TERMS OF SERVICE (FOR DOCTOR USERS)

Last Revised: September 27, 2021

Welcome to the Terms of Service (these “Terms”) for the website available at caresend.co (together with any successor website, the “Website”) operated by or on behalf of CareSend, Inc. (“Company”, “we” or “us”), and together with any product, service, content, tools, features and functionality offered on or through our Website (collectively the “Services”).

These Terms govern your access to and use of the Services.  Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.

For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity's behalf.

Please note that Section 11 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. If you are an individual, you have the right to opt-out of arbitration as explained in Section 11.

1. ABOUT US AND THE SERVICES OFFERED

The Services provide an online platform that enables patients to schedule appointments to receive a clinical service supported by the platform (“Clinical Service”).  We offer such online platform for you and other health care providers to make your/their services available to the general public.  You agree and acknowledge that: (a) we do not recommend or endorse any specific health care provider or service, and all healthcare services are provided by independent medical practices; (b) we do not act as a “nurse registry,” as such term is defined under applicable laws or any other similar service under any other state naming convention, nor do we act as an employment agency; (c) we do not act as a “home health agency,” as such term is defined under applicable laws or any other similar service under any other state naming convention (d) we do not own any medical practices offering services through the Website, employ or in any way supervise or control such healthcare providers rendering care, including you, your practice and any Contracted Providers (defined below); (e) you shall have control over the provision of all professional medical and other clinical services and patient care provided by you, your practice (“Practice”) and the Contracted Providers for purposes of providing any Clinical Services; and (f)  when taking action in connection with a Booking (as described below), we are acting as your authorized agent and on behalf of your Practice providing administrative services in connection with Clinical Services (which may also include related Non-Covered Services—as described below).

2. WHO MAY CREATE AN ACCOUNT

In order to create an account on the Services (“Account”) you must reside in the United States and be a licensed physician, authorized under applicable law to provide or order the Clinical Services booked by patients.  You further represent and warrant that: (a) you have and maintain an unrestricted license to practice medicine in the state where you provide services; (b) your license to practice medicine in any state has never been suspended, revoked or restricted; (c) you have never been reprimanded, sanctioned or disciplined by any licensing board or medical specialty board; (d) you have never been debarred, excluded or suspended from participation in, or sanctioned by, any federal health care program; (e) you have never been denied membership and/or reappointment to the medical staff of any hospital or health care facility; (f) your medical staff membership or clinical privileges at any hospital has never been suspended, limited or revoked for a medical disciplinary cause or reason; and (g) you have never been charged with or convicted of a felony, a misdemeanor involving fraud, dishonesty, controlled substances, or moral turpitude, or any crime relevant to the provision of medical services or the practice of medicine (“Listing Representations”). Your ongoing compliance with the foregoing Listing Representations is a condition precedent to your use of the Services.  You shall immediately notify us at team@caresend.co if you cease to satisfy the foregoing Listing Representations and shall suspend all use of the Services until you re-qualify according to this Section 2.  You shall immediately notify us if an investigation or action is initiated by any governmental agency concerning the Listing Representations or which may adversely affect the Listing Representations.

3. USER ACCOUNTS

3.1 Creating and Safeguarding your Account. To use the Services, you will need to create an Account to be accessed by: (a) you, the licensed physician(s) who will render Clinical Services; and (b) an administrative representative (e.g., office manager) (“Practice Administrator”). Your Account may be activated after we validate your license and identification and after you and all users of the account, including your Practice Administrator have participated in the video demo and videoconference with us. You and your Practice Administrator agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at team@caresend.co if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. YOU UNDERSTAND AND AGREE THAT WE HAVE THE RIGHT TO DECLINE OR TERMINATE YOUR ACCOUNT WITHOUT CAUSE OR FOR ANY REASON, INCLUDING FAILURE TO COMPLY WITH THESE TERMS OF SERVICE.

