, and shall not be responsible for: (a) the reliability or performance of any Seller, merchant or Third Party Provider; (b) the safety, quality, accuracy, reliability, integrity or legality of any Products/Services; (c) the truth or accuracy of the description of any Product/Service, or of any advice, opinion, offer, proposal, statement, data or other information (collectively, “TP Content”) displayed or distributed, purchased or paid through the Services; or (d) your ability to buy Products/Services using the Services. HelloPatients hereby disclaims any liability or responsibility for errors or omissions in any TP Content in the Services. HelloPatients reserves the right, but shall have no responsibility, to edit, modify, refuse to post or remove any TP Content, in whole or in part, that in its sole and absolute discretion is objectionable, erroneous, illegal, fraudulent or otherwise in violation of these Terms.
    10. Not a Banking Institution or Issuer.
      • HelloPatients is not a bank or other chartered depository institution. HelloPatients is not an issuer of any Payment Account. These Terms do not amend or otherwise modify your agreement with the issuer of your Payment Account, and you are responsible for ensuring your use of the Services complies with such agreements. Use of the Services is not approved by or offered in conjunction with the issuer of your Payment Account. Your Payment Account issuer may impose fees, transaction limits, or other limitations on transactions incurred using the Services. In the event of any inconsistency between these Terms and your agreement with the issuer of your Payment Account, these Terms govern the relationship between you and HelloPatients solely with respect to the Services, and your agreement with the issuer of your Payment Account governs the relationship between you and the issuer of such item. You acknowledge and agree that you are solely responsible for the Payment Account, and any other information you enter or otherwise store in connection with the Services. HelloPatients is not responsible for the accuracy or availability of any information you enter or otherwise store with the Services, including, without limitation, whether such information is current and up-to-date.
    11. Communication with Issuers.
      • By electing to use the Services, you authorize HelloPatients, directly or through such Services, to communicate with the issuer of your Payment Account to provide or obtain any information required by that issuer. In providing this information, an issuer does not endorse and is not responsible for the Services.
    12. Third Party Providers.
      • HelloPatients may have arranged for third party providers to provide Products/Services to you through the Services (“Third Party Providers”). In order to use these Products/Services, you may be required to agree to additional terms and conditions from those Third Party Providers, and may be subject to additional requirements of the Third Party Provider. By agreeing to these Terms or continuing to use the Services, you hereby agree to any Third Party Provider terms that apply to your use of such Products/Services and the Services, which may be updated from time to time. For avoidance of doubt, these Third Party Provider terms are between you and the applicable Third Party Provider, not HelloPatients.
    13. Sharing Payment Account Details with Third Parties.
      • Where requested by you, HelloPatients may pass details of your Payment Account and related information to a third party for that third party to charge the Payment Account for goods or services it will supply to you. You acknowledge and agree that your purchases made are transactions between you and the third party and not with HelloPatients. You should contact the third party or your Payment Account issuer directly regarding any issues with such third-party transactions, including refunds and disputes.
    14. Disclaimer.
      • HELLOPATIENTS IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT ACCOUNT INFORMATION, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH INFORMATION IS CURRENT AND UP-TO-DATE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH INFORMATION IS REPORTED BY THE ISSUER AS OF A PARTICULAR TIME ESTABLISHED BY THE ISSUER AND MAY NOT ACCURATELY REFLECT YOUR CURRENT TRANSACTIONS, AVAILABLE BALANCE, OR OTHER ACCOUNT OR PROGRAM DETAILS AT THE TIME THEY ARE DISPLAYED TO YOU THROUGH THE SERVICES OR AT THE TIME YOU MAKE A PURCHASE. YOU MAY INCUR FEES, SUCH AS OVERDRAFT FEES OR OTHER CHARGES AS A RESULT OF SUCH TRANSACTIONS, PER YOUR AGREEMENT WITH YOUR PAYMENT ACCOUNT ISSUER, OR YOUR ATTEMPT TO MAKE A PURCHASE MAY NOT BE SUCCESSFUL.
