IN HAND HEALTH PROVIDER TERMS OF SERVICE

IN HAND HEALTH
PROVIDER TERMS OF SERVICE

You, individually and on behalf of any health care provider, group of health care providers, or employer you represent (collectively, “you” or “Clinic”), agree that your use of In Hand Health, LLC’s (“IHH”) service platform (including any successor or related platforms) (the “Services”) is subject to these terms of service, as modified from time to time (these “Terms”). Each Clinic is provided a license to access the Services solely to provide a supplement to assist you in managing your patient’s care. IHH reserves all rights not expressly granted to you. If you do not accept these Terms, do not use or subscribe to the Services. These Terms also incorporate IHH’s Privacy Policy and any additional terms and other requirements that are set forth on the subscription page through which you subscribe to the IHH Services (collectively “Other Terms”) to the extent the Other Terms do not conflict with these Terms.

Use. You are licensed to use the Services solely for the purpose of supplementing the care provided by your trained physical therapists or similar providers (each a “Clinic Provider”), subject to your payment of the applicable Subscription Fees required for the Services (the “Use”). You acknowledge and agree that you cannot rely on the accuracy, delivery or receipt of any information transmitted or attempted to be transmitted by or through the Services including, without limitation, for the purpose of communicating medical conditions or making medical judgments or diagnoses. You agree to verify all information provided through the Services with your patients to verify its accuracy and completeness and use a method of communication other than the Services whenever there is an urgent need for delivery or receipt. You agree that IHH or its designees may remotely monitor your use of the Services and collect operational data and usage regarding the Services in accordance with the Privacy and Security Section below. IHH, and its licensors, reserve the right to change, suspend, remove, or disable access to any function in the Services at any time without notice. In no event will IHH be liable for the removal of or disabling of access to any such function(s). IHH may also impose limits on the use of or access to certain function(s), in any case and without notice or liability.
Applicability of Terms. You agree to these Terms by clicking “I accept” on the subscription page and registering a provider account through the Services. Upon such acceptance, IHH grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services. You consent to receive communications, disclosures and notices sent to you by e-mail from IHH from time to time.
Your Professional Services. The Services are primarily intended to allow you to utilize certain services to facilitate and supplement your patients’ treatment and care. You understand and agree that you are an independent professional who is solely responsible for the content, nature and selection of the content of the information you provide your patients through the Services. IHH does not practice medicine or any other licensed profession and does not interfere with the practice of medicine or any other licensed profession by you. You represent and warrant that each Clinical Provider is properly and appropriately licensed and responsible for his or her professional services and compliance with the requirements applicable to his or her profession and license. Neither IHH nor any third parties who promote the Services shall be liable for any professional advice you provide via the Services. You acknowledge that the Services are not intended in any way to replace each Clinical Provider’s relationship with his or her patients or standard patient visits but solely to facilitate care in between visits. You also acknowledge that the “CARE Index” component of the Services provides only a summary of a patient’s interactions with the Services through their mobile device and in no way provides any judgment, analysis, conclusion, or complete record or description with respect to a patient’s performance of any instructions, exercises, therapy, or other care components and it is each Clinical Provider’s responsibility to verify each patient’s performance of all such instructions, exercises, therapy, or other care components. Additionally, you acknowledge that you are solely responsible for appropriately identifying patients and prospective patients within the Services in accordance with applicable laws and regulations and your professional responsibilities with respect to providing any medical judgment, analysis, conclusions, or treatments as part of the formation of any provider/patient relationship with any prospective patients.
Responsibility for User Names and Passwords. You are responsible for securing the login credentials for yourself and each of your employees. When creating each user account, you must provide accurate and complete information and each employee with access to the Services must have a separate account. You will be responsible for each and every access or use of the Services through your user accounts, and IHH is authorized to accept use of your user accounts as conclusive evidence that you wish to use the Services, including, without limitation, any subscription fee(s) required for such Use. IHH shall have no liability or responsibility to monitor the use of your user name and password.
Your Subscription Fees. You acknowledge and agree to pay all subscription fees required for your Clinic and each Clinical Provider’s account. You may be offered a limited time free trial offer with access to the Services from time to time. Continued use of the Services following such trial period requires a current subscription. IHH will notify you of any increase in your subscription fees. You agree to provide a valid credit card or other valid payment source and to complete all payments, if any, related to your use of the Services. You agree to pay all taxes imposed by any jurisdiction as a result of your use of the Services.