4. YOUR RESPONSIBILITIES

4.1 Contracted Providers . 

(a) Contracted Providers. You understand that we will perform certain screening activities prior to the engagement of Contracted Providers, and will make information we obtain from Contracted Providers available to you in order for you to independently perform credentialing activities for such Contracted Providers. You understand that you shall directly engage certain healthcare providers such as registered nurses, licensed vocational nurses, licensed practical nurses, certified phlebotomy technicians, etc, as may be available during your desired times and in your desired geography, to administer Clinical Services to patient users of the Services (the “Contracted Providers”). Further, you understand and agree that you: (i) shall solely and exclusively control the clinical aspects of providing Clinical Services; (ii) shall solely be responsible for obtaining proper consent from patients, including patient acknowledgement of payment for Non-Covered Services / Advance Beneficiary Notice, in accordance with applicable laws and regulations, federal and state health care program rules and guidelines and third party payor policies; (iii) shall be solely responsible for supervising all patient care services and assuring the quality of health care and related services rendered by the Contracted Providers; and (iv) shall select your Contracted Providers to provide Clinical Services on your behalf, which may be done through the Services, but will require that you affirmatively select Contracted Providers available within the service area and during times as specified in the Services.

(b) Process for Providing Clinical Services. With respect to providing Clinical Services (and associated Non-Covered Services), you agree and acknowledge that the following are solely your responsibility:

(i) You agree to utilize the template independent contractor agreement provided through the Services to engage the Contracted Providers, which may be augmented by such agreements, terms and conditions as the Practice desires, and which shall be solely the responsibility of the Practice and the Contracted Providers (“Contracted Provider Terms of Engagement”).

(ii) For each appointment (“Booking”), you need to: (a) identify a Clinical Service, available, based on time and geography, on the Website, such as a blood draw for a laboratory test, to be provided through the Services; (b) provide the physician order, as applicable; (c) indicate through the Service if you wish the patient not to automatically receive lab or other diagnostic results associated with a Clinical Service when made available to us on your behalf from the lab or other diagnostic service provider as shall have been consented to by a patient through the Services by way of the patient’s agreement to the terms of service; (d) maintain all necessary and appropriate CLIA, federal and state registrations, certifications and licenses in the event that you order a laboratory test and have the Contracted Provider perform the laboratory test as part of the Clinical Services (e.g. you must have a CLIA Certificate of Waiver and/or state law equivalent, as legally required, if you instruct a Contracted Provider to perform a CLIA waived point of care laboratory test) and (e) provide appropriate direction and supervision, as required under applicable laws and regulations, and in accordance with the policies and procedures of your Practice;

(iii) You agree and acknowledge that the Clinical Services identified in each Booking are consistent with applicable laws and regulations and standards of care and within the scope of licensure of Contracted Providers;

(iv) Before the Contracted Provider provides the Clinical Service, you will have entered into the Provider Terms of Engagement with the Contracted Provider to engage the Contracted Provider to provide Clinical Services on behalf of your Practice, which may be done through the Services;

(v) You will have obtained completed patient consent forms from the patient through the Services or provide patient consent form(s), and will assure that such patient consent form(s) comply with applicable laws. Such forms shall include, to the extent applicable:

(A) Consent for Clinical Service(s);

(B) Advance Beneficiary Notice for Medicare patients;

(C) Patient Acknowledgement of Covered and Non-Covered Services;

(vi) You will assure that Contacted Providers obtain your patient consent form(s) from patient;

(vii) You will assure that Contracted Provider records any Clinical Services in the patient record;

(viii) You will assure that Contracted Provider checks out on the platform;

(ix) You will assure that Contracted Provider receives payment for performing the Clinical Services. 

(c) Eligibility File. Upon mutual agreement with Company, you may provide Company an eligibility file indicating eligible patients who may utilize the Service (“Eligibility File”).  In such a case, the Eligibility File shall include the specific data requested by Company in order to provide the Services to patients and be provided at a frequency determined by Company.