      • THE SERVICES MAY INCLUDE A SOFTWARE PLATFORM THROUGH WHICH PURCHASERS MAY SEEK AND OBTAIN FINANCING OPTIONS MADE AVAILABLE BY OR ON BEHALF OF SELLERS FOR AMOUNTS OWED BY PURCHASERS. IN NO WAY ARE THE SERVICES NOR HELLOPATIENTS INVOLVED IN, AND YOU HEREBY HOLD HELLOPATIENTS HARMLESS IN CONNECTION WITH, ANY SUCH FINANCING. THE SERVICES MERELY ENABLE THE SHARING OF INFORMATION AND COMMUNICATION BETWEEN PURCHASERS AND SELLERS IN CONNECTION WITH ANY SUCH FINANCING OPTION OFFERED BY MERCHANT. SELLERS AND PURCHASERS MUST ENTER INTO A DIRECT AGREEMENT WITH RESPECT TO ANY SUCH FINANCING. HELLOPATIENTS IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN BUYERS AND SELLERS IN CONNECTION WITH ANY SUCH FINANCING OPTIONS OR ACTIVITIES. HELLOPATIENTS IS NOT ACTING ON BEHALF OF OR FOR THE BENEFIT OF ANY PURCHASER OR SELLER, NOR IS ANY PURCHASE OR SELLER ACTING ON BEHALF OF OR FOR THE BENEFIT OF HELLOPATIENTS. HELLOPATIENTS DOES NOT CONTROL, AND HAS NO RIGHT TO CONTROL, YOUR FINANCING ACTIVITIES. FURTHER, HELLOPATIENTS IS NOT A LENDER, CREDITOR, OR MONEY TRANSMITTER. HELLOPATIENTS DOES NOT ENDORSE NOR REFER ANY PURCHASER TO ANY SELLER OR ANY SELLER TO ANY PURCHASER.
  2. Your Eligibility; Your Responsibility
    • To be eligible to use the Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to HelloPatients; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of HelloPatients or a third party.
    • You assume all responsibility for your use of, and access to, the Services. Accounts are for a single user, company or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of a company or other legal entity, is prohibited. For example, sharing a login between non-entity individual users is prohibited.
  3. Personal Information; Your Content; Your Account; Health Information
    1. Accuracy.
      • By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
    2. Privacy; Data.
      • To use our Services, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the HelloPatients Privacy Policy, available at https://hellopatients.com/privacy-policy/. HelloPatients may collect and use data and information from or about you (including Content) as necessary or appropriate to provide the Services and for any other lawful purpose in accordance with the Privacy Policy.
    3. Your Content.
      • As between you and HelloPatients, you own the information, materials, photos, or other content (the “Content”) you provide HelloPatients under this Agreement. Any Content that you upload or otherwise provide to HelloPatients in connection with the Services may be used by HelloPatients in order to provide and promote the Services or HelloPatients’ business. Accordingly, you grant to HelloPatients, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. Such right to use such Content shall survive the termination of these Terms and termination of the Services. Notwithstanding the foregoing, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and HelloPatients. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). HelloPatients may also remove or delete your Content from the Services at any time in its sole discretion.
    4. Interactions with Other Users.
      • You are solely responsible for all interactions with other users. You acknowledge and agree that we do not have an obligation to verify any Content or other information provided by users on the Services. HelloPatients is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. You are solely responsible for your interactions with other users. Additionally, HelloPatients is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release HelloPatients from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Services, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Services or were otherwise provided by a user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Services.
    5. Your Account.
      • Except for your Content licensed to us as set forth above, the account(s) you create (including your HelloPatients Account) and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
    6. Feedback.
      • You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Services or otherwise relating to HelloPatients (“Feedback”) to HelloPatients. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and HelloPatients shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from HelloPatients under any circumstances relating to such Feedback.