Patient Subscription Fees and IHH Fees. You acknowledge and understand that you are responsible for determining the pricing (subject to IHH’s general policies regarding complimentary patient subscriptions and minimum pricing) for subscriptions to the Services by your patients for continuing care as well as informing patients of any changes in fees for renewals. IHH processes patient payments through the Services solely as a convenience to you and your patients. IHH shall retain thirty percent of all such patient subscription fees to compensate IHH for the cost of processing the transaction and providing the Services to the patient. All such IHH fees are non-refundable and fully earned by IHH at the time of payment. You acknowledge and agree that IHH is not responsible for any refunds of patient subscription fees and you are solely responsible for any patient dispute related to subscription fees, including any request for refunds or adjustments of any fees previously paid. In the event that any patient initiates a chargeback or other form of refund request to IHH (including its affiliates and partners) then you agree that IHH may determine, in its sole discretion, whether to comply with such requests and that you shall reimburse and indemnify IHH (including its affiliates and partners) with respect to such patient initiated requests. Further, you understand that if you cease to subscribe to the Services while a patient’s subscription continues then such patient will be unable to access or utilize any of the Services due to your lack of subscription to the Services as a Clinic and you agree to be responsible for any refunds related to such lack of access. You agree to pay all sales taxes, use taxes, value added taxes, duties, or any other tax imposed by any jurisdiction as a result of your patient’s use of the Services.
Payment Processing. IHH uses Braintree, a division of PayPal, Inc. (“Braintree”) in connection with payment processing services through the Services, including the payment of provider and patient subscription fees. By using the Services you agree to use the Braintree payment processing services and you agree to the Braintree Payment Services Agreement (available at https://www.braintreepayments.com/legal/payment-services-agreement), and the applicable bank agreement (available at https://www.braintreepayments.com/legal/bank-agreement-us), as such documents may be revised from time to time. By entering into this Agreement, you agree that you have reviewed and agree to the bank agreement(s) and the Payment Services Agreement. If you have questions regarding these agreements, please contact Braintree at 877.434.2894.
Restrictions on Use. These Terms govern any upgrades provided by IHH that replace and/or supplement the Services, unless such upgrade is subject to a separate agreement in which case the terms of that agreement will govern. You acknowledge and agree that if IHH disables access to your account, you may be prevented from accessing the Services, and any files, information, settings or other content that is contained in your account.
Privacy and Security. In the course of the providing the Services, you are a “covered entity” and IHH is a “business associate” under the Health Insurance Portability and Accountability Act, as amended, (“HIPAA”) and the provisions in this Section are intended to document compliance of the parties with HIPAA and the regulations issued thereunder. This Section sets forth the terms and conditions pursuant to which Protected Health Information (“PHI”) that is provided by, or created or received by IHH from you or on your behalf will be handled. Any capitalized terms that are not defined shall have the same definitions as such terms are defined under HIPAA.
1. Permitted Uses and Disclosures by IHH. Except as otherwise limited in this Section or by law, IHH may use or disclose PHI on behalf of, or to perform functions, activities, or services for, or on behalf of, Clinic; provided that such use or disclosure (i) would not violate HIPAA if done by Clinic, (ii) would not violate the minimum necessary HIPAA policies and procedures required to be maintained by a covered entity under applicable law and (iii) and the information disclosed is the minimum necessary to achieve the purpose of the use or disclosure. In addition, IHH may disclose PHI to report violations of law to appropriate Federal and state authorities. In addition, IHH may use PHI as necessary for the proper management and administration of IHH or to carry out the legal responsibilities of IHH. IHH may engage in data aggregation of PHI in accordance with HIPAA and to de-identify any or all PHI created or received by IHH under this Agreement. IHH may disclose PHI for the proper management and administration of IHH or to carry out the legal responsibilities of IHH, but only if (1) the disclosure is required by law; or (2) IHH obtains reasonable assurances from the recipient that the information will be held confidentially and used or further disclosed only as required by law or for the purposes for which it was disclosed, and any confidentiality breach of which the recipient becomes aware will be reported to IHH.