You expressly authorize us to communicate and engage through the Services on your behalf with Contracted Providers, patients and third party providers (e.g., labs, pharmacies, etc.) rendering services that you order in connection with a Booking and as reasonably necessary to provide Non-Covered Services and administrative functions specified under these Terms of Service in connection with the Clinical Service.

Patient Services

You shall be responsible for any Clinical Services requested by or rendered to any patient users of the Services.  You shall have control over the provision of all professional medical and other clinical services and patient care and other professional medical or other clinical services offered to patient users of the Services shall be undertaken or directly supervised solely by you through the Contracted Providers, as deemed appropriate in your and such Contracted Provider’s reasonable professional judgment.  Company shall neither have nor exercise any control or direction over the methods by which you or any Contracted Provider practices professional services.

4.3 Insurance Coverage.  You shall keep and maintain appropriate insurance coverage sufficient to protect against a liability incident in the rendering of services provided by Contracted Providers, including automobile, personal injury, property damage, general liability insurance coverage as well as coverage for any professional medical and other clinical services, including health care professional liability insurance coverage.  At our request, you shall provide us with a certificate or certificates of insurance certifying the existence of all coverages required hereunder.  You shall request your insurance carriers to provide us with not less than thirty (30) days’ prior written notice in the event of a change in the health care professional liability policies thereof. 

Compliance With Applicable Law

You shall conduct your internal affairs and the clinical affairs of your professional practice in compliance with all applicable statutes, regulations, laws, governmental or court orders and decrees, professional standards, and juridical pronouncements or promulgations, the regulations promulgated thereunder, and the provisions of any successor legislation.

Independent Contractors

.  You and the Company shall be and shall act as independent contractors, and you agree that you are not and will not act as a partner, joint venturer, agent, or employee of the Company.  In addition, neither you (or your employees) nor any of the Contracted Providers will have any claim hereunder or otherwise against us for vacation pay, sick leave, unemployment insurance, workers’ compensation, disability benefits or employee benefits of any kind.

4.6 Company Does Not Provide Marketing Services / Steerage. You understand that the Company does not provide any marketing services for you or any health care providers that use the Services, and your use of the Services does not guarantee that Patients will access your services.

5. RATES, BILLING AND PAYMENT

5.1 Rates.  The following shall be proposed, negotiated and set forth in a fee schedule in the Services upon initiation of and in respect of each Clinical Service that may be administered through the Services:

(a) “Non-Covered Service Fee” the fee to be paid by the patient for facilitation of scheduling of the Clinical Service, the convenience of receiving such Clinical Service at the patient’s selected location and any other non-clinical services offered for the convenience of patient, including but not limited to the collection of specimen at patient’s selected location (“Non-Covered Services”);

(b) “Contracted Provider Fee” the fee to be paid to Contracted Providers to provide the Clinical Service on behalf of the Practice;

(c) “Management Fee” reimbursement to the Company for providing the Non-Covered Services and administrative support (including our hosting of the platform) on behalf of the Practice; and

(d) “Cash Pay Clinical Service Fee” the fee to be charged for Clinical Services to Cash Pay Patients on behalf of the Practice.

5.2 Billing.

(a) Third Party Billing for Covered Services. You shall be responsible for billing and collecting from third party payor(s) for Clinical Services (“Covered Services”) and for compliance with all applicable laws governing such billing.

(b) Billing for Non-Covered Services. You authorize us to bill and collect payment from the patient on your behalf for the Non-Covered Services Fee.

(c) Cash Pay Patients. You understand and agree that government health care program beneficiaries will not be eligible through the Services to receive or pay on a cash basis for Covered Services or Non-Covered Services. Patients who do not have insurance or have commercial insurance or are otherwise covered by a health plan (i.e., non-government program beneficiaries), however, may pay on a cash pay basis, provided that an appropriate patient consent and disclosure of Non-Covered Services is obtained (“Cash Pay Patients”). Company may bill Cash Pay Patients the Cash Pay Clinical Service Fee and remit collections of same to the Practice, upon direction of the Practice through the Services.