    7. Health Information.
      • If you are using the Services as a patient of a healthcare provider or in a similar context where the following terms would be applicable, the following terms apply:
      • You hereby authorize the receipt, use, and disclosure of your Protected Health Information, as defined in 45 CFR 160.103 (“PHI”), from any health plan, physician, health care professional, hospital, clinic, laboratory, pharmacy, medical facility, or other health care provider (each a “Provider”) that has provided payment, treatment, or services to you or on your behalf, by HelloPatients in accordance with this Agreement and our Privacy Policy.
      • In the event our relationship terminates with one or more Providers that you have a relationship with and provides information to us relating to you, you authorize us to maintain such information on your behalf.
      • You authorize HelloPatients to use and disclose your health information to provide you with the Services. You understand that your Protected Health Information may contain sensitive information. Unless you expressly revoke it, your authorization shall remain in effect for so long as you use our Services and for a period of six (6) months thereafter; provided, however, that we may retain your information after such date for so long as necessary to fulfill the purpose(s) for which it was collected, as authorized by you, and to comply with applicable laws.
      • You acknowledge that your use of the Services may be in connection with HelloPatients’ agreement with certain healthcare providers (each such agreement a “Provider Agreement”). You agree that this Agreement is an independent agreement and that the termination of a Provider Agreement does not terminate this Agreement. Accordingly, in the event you make a payment through our Services after the applicable Provider Agreement is terminated, you agree that this Agreement shall still apply to those payments and that we may facilitate the payment in accordance with your instruction. Additionally, subject to the terms of this Agreement and the Privacy Policy, we may retain all information about you provided by the applicable Provider following termination of a Provider Agreement. You acknowledge that, except as expressly provided otherwise, this Agreement is solely between you and HelloPatients.
      • HelloPatients does not provide professional medical, therapy or counseling services or advice. Any information or materials that are made available by HelloPatients are for informational and educational purposes only and are not intended as professional advice, and you assume full risk and responsibility for the use and dissemination of such information and materials. HelloPatients does not endorse any products, items, services, methodologies or techniques.
  4. Personal Use; Limited License; Ownership
    • Subject to the terms and conditions herein, HelloPatients grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Services through a generally available mobile device, web browser or HelloPatients authorized website to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host content for others. You may not copy or download any content from the Services except with the prior written approval of HelloPatients. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and HelloPatients.
    • Furthermore, without the prior written approval of HelloPatients, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Services. Any commercial use not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using. The Services provided by HelloPatients are licensed, not sold. The Services, and all copies of the Services, are owned by HelloPatients or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. HelloPatients reserves all rights not expressly granted to you herein. You agree that you have no right to any HelloPatients trademark or service mark and may not use any such mark in any way unless expressly authorized by HelloPatients.
    • Making unauthorized copies or distribution of Services content or otherwise violating these Terms may result in the termination of your account, prohibition on use of the Services, and further legal action. HelloPatients reserves the right to limit your use of or access to the Services, in its sole discretion in order to maintain the performance and availability of the Services and to enforce these Terms.
    • HelloPatients is not liable for the loss, corruption, alteration or removal of any content transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold HelloPatients harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Services
  5. Fees; Payment Terms; Credits
    • If you purchase any Services that we offer for a fee (“Paid Services”), you agree to pay the applicable fees for the Paid Services when due plus all related taxes. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. Unless otherwise denoted, all fees are assessed in U.S. dollars. You also agree that HelloPatients and its third-party service providers providing payment processing services may store your payment information (including Payment Accounts). We may charge your payment information for subsequent charges you authorize, such as account upgrades or other special charges authorized by you. If the payment method you use with us reaches its expiration date and you do not edit the applicable information or cancel such Paid Service, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts. If you purchase a subscription to a Paid Service, you will be billed for your first month immediately upon purchasing or upgrading to a subscription account. Unless otherwise set forth on an applicable ordering document incorporating these Terms, the Services are billed in advance on a monthly basis and are non-refundable. For any upgrade or downgrade in plan level, your payment information will automatically be charged the new rate on your next billing cycle in addition to the prorated change in the amount of your subscription for the remainder of the current billing cycle (downgrading your plan level may cause the loss of features or capacity of your account; HelloPatients does not accept any liability for such loss). Your subscription account shall automatically renew, provided that you may cancel the subscription any time before the end of the current billing period and the cancellation will take effect on the next billing period. You shall retain access to such Paid Services from the time you cancel until the start of the next billing period, but you will not receive a refund or credit for any days remaining in your current billing period. You agree to reimburse us for all collection costs and interest for any overdue amounts.