2. Responsibilities of IHH. With regard to its use and/or disclosure of PHI, IHH shall:
  - Not use or disclose PHI other than as expressly permitted or required by this Agreement or as otherwise permitted under HIPAA;
  - Report to the designated HIPAA compliance officer of Clinic in writing any use or disclosure of PHI not permitted or required by this Agreement, and any Security Incident, of which IHH becomes aware, within a reasonable time of IHH’s discovery of such unauthorized use or disclosure or Security Incident (provided, however, that Clinic is deemed to have received notice from IHH of routine occurrences of: (i) unsuccessful attempts to penetrate computer networks or services maintained by IHH; and (ii) immaterial incidents such as “pinging” or “denial of services” attacks so long as they do not result in a Breach or otherwise compromise PHI);
  - Within a reasonable time of IHH’s discovery of a Breach of Unsecured PHI, notify the designated HIPAA compliance officer of Clinic of such Breach, as required by 45 C.F.R. § 164.410;
  - Use appropriate safeguards to prevent use or disclosure of PHI except in accordance with this Agreement;
  - Comply with 45 C.F.R. Part 164, Subpart C with respect to Electronic PHI;
  - In accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of IHH agree to the same restrictions, conditions, and requirements that apply to IHH with respect to such information;
  - Make available to the Secretary all records, books, agreements, policies and procedures relating to the use and disclosure of PHI for purposes of determining Clinic’s compliance with the Privacy and Security Regulations, subject to any attorney-client privilege and any other applicable legal privileges;
  - Within a reasonable time of receiving a written request from Clinic, make available to Clinic, during normal business hours at IHH’s offices, all records, books, agreements, policies and procedures related to use and disclosure of PHI to allow Clinic to determine IHH’s compliance with this Agreement;
  - Within a reasonable time of receiving a written request from Clinic, provide access to Clinic or to an Individual, as directed by Clinic, any PHI in a Designated Record Set in accordance with 45 C.F.R. § 164.524, and as applicable, any other requirements related to access to PHI;
  - Within a reasonable time of receiving a written request from Clinic or an Individual, make any amendment(s) to PHI in a Designated Record Set that Clinic directs or agrees to pursuant to 45 C.F.R. § 164.526;
  - Document disclosures of PHI and information related to such disclosures as required for Clinic to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528, and as applicable, any other requirements relating to accounting of disclosures of PHI;
  - Within a reasonable time of receiving a written request from Clinic, provide to Clinic such information to permit Clinic to respond to a request by the Individual for an accounting of the disclosures of the Individual’s PHI in accordance with 45 C.F.R. § 164.528;
  - To the extent IHH is to carry out one or more of Clinic’s obligations under 45 C.F.R. Part 164, Subpart E, comply with the requirements of Subpart E that apply to Clinic in the performance of such obligation(s);
  - Mitigate, to the extent practicable, any harmful effect that is known to IHH of a use or disclosure of PHI by IHH in violation of the requirements of this Agreement; and
  - Destroy or return (if requested by Clinic within sixty (60) days of the termination of this Agreement), within a reasonable time not to exceed one hundred and eighty (180) days of the termination of this Agreement, all PHI in IHH’s possession and retain no copies, extracts, excerpts, summaries or recordings thereof; provided, however, that if the return or destruction of PHI is infeasible, IHH shall provide to Clinic notification of the conditions that make return or destruction infeasible, shall extend the protections of this Agreement to such PHI, and shall limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as IHH maintains such PHI. This Subsection shall also apply to PHI that is in the possession of Subcontractors or agents of IHH. The obligations of IHH under this Subsection shall survive the termination of this Agreement.
  Without limiting any other provision of this agreement, IHH shall not disclose PHI to a health plan for payment or health care operations purposes if the individual who is the subject of the PHI has requested this restriction and has paid out of pocket in full for the item or service to which the PHI relates; and it shall not receive remuneration in exchange for PHI except with the prior written consent of Clinic or as permitted by 45 C.F.R. § 164.508(a)(4).