5.3 Payment.

(a) Payment to Practice. Following payment of the Contracted Provider Fee on behalf of the Practice, and our retention/deduction of amounts equal to the Management Fee, we will remit to the Practice the remainder of the Non-Covered Services Fees consistent with the negotiated fee arrangement through the Services, which payment you will receive through your Stripe account.

(b) Management Fee. You further understand and acknowledge that our retention of the Management Fee from Non-Covered Services Fee will constitute Company’s payment in full for the Services.

(c) Payment in Full for Clinical Services Covered By Third Party Payors. You understand and acknowledge that payments for Clinical Services covered by third party payors (e.g., insurance, health plan, government health care program) shall constitute the entire payment for performing such Clinical Services and the Services and patients shall not otherwise be billed by either party.  

5.4 Alternative Payment and Billing Terms. Notwithstanding the foregoing, you and Company may agree to alternative payment and billings terms (“Alternative Billing and Payment Terms”). Such Alternative Billing and Payment Terms shall only be implemented after mutual written agreement between you and Company.  At all other times Section 5.1-5.3 shall govern.

6. HIPAA / PRIVACY POLICY

6.1 Privacy Policy. This Section 6 and our Privacy Policy describes how we handle the information you provide to us when you use the Services, including all information you provide when registering an Account. For an explanation of our privacy practices, please visit our Privacy Policy located at caresend.com/privacy-policy. To the extent that any such information is “protected health information” or “PHI” as such term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and all regulations promulgated thereunder (collectively, “HIPAA”), the parties agree that such PHI shall be used and disclosed in accordance with the Business Associate Agreement attached hereto as Exhibit 1.

6.2 Use and Storage of Data and Protected Health Information and De-Identification of Protected Health Information and Use of De-identified Data. Subject to Company’s privacy policy, proper consents and authorizations obtained by patients and applicable privacy laws and regulations, Company will have the right (but not an obligation) to review, analyze, store, maintain and use all data ingested via the Service, including Protected Health Information: (i) both on an individual basis and in the aggregate, to provide the Services; (ii) to collect and create data about patients’ use of the Services; (iii) or to modify, enhance, or improve the Services.  Company may use, reproduce, or publicize information ingested via the Services that is aggregated and anonymized or otherwise appropriately de-identified in accordance with HIPAA and applicable state privacy laws, and that does not otherwise identify a patient, you or the Practice, in its sole discretion.  Any collection and use, access or storage of information, including Protected Health Information provided in this Section 6 shall be disclosed to patients prior to collection and storage and shall be expressly agreed upon to by patients in Company’s terms of service, which shall be visible and accessible to patients, and subject to proper consent and authorizations, under HIPAA and other applicable privacy laws.

7. RIGHTS WE GRANT YOU

7.1 License Grant. Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Services. This license has the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms and subject to the use restrictions described below. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.

7.2 Restrictions On Your Use of the Services. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:

(a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;

(b) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;

(c) remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;

(d) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;

(e) exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation; 

(f) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use any device, software or routine that causes the same;

(g) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;

(h) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;

(i) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same; 

(j) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;

(k) use the Services for illegal, harassing, unethical, or disruptive purposes;

(l) violate any applicable law or regulation in connection with your access to or use of the Services; or

(m) access or use the Services in any way not expressly permitted by these Terms. 

8. OWNERSHIP AND CONTENT

8.1 Ownership of the Services. The Services, including their "look and feel" (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests.  We and our licensors reserve all rights in connection with the Services and its content (other than Your Content) including, without limitation, the exclusive right to create derivative works.

8.2 Ownership of Trademarks. The Company’s name, logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors.  Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. 

8.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.

8.4 Your Content License Grant.  In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services, including information about your practice and the Clinical Services to be administered by your Contracted Providers (“Your Content”). As a condition of your use of the Services, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify Your Content.  By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will be accurate and include all information necessary for patient users of the Services to schedule an appointment.  Furthermore, you agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.