    • HelloPatients may offer certain customers free trials to Paid Services. If you purchase a subscription to a Paid Service that includes a free trial, you will receive free access to such Paid Service for the duration of the free trial period. At the end of the applicable free trial period, you will be charged the price of the subscription for such Paid Service and may continue to be charged until you cancel your subscription. To avoid charges, you must cancel before the end of the free trial period.
    • Failure to pay may result in the termination of your subscription. You may cancel or suspend your Paid Services by contacting HelloPatients at helpdesk@hellopatients.com. Unless expressly stated to the contrary, we do not guarantee refunds for lack of usage, dissatisfaction or any other reason.
    • Paid Services may be subject to additional terms, in addition to these Terms, related to the provision of the Paid Service.
  6. Acceptable Use Policy
    1. You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use our Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
      • Acts that may materially and adversely affect the quality of other users’ experience;
      • Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
      • Introducing malicious programs into HelloPatients’ Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
      • Engaging in any monitoring or interception of data not intended for you without authorization;
      • Attempting to circumvent authentication or security of any host, network, or account without authorization;
      • Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
      • Adapt, modify or create derivative works based on the Services, technology underlying the Services, or other users’ content, in whole or part;
      • Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by HelloPatients in writing;
      • Using any method, software or program designed to collect identity information, authentication credentials, or other information;
      • Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
      • Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
      • Transmitting, receiving, uploading, using or reusing material that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
      • Falsifying user identification information;
      • Using the Services for anything other than lawful purposes including, but not limited to, violating any applicable local, state, national or international law; or
      • Impersonating any person or entity, including, but not limited to, a HelloPatients representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
  7. Copyright Protected Materials
    • HelloPatients respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. HelloPatients has the right, but not the obligation, to remove from the Services any files, material, information, software or other material HelloPatients believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
    • If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: helpdesk@hellopatients.com
  8. Right to Restrict or Terminate Access
    • HelloPatients may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that HelloPatients in its reasonable discretion believes violates the letter or spirit of any of these Terms. If HelloPatients denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.
    • HelloPatients may at any time choose to suspend indefinitely or terminate the Services for any purpose. In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, HelloPatients reserves the right to delete all of your Content, data, and other information stored on HelloPatients’ servers. HelloPatients will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by HelloPatients pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, HelloPatients will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Services, or the termination thereof.
    • You may terminate these Terms by terminating your use of the Services and any related account. HelloPatients may terminate these Terms or suspend your use or access of the Services at any time upon written notice to you. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. Termination of these Terms or the Services does not relieve you from your obligation to pay HelloPatients any amounts owed to HelloPatients.
  9. Security
    • You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to HelloPatients any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords.
  10. Disclaimer of Warranty
    • Actual service coverage, speeds, locations and quality may vary. HelloPatients will attempt to provide the Services at all times, except for limited periods for maintenance and repair. However, the Services may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Services or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users or the Services. The accuracy and timeliness of data received is not guaranteed.
    • YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. HELLOPATIENTS DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. HELLOPATIENTS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
    • SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, HELLOPATIENTS’ WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
  11. Limitation of Liability
    • UNDER NO CIRCUMSTANCES WILL HELLOPATIENTS, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“HELLOPATIENTS PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
    • A HELLOPATIENTS PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID HELLOPATIENTS FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
    • SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE HELLOPATIENTS PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
    • EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY HELLOPATIENTS TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE SECTION ABOVE WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
  12. Indemnity
    • You agree to defend, indemnify and hold the HelloPatients Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any rights of another; or (iv) your use of the Services. HelloPatients reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
  13. Dispute Resolution
    • Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
  14. Electronic Notices and Disclosures
    • You acknowledge and agree that HelloPatients may provide notices and other disclosures to you electronically by posting such notices or other disclosures on HelloPatients’ website or by emailing it to you at any email address provided to HelloPatients by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
  15. Changes to the Terms
    • We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the website page hosting these Terms. As your next visit to or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.