3. Responsibilities of Clinic. With regard to the use and disclosure of PHI by IHH, Clinic shall (a) inform IHH of any changes in the notice of privacy practices that Clinic provides to individuals pursuant to 45 C.F.R. § 164.520 and provide IHH a copy of the notice currently in use; (b) inform IHH of any changes in, or withdrawal of, the authorization provided to Clinic by individuals whose PHI may be used or disclosed by IHH under this Agreement pursuant to 45 C.F.R. § 164.508; and (c) notify IHH, in writing and in a timely manner, of any restrictions on the use or disclosure of PHI agreed to by Clinic as provided for in 45 C.F.R. § 164.522, to the extent that such restriction may affect IHH’s use or disclosure of PHI.
4. Mutual Representation and Warranty. Each party represents and warrants to the other party that all of its employees, agents, representatives and members of its work force, whose services may be used to fulfill obligations under this Section, are or shall be appropriately informed of the terms of this Section and are under a legal obligation to fully comply with all provisions of this Section.
5. Termination. The obligations under this Section shall terminate when all PHI provided by Clinic to IHH, or created or received by IHH on behalf of Clinic, is destroyed or, if requested by Clinic within 60 days after termination of its Subscription, returned to Clinic, or, if it is infeasible to return or destroy all such PHI, protections are extended to such information, in accordance with the termination provisions in this Subsection.
6. Injunctive Relief. Notwithstanding any rights or remedies provided for in this Agreement, Clinic retains all rights to seek injunctive relief to prevent or stop the unauthorized use or disclosure of PHI or Personal Information by IHH or any agent, contractor or third party that received PHI or Personal Information from IHH.
Intellectual Property Rights. You agree that the Services, and every component thereof (including but not limited to the “CARE Index” component), contain proprietary content, information and material that is owned by IHH and/or its licensors and protected by applicable intellectual property and other laws, including but not limited to copyright. You agree not to use such proprietary content, information or materials in any way whatsoever except for permitted use of the License Application and Services as set forth herein. No portion of the Services may be reproduced or copied in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, reverse engineer, disassemble, attempt to derive source code, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be required by the licensing terms governing use of any open sourced components included in the Services). Any attempt to do so is a violation of the rights of IHH and its licensors. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that IHH is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services. To the extent that IHH agrees to create a branded version of the Services for Clinic, then Clinic shall grant IHH a non-assignable, non-sublicensable, royalty-free, limited license to incorporate certain logos and marks owned and used by the Clinic that are made available to IHH by the Clinic (the “Marks”) for the purpose of branding and identifying the Services associated with the Clinic.
User Generated and Patient Content. You acknowledge and agree that IHH may, but is not required to, provide a community where different Clinics, Clinical Providers or other licensed users can provide feedback and discussion regarding different therapy and care techniques, exercises, or other aspects of patient services or use of the Services. You represent and warrant that you have obtained all necessary authorizations and releases, including model and image releases for any patients or others shown in any multimedia material, as applicable, to permit you to post any data, information, or other content you provide to IHH (including any photos, videos, or descriptions) (the “Materials”). Unless you enter into a separate written agreement with IHH, IHH does not claim ownership in any Materials you submit, however, by submitting Materials in any form you automatically grant IHH a royalty-free, world-wide, non-exclusive, fully sub-licensable, and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials in any media, including, but not limited to, a website operated by, and in any related marketing materials produced by, IHH and its affiliates.
Third Party Content. 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 web sites. By using the Services, you acknowledge and agree that IHH is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. IHH does not warrant or endorse and does 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 web sites, or for any other materials, products, or services. Third Party Materials and links to other web sites are provided solely as a convenience to you.
Termination. The license granted under these Terms is effective until terminated by you or IHH for any reason or no reason. Your rights under these Terms will terminate automatically upon the earlier of (a) failure to renew, expiration or termination of access to the Services, which may occur without notice; or (b) without notice from IHH if you fail to comply with any of these Terms. Upon termination of the license, you shall cease all use of the Services, and destroy all copies, full or partial, of the Services. You shall remain liable for payment of all subscription fees owed under the terms of your subscription and all such fees shall be retained in the event of any early termination of these Terms.
NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND IHH HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IHH DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IHH OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IHH SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY (INCLUDING DEATH) OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF IHH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall IHH’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the price paid for the Services with the twelve (12) months prior to the occurrence of the injury or damage, as applicable, or if no prices is paid, an amount of twenty-five dollars ($25.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Indemnification. To the fullest extent permitted by law, you hereby agree to indemnify, defend and hold harmless IHH and its affiliates and their respective owners, directors, officers, managers, agents, employees, representatives, parent entities, subsidiaries, affiliates, related persons and entities and their successors and assigns (collectively the “Indemnitees”) against any and all liability, loss, claims, demands, suits, costs, fees, expenses (including but not limited to the reasonable fees and expenses of attorneys and expert witnesses), punitive damages, penalties and civil fines, allegedly or actually arising out of, resulting from or relating to: (a) a breach by you or by any of your Clinical Providers of any representation or warranty in these Terms, (b) any use of the Services by you or any of your Clinical Providers, whether or not such use is authorized by these Terms, including, without limitation, any claims made by other users of the Services due to your use of the Services, and (c) any violation of any third party's rights including such party's copyrights and trademarks, including from any use of the Marks by IHH.
Miscellaneous.
1. Authority. If you are agreeing to these Terms behalf of a Clinic that is a corporation, company or other legal entity, you represent that you have the legal authority to bind such entity to these Terms, in which case "you" means the entity you represent. If you don’t have such authority, or if you don’t agree with these Terms, you must not use the Licensed Application. If you are a corporation, company or other legal entity, you represent that the person clicking “Agree,” “Accept,” or checking a box, as applicable, has the authority to bind you to these Terms as a legally binding agreement.
2. Submissions and Ideas. You grant IHH and its affiliates a perpetual, worldwide, royalty-free, irrevocable, non-exclusive and fully sub-licensable license to use any material, information, ideas, concepts, know-how or techniques that is contained in any communication you provide to us for any purpose whatsoever, including but not limited to, commercial purposes, other than in the course of your Use, provided that such information does not personally identify you. You grant all such rights in this paragraph for no compensation or other consideration of any sort to you.
3. Domestic Use; Language. IHH makes no representations that any part of the Services are appropriate or available for use in locations other than the United States or in languages other than English. You may not use or otherwise export or re-export the Services except as authorized by United States law
4. Governing Law; Jurisdiction. The laws of the State of Kansas, excluding its conflicts of law rules, govern these Terms and your use of the Services. You irrevocably submit, consent, and agree to the exclusive venue, jurisdiction, and personal jurisdiction of any Federal or State court located in Johnson County, Kansas for the purpose of any claim brought against IHH under these Terms or your use of the Services.
5. Amendments. These Terms may be amended by IHH at any time and such changes shall be immediately effective upon posting. If you do not agree to any amendment, your sole remedy is to terminate these Terms by providing notice to IHH and ceasing use of the Services. If you do not terminate these Terms and continue to use the Services, then your silence will be deemed acceptance.
6. Survival of Terms. All provisions which by their nature would be deemed to survive, shall survive termination of these Terms for any reason.
7. Assignment; Sublicensing. You may not assign, sublicense, lease or otherwise transfer any part of this Agreement, or permit use of the Services by, any other person without IHH’s prior written consent. IHH may assign these Terms without your consent to any other party. Any change of control or sale of transfer of a majority of the ownership of Clinic shall constitute an assignment under this Agreement.
8. Waiver. IHH’s waiver of any condition or covenant of these Terms, or its failure to exercise a right or remedy available to it, shall not constitute a further waiver of the same or any other condition, covenant, right or remedy.
9. Severability. If any provision of these Terms is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provision hereof and such other provisions shall be interpreted and construed as if the invalid, illegal or unenforceable provisions had never been contained herein.
10. Attorney’s Fees. In addition to any other right or remedy provided to IHH in these Terms, if IHH prevails against you, in whole or in part, in any action to enforce the provisions of these Terms, whether for injunctive relief or damages or both, then in addition to all other damages or relief, IHH shall also be entitled to recover from you the costs and expenses incurred in the successful pursuit of such action or portion thereof, including reasonable attorneys’ fees.
11. Electronic Signatures. You consent to the use of electronic signatures and electronic records for all transactions between yourself or the entity you represent and IHH and agree that any such electronic signature shall be sufficient for deeming any agreement, including this agreement, to be an agreement in writing.
12. Contact. If you have any questions or concerns about these Terms or the Services then please contact support@inhandhealth.com or call (913) 701-7444.