9. THIRD PARTY SERVICES AND MATERIALS

9.1 Use of Third Party Materials in the Services. The Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.  If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.

10. DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION

10.1 Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.

10.2 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES.  SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR PRODUCTS AND SERVICES PURCHASED ON THE SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.3 Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) you or your Contracted Provider’s performance of services hereunder and fulfilment of appointments booked through the Services by you or your Contracted Providers, (b) your violation or breach of any term of these Terms or any applicable law or regulation; (c) your violation of any rights of any third party; (d) your access to or use of the Services; (e) Your Content or (f) the professional negligence of you or any of your Contracted Providers or any professional acts or omissions of you or your Contracted Providers.

11. ARBITRATION AND CLASS ACTION WAIVER

11.1 Informal Process First.  You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.

11.2 Arbitration Agreement and Class Action Waiver.  After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration in Los Angeles, California, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.

11.3 Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.

11.4 Opt-Out. If you are an individual, you have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to team@caresend.co. The notice must be sent to the Company within thirty (30) days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, the Company also will not be bound by them.

12. ADDITIONAL PROVISIONS

12.1 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms.  If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes.  The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. 

12.2 Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.

12.3 Non-Disparagement.  At all times, you agree not to make any statement or perform any act which in any way would harm, disparage or injure us or the Services or be detrimental to our relationships and dealings with other users of the Services. In no event shall any statement or communication by you exercising your medical judgment be considered a breach of this requirement.

12.4 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

12.5 California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

12.6 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. These Terms are governed by the laws of the State of California, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Los Angeles, California.

12.7 How to Contact Us.  You may contact us regarding the Services or these Terms by e-mail at team@caresend.co.  

EXHIBIT 1

BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (“BAA”) to the “Agreement” by and between you (for purposes of this BAA, “Covered Entity”) and Caresend Inc. (“Company”) is effective as of the Effective Date. Upon execution of the Agreement, this BAA is incorporated by reference into the Agreement.

The Parties hereby agree as follows:

1. DEFINITIONS

1.1 Capitalized Terms.  Capitalized terms used in this BAA and not otherwise defined herein shall have the meanings set forth in: (i) the Health Insurance Portability and Accountability Act of 1996, as amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HIPAA”), and the Privacy Rule, Security Rule, Enforcement Rule and Breach Notification Rule set forth at 45 C.F.R. Parts 160 and 164 (jointly, the “HIPAA Rules”) promulgated thereunder; or (ii) the Agreement, which definitions are incorporated in this BAA by reference.

1.2 “Protected Health Information” or “PHI” shall have the same meaning given to such term in 45 C.F.R. § 160.103, as applied to the information created, received, maintained or transmitted by Company from or on behalf of Covered Entity.

1.3 “Unsuccessful Security Incident” shall mean pings and other broadcast attacks on a firewall, port scans, unsuccessful log-on attempts, denials of service, or other similar attempted but unsuccessful Security Incident, or a combination thereof, so long as no such incident results in unauthorized access, use or disclosure of PHI.

2. PERMITTED USES AND DISCLOSURES OF PHI

Uses and Disclosures of PHI Pursuant to the Agreement

.  Company shall not use or disclose PHI other than as permitted or required to perform functions, activities or services for, or on behalf of, Covered Entity as specified in the Agreement or as Required by Law, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity, except as set forth in Sections 2.2, 2.3 and 2.4.  To the extent Company is carrying out any of Covered Entity’s obligations under the Privacy Rule pursuant to the terms of the Agreement or this BAA, Company shall comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligation(s).

Permitted Uses of PHI by Company

.  Company may use PHI for the proper management and administration of Company or to carry out the legal responsibilities of Company.

Permitted Disclosures of PHI by Company

.  Company may disclose PHI for the proper management and administration of Company, provided that the disclosures are Required by Law, or Company obtains reasonable assurances from the person to whom the information is disclosed that it shall remain confidential and will be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person (which purpose must be consistent with the limitations imposed upon Company pursuant to this BAA), and that the person agrees to notify Company of any instances of which it is aware in which the confidentiality of the information has been breached.  Company may disclose PHI to report violations of law to appropriate federal and state authorities, consistent with 45 C.F.R. § 164.502(j)(1).