    • Your use or continued use of the Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
  16. Third-Party Terms & Content
    1. We do not control, and we are not responsible for, any data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
    2. From time to time, the Services may contain references or links to third-party materials not controlled by HelloPatients or its suppliers or licensors. HelloPatients provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that HelloPatients is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that this Agreement does not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.
    3. If you are accessing the Services through an application from the Apple App Store, you and HelloPatients agree to the following additional terms:
      • HelloPatients and you acknowledge that these Terms are concluded between you and HelloPatients only, and not with Apple, and HelloPatients, not Apple, is solely responsible for the Services and the content thereof. HelloPatients and you agree to be bound by the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
      • You may only access the Services on an iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
      • To the extent set forth herein or required by applicable law, HelloPatients is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
      • HelloPatients, not Apple, is solely responsible for any product warranties set forth in these Terms, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be HelloPatients’ sole responsibility, to the extent not disclaimer herein.
      • HelloPatients and you acknowledge that HelloPatients, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
      • Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or your possession and use of the Services infringe any third party’s intellectual property rights.
      • If you send SMS messages through Services, you acknowledge that standard text messaging rates or other carrier charges may apply to such use.
      • If you authorize HelloPatients to access your Address Book on your iOS product, you acknowledge and agree that HelloPatients may access and use such data to invite share job with your contacts.
    4. HelloPatients may send you Push Notifications and use your geo-location data if you authorize HelloPatients to do so.
  17. Miscellaneous
    • These Terms, along with any rules, guidelines, or policies published on the HelloPatients homepage constitute the entire agreement between HelloPatients and you with respect to your use of our Services. If there is any conflict between the Terms and any other rules or instructions posted on the Services, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by HelloPatients. Notwithstanding the foregoing, HelloPatients reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. These Terms shall be governed by, and construed in accordance with, the laws of the state of Illinois, without reference to its choice of law rules. Subject to the arbitration provisions above, exclusive venue for any action arising out of or in connection with this agreement shall be in Chicago, Illinois. The parties each hereby consent to the jurisdiction and venue in Chicago, Illinois and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that HelloPatients shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. You may not assign your rights or obligations under these Terms without the prior written consent of HelloPatients. HelloPatients’ failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that HelloPatients may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to HelloPatients, pursuant to this Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to HelloPatients. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services. Except as otherwise expressly set forth herein, there shall exist no right of any person, other than you and HelloPatients, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by this Agreement.

If you have any questions, complaints, or claims, you may contact HelloPatients by:

Send email to: info@hellopatients.com

Send mail to our address:

Real Patient Solutions, Inc.
Attn: Privacy Policy Inquiry
53 Longbow Lane
Springfield, IL, 62704

Business Associate Agreement

This Business Associate BAA (this “BAA”) is entered into on the Effective Date, by and between Real Patient Solutions, Inc. d/b/a HelloPatients (“Business Associate”) and the “Covered Entity” entering into this BAA with Business Associate (“Covered Entity”).  Business Associate and Covered Entity may be referred to herein as a “Party” or the “Parties.”

RECITALS:

Covered Entity provides services that pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) requires Covered Entity to restrict the uses and disclosures of Protected Health Information, as defined by HIPAA, in accordance with the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 160 and Part 164, Subparts A and E as amended from time to time (the “Privacy Rule”), and Subparts A and C as amended from time to time (the “Security Rule”) under HIPAA, which was amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), as Title XIII Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (Pub.L. 111-5).  Pursuant to the agreement between Covered Entity and Business Associate to which this BAA is related (the “Agreement”), Business Associate is receiving access to use or disclose Protected Health Information for the purposes of facilitating Covered Entity’s services and supporting the needs of Covered Entity’s clients.  Thus, pursuant to the state and federal regulations and to the extent Business Associate receives, uses, discloses or creates Protected Health Information as a service to Covered Entity and is deemed a “Business Associate” pursuant to the HIPAA laws, as amended by HITECH Act, and state privacy and security laws that are not preempted by HIPAA, Business Associate agrees to comply with the applicable regulations.