Data Aggregation

.  Except as otherwise limited in this BAA, Company may use PHI to provide Data Aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).

De-identified Data

.  Company may de-identify PHI in accordance with the standards set forth in 45 C.F.R. § 164.514(b) and may use or disclose such de-identified data for any purpose.

3. OBLIGATIONS OF COMPANY

Appropriate Safeguards

.  Company shall use appropriate safeguards and shall comply with the Security Rule with respect to Electronic PHI, to prevent use or disclosure of such information other than as provided for by the Agreement and this BAA.

Reporting of Improper Use or Disclosure, Security Incident or Breach

.  Company shall report to Covered Entity any use or disclosure of PHI not permitted under this BAA, Breach of Unsecured PHI or Security Incident, without unreasonable delay, and in any event no more than ten (10) business days following discovery; provided, however, that the Parties acknowledge and agree that this Section constitutes notice by Company to Covered Entity of the ongoing existence and occurrence of Unsuccessful Security Incidents. 

Company’s Agents

.  In accordance with 45 C.F.R. § 164.502(e)(1)(ii) and 45 C.F.R. § 164.308(b)(2), as applicable, Company shall enter into a written agreement with any agent or subcontractor that creates, receives, maintains, or transmits PHI on behalf of Company for services provided to Covered Entity, providing that the subcontractor or agent agrees to substantially the same restrictions and conditions that apply to Company through this BAA with respect to such PHI.

Access to PHI

.  To the extent Company has PHI contained in a Designated Record Set, Company agrees to make information available to Covered Entity pursuant to 45 C.F.R. § 164.524, to respond to an Individual’s request to Covered Entity to review or copy the Individual’s PHI; provided, however, that Company is not required to provide such access where the PHI contained in a Designated Record Set is duplicative of the PHI contained in a Designated Record Set possessed by Covered Entity.  If an Individual makes a request for access pursuant to 45 C.F.R. § 164.524 directly to Company, or inquires about his or her right to access, Company shall either forward such request to Covered Entity or direct the Individual to Covered Entity.

Amendment of PHI

.  To the extent Company has PHI contained in a Designated Record Set, Company agrees to make such information available to Covered Entity for amendment pursuant to 45 C.F.R. § 164.526.  If an Individual submits a written request for amendment pursuant to 45 C.F.R. § 164.526 directly to Company, or inquires about his or her right to amendment, Company shall either forward such request to Covered Entity or direct the Individual to Covered Entity.

Documentation of Disclosures

.  Company agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. 

Accounting of Disclosures

.  Company agrees to provide to Covered Entity, upon receipt of a written request from Covered Entity, information collected in accordance with Section 3.6 of this BAA to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.  If an Individual submits a written request for an accounting of disclosures of PHI pursuant to 45 C.F.R. § 164.528 directly to Company, or inquires about his or her right to an accounting of disclosures of PHI, Company shall direct the Individual to Covered Entity.

Governmental Access to Records

.  Company shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Company on behalf of, Covered Entity available to the Secretary for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule. To the extent permitted by law, Company shall provide Covered Entity with a copy of such internal practices, books and records that Company provides to the Secretary pursuant to this Section.

Mitigation

.  To the extent practicable, Company will reasonably cooperate with Covered Entity’s efforts to mitigate a harmful effect that is known to Company of a use or disclosure of PHI by Company that is not permitted by this BAA.

Minimum Necessary

.  Company shall request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure, in accordance with 45 C.F.R. § 164.514(d), and any amendments thereto.

4. OBLIGATIONS OF COVERED ENTITY

Notice of Privacy Practices

.  Covered Entity shall notify Company of any limitation(s) in its notice of privacy practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation may affect Company’s use or disclosure of PHI.