NOW, THEREFORE, the Parties, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, do hereby agree as follows:

  1. Definitions. Unless otherwise provided in this BAA, capitalized terms shall have the same meanings as set forth in the Standards for Privacy or Security of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, Subparts A,C and E.
    1. “Breach”
      • shall have the same meaning as the term “breach” given in 45 C.F.R. § 164.402, as amended by HITECH Act and shall include the unauthorized acquisition, access, use or disclosure of Protected Health Information that compromises the security or privacy of such information.
    2. “Designated Record Set”
      • shall mean a group of records maintained by or for a covered entity that is (i) the medical records and billing records about Individuals maintained by or for the covered entity, (ii) enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a Health Plan, and (iii) used, in whole or in part, by or for the covered entity to make decisions about Individuals. For the purposes of this paragraph, the term “Record” means any items, collection, or grouping of information that includes PHI and is maintained, collected, used, or disseminated by or for covered entity.
    3. “Electronic Protected Health Information” or “Electronic PHI”
      • shall have the meaning in 45 C.F.R. 160.103.
    4. “HHS”
      • shall mean the United States Department of Health and Human Services.
    5. “Individually Identifiable Health Information”
      • shall mean information that is a subset of health information, including demographic information, that is collected from an Individual and (1) is created or received by a covered entity or an employer; (2) relates to the past, present or future physical or mental health or condition of an Individual, the provision of healthcare to an Individual, or the past, present, or future payment for the provision of healthcare to an Individual; and (3) identifies the Individual, or there is a reasonable basis to believe the information can be used to identify the Individual.
    6. “Individual(s)”
      • shall have the same meaning as the term “individual” in 45 C.F.R. 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. 164.502(g).
    7. “Privacy Rule”
      • shall mean the Standards for Privacy of Individually Identifiable Health Information found at 45 C.F.R. Part 160 and Part 164, Subparts A and E, in effect or as amended, and with which compliance is required.
    8. “Protected Health Information (“PHI”)”
      • shall have the same meaning as the term “protected health information” in 45 C.F.R. 160.103.
    9. “Required by Law”
      • shall have the same meaning as the term “required by law” in 45 C.F.R. 164.103.
    10. “Secretary”
      • shall mean the Secretary of HHS or his/her designee.
    11. “Security Incident
      • shall have the meaning as the term “Security Incident” in 45 C.F.R. 164.304, which means the attempted or successful unauthorized access, use, disclosure, modification or destruction of information or interference with system operations in an Information System.
    12. “Security Rule”
      • shall mean the Standards for Security of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, Subparts A and C, in effect or as amended, and with which compliance is required.
    13. “Unsecured PHI”
      • shall mean Protected Health Information that is not secured through the use of a technology or methodology specified by the Secretary in guidance or as otherwise defined by the HITECH Act.
  2.  Obligations and Activities of Business Associate. To the extent Business Associate satisfies the definition of a business associate under HIPAA, Business Associate agrees to comply with the following:
    1. Permitted Uses.
      • Business Associate agrees to use or disclose PHI in accordance with the terms of this BAA or as Required by Law. Subject to the terms of this BAA, Business Associate may use and disclose PHI as necessary to perform under the Agreement.
    2. Appropriate Safeguards.
      • Business Associate agrees to implement appropriate and reasonable administrative, technical and physical safeguards to prevent use or disclosure of the PHI other than as provided for by this BAA.
    3. Mitigation.
      • Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of the requirements of this BAA.
    4. Reporting.
      • Business Associate agrees to report to Covered Entity any use or disclosure of the PHI not provided for by this BAA or any successful Security Incident of which it becomes aware. Upon discovery of a breach of the security of PHI or a Security Incident, Business Associate shall notify Covered Entity within fifteen (15) business days. Notice should include the identification of each individual whose PHI has been or is reasonably believed to have been breached, the type of PHI that was believed to be disclosed, the mitigation actions taken by Business Associate to prevent future breaches and any other information necessary for the Covered Entity to comply with the notification requirements promulgated by HIPAA and HITECH.  The parties acknowledge that this BAA shall serve as notice of unsuccessful Security Incidents and the notice requirements described herein shall exclude trivial attempts that do not result in unauthorized access, use, disclosure, modification or destruction of PHI that is electronic PHI, nor result in material interference with system operations in an information system, including without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, and denials of service, which were successfully defended by Business Associate and did not provide access to the PHI or ePHI.
      • Business Associate agrees to notify Covered Entity of any Breach of Unsecured Protected Health Information within fifteen (15) business days of the date Business Associate learns of the Breach. Business Associate shall provide such information to Covered Entity as required of business associates by the Breach Notification Standards set forth in the HITECH Act and its implementing regulations.
    5. Agents and subcontractors.
      • Business Associate agrees to require subcontractors to whom it provides PHI received from, or created on behalf of, Covered Entity, to comply with the restrictions and conditions that apply through this BAA to Business Associate with respect to such information, including the safeguards contained in this BAA.
    6. Access to Protected Health Information.
      • To the extent Business Associate maintains PHI in a Designated Record Set’, Business Associate agrees to provide access to PHI maintained in a Designated Record Set, within fifteen (15) days upon receipt of the request of Covered Entity to meet the requirements under 45 C.F.R. §164.524.
    7. Amendment of Protected Health Information.
      • To the extent Business Associate maintains PHI in a Designated Record Set, Business Associate agrees to make any amendment(s) to PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. §164.526, at the request of Covered Entity or an Individual, within the time requirements of 45 CFR §164.526.
    8. Governmental Access to Records.
      • Business Associate agrees to make its internal practices, books and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received for Covered Entity, available to the Secretary, for the purposes of the Secretary determining Covered Entity’s and Business Associate compliance with the Privacy Rule.
    9. Accounting of Disclosures.
      • Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity, to respond to an accounting of disclosures of PHI under 45 CFR 164.528.
    10. Services on Behalf of Covered Entity.
      • Business Associate agrees that to the extent it performs one or more of the Covered Entity obligations under the Privacy Rule, Business Associate shall comply with the HIPAA Privacy Rule in the same manner that such Rule would apply to the Covered Entity in the performance of such obligation.
    11. Security Standards.
      • Business Associate shall implement administrative, physical and technical safeguards for Electronic PHI that it creates, receives, maintains or transmits on behalf of Covered Entity, including without limitation, compliance with each of the Standards and Implementation Specifications of 45 C.F.R. §164.308 (Administrative Safeguards), 45 C.F.R. §164.310 (Physical Safeguards), 45 C.F.R. §164.312 (Technical Safeguards) and 45 C.F.R. §164.316 (Policies and Procedures and Documentation Requirements).
    12. Agent Protection of Electronic PHI.
      • Business Associate shall ensure that its subcontractors to whom it provides Electronic PHI, agrees to implement reasonable and appropriate administrative, physical and technical safeguards to protect that Electronic PHI, including compliance with each of the Standards and Implementation Specifications of 45 C.F.R. §164.308 (Administrative Safeguards), 45 C.F.R. §164.310 (Physical Safeguards), 45 C.F.R. §164.312 (Technical Safeguards) and 45 C.F.R. §164.316 (Policies and Procedures and Documentation Requirements).
    13. Minimum Necessary.
      • Business Associate acknowledges that it shall limit the use, disclosure or request of PHI to perform or fulfill a specific function required or permitted hereunder to the Minimum Necessary information, to accomplish the purpose of such use, disclosure or request as set forth in 45 C.F.R. §164.502(b).