Notification of Changes Regarding Individual Permission

.  Covered Entity shall obtain any consent or authorization that may be required by the Privacy Rule, or applicable state law, prior to furnishing Company with PHI.  Covered Entity shall notify Company of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Company’s use or disclosure of PHI.

Notification of Restrictions to Use or Disclosure of PHI

.  Covered Entity shall notify Company of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect Company’s use or disclosure of PHI.

Permissible Requests by Covered Entity

.  Covered Entity shall not request Company to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity, except as permitted pursuant to the provisions of Sections 2.2, 2.3 and 2.4 of this BAA.

5. TERM AND TERMINATION

Term

.  The term of this BAA shall commence as of the Effective Date, and shall terminate when all of the PHI provided by Covered Entity to Company, or created or received by Company on behalf of Covered Entity, is destroyed or returned to Covered Entity.  If it is infeasible to return or destroy PHI, Company shall extend protections to such information in accordance with Section 5.3.

Termination for Cause

.  Upon either Party’s knowledge of a material breach by the other Party of this BAA, such Party may terminate this BAA immediately if cure is not possible.  Otherwise, the non-breaching Party shall provide written notice to the breaching Party detailing the nature of the breach and providing an opportunity to cure the breach within thirty (30) business days.  Upon the expiration of such thirty (30) day cure period, the non-breaching Party may terminate this BAA if the breaching Party does not cure the breach or if cure is not possible.

Effect of Termination

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(a) Except as provided in Section 5.3.2, upon termination of the Agreement or this BAA for any reason, Company shall return or destroy all PHI received from Covered Entity, or created or received by Company on behalf of Covered Entity, and shall retain no copies of the PHI.

(b) If it is infeasible for Company to return or destroy the PHI upon termination of the Agreement or this BAA, Company shall: (a) extend the protections of this BAA to such PHI and (b) limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Company maintains such PHI.

6. SURVIVALdsadsadsadsa

The respective rights and obligations of Company under Section 5.3 of this BAA shall survive the termination of this BAA and the Agreement.

7. AMENDMENT

This BAA may be modified, or any rights under it waived, only by a written document executed by the authorized representatives of both Parties.  In addition, if any relevant provision of the HIPAA Rules is amended in a manner that changes the obligations of Company or Covered Entity that are embodied in terms of this BAA, then the Parties agree to negotiate in good faith appropriate non-financial terms or amendments to this BAA to give effect to such revised obligations.

8. EFFECT OF BAA

In the event of any inconsistency between the provisions of this BAA and the Agreement, the provisions of this BAA shall control.  In the event that a court or regulatory agency with authority over Company or Covered Entity interprets the mandatory provisions of the HIPAA Rules, in a way that is inconsistent with the provisions of this BAA, such interpretation shall control.  Where provisions of this BAA are different from those mandated in the HIPAA Rules, but are nonetheless permitted by such rules as interpreted by courts or agencies, the provisions of this BAA shall control.

9. GENERAL

This BAA is governed by, and shall be construed in accordance with, the laws of the State that govern the Agreement.  Covered Entity shall not assign this BAA without the prior written consent of Company, which shall not be unreasonably withheld.  If any part of a provision of this BAA is found illegal or unenforceable, it shall be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this BAA shall not be affected.  All notices relating to the Parties’ legal rights and remedies under this BAA shall be provided in writing to a Party, shall be sent to its address set forth in the Agreement, or to such other address as may be designated by that Party by notice to the sending Party, and shall reference this BAA.  Nothing in this BAA shall confer any right, remedy, or obligation upon anyone other than Covered Entity and Company.  This BAA is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (written and oral) regarding its subject matter.

10. INDEPENDENT CONTRACTOR

Company will be considered, for all purposes, an independent contractor, and Company will not, directly or indirectly, act as agent, servant or employee of Covered Entity or make any commitments or incur any liabilities on behalf of Covered Entity without its express written consent.  Nothing in this BAA shall be deemed to create an employment, principal-agent or partner relationship between the Parties.