    14. Additional Restrictions.
      • Notwithstanding any other provision in this BAA, Business Associate shall comply with the effective provisions of HIPAA and its implementing regulations that apply to Business Associate, including the following:
        • requests for restrictions on use or disclosure of PHI to Health Plans for payment or health care operations when the covered entity has been paid by the individual or person other than the Health Plan on behalf of the individual, consistent with 45 C.F.R. § 164.522(a)(1)(vi);
        • the prohibition on sale of Protected Health Information without authorization, unless an exception under 45 C.F.R. §164.508(a)(4) applies; and
        • the prohibition on receiving remuneration for certain communications that fall within the exceptions to the definition of marketing under 45 C.F.R. §164.501 unless permitted by this BAA and 45 C.F.R. §164.508.
  3.  Permitted Uses and Disclosures by Business Associate.
    1. Management and Administration.
      • Except as otherwise limited in this BAA or the Agreement, Business Associate may use or disclose PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of Business Associate.  In the event of disclosure of PHI to a third party for purposes described herein, Business Associate shall obtain satisfactory assurances from the receiving party that it shall maintain the privacy and security of the information and use or further disclose the information only as Required by Law or for the purposes for which the information was disclosed to the third party.
    2. Data Aggregation.
      • Business Associate may use PHI to provide data aggregation services relating to the health care operations of Covered Entity.
    3. De-Identification.
      • In accordance with the applicable provisions of HIPAA, the Privacy Rule and the Security Rule, Business Associate may de-identify PHI received, created, maintained or transmitted by or to Business Associate pursuant to this BAA, and use or disclose such de-identified information for any purpose permitted by applicable law.
  4.  Obligations of Covered Entity
    1. Revocation of Consent.
      • Covered Entity shall notify Business Associate in writing of any changes in, or revocation of, permission by Individual to use or disclose PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
    2. Restrictions on Use of Protected Health Information.
      • Covered Entity shall notify Business Associate in writing of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 F.R. 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
    3. Notice of Privacy Rights.
      • Covered Entity shall provide Business Associate with notice of any restrictions on the use or disclosure of PHI provided in the Covered Entity’s Notice of Privacy Practices, as such may be amended from time to time.
  5. Term and Termination
    1. Term.
      • The Term of this BAA shall be effective as of the Effective Date, and shall terminate when all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section.
    2. Termination For Cause.
      • In the event of a material breach of this BAA by either Party, the non-breaching Party shall:
        • Provide the breaching Party an opportunity to cure the material breach within thirty (30) days; or
        • Immediately terminate this BAA if a material term of this BAA has been breached and cure is not possible.
    3. Effect of Termination.
      • Except as provided below, upon termination or expiration of this BAA, for any reason, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity.  In the event that Business Associate determines that returning or destroying the PHI is infeasible, Business Associate shall extend the protections of this BAA to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.
  6.  Entire BAA.
    • This BAA supersedes any and all other agreements, whether oral or written, between the Parties with respect to PHI, and this BAA contains all of the covenants and agreements between the Parties with respect to PHI in any manner whatsoever.  Each Party to this BAA acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party, that are not embodied in this BAA relating to PHI, and that no other agreement, statement, or promise not contained in this BAA with respect to PHI shall be valid or binding.
  7. Modification.
    • No change or modification of this BAA shall be valid or binding unless the same is in writing and signed by each of the Parties hereto.
  8. Governing Law.
    • This BAA shall be governed by and construed in accordance with the laws of the State of Illinois.
  9. No Third Party Beneficiaries.
    • Nothing express or implied in this BAA or in the Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.
  10. Amendment.
    • This BAA shall automatically be deemed amended and any conflicting terms shall be superseded by new regulations in order to support compliance with the HIPAA Privacy and Security Rule as amended through the regulatory process. Both Parties agree to comply with the applicable laws and regulations. Any other amendments or modifications shall only be amended through a written amendment by both parties.
  11. Application of Limited Liability.
    • For the avoidance of doubt, to the extent that the Agreement contains any limitations of liability, damages caps or other similar provisions, including, without limitation, restrictions or limitations with respect to the amounts or types of damages that may be recovered, such provisions shall apply to this BAA.