IngagePatient, INC., USER AGREEMENT
THIS IS A LEGALLY BINDING AGREEMENT between IngagePatient, Inc., a Delaware Corporation ("we" or "us") and you, as a user of our on-line health record system (the "System"). BY CLICKING "SIGN UP" OR THROUGH THE CONTINUED USE OF THE SYSTEM, YOU ARE UNDERTAKING LEGAL OBLIGATIONS AND CONFERRING LEGAL RIGHTS. Please read this agreement carefully, and do not click "Sign up" or continue use of the System unless you agree fully with its terms. You and we are collectively referred to as the "Parties."
For the purposes of this Agreement, the terms set forth in this section have the meanings assigned to them below. Terms not defined below (whether or not capitalized) have the definitions given them in HIPAA, unless the context requires otherwise:
"Authorized Workforce" means those members of your Workforce who are individually authorized by you and us to have access to the System to assist you in providing treatment and obtaining payment for treatment, and to whom we have assigned a unique identifier for access to the System.
"Confidential Information" means any information concerning our business, financial affairs, current or future products or technology, trade secrets, workforce, customers, or any other information that is treated or designated by us as confidential or proprietary, or would reasonably be viewed as confidential or as having value to our competitors. Confidential Information shall not include information that we make publicly available or that becomes known to the general public other than as a result of a breach of an obligation by you. Confidential Information does not include individuals' health information.
"De-identified Health Information" means health information that has been de-identified in accordance with the provisions of the Privacy Rule, and "De-Identify," with respect to health information, means make it into De Identified Health Information.
"De-Identified Information" means De-Identified Health Information and De-Identified Personal Information.
"De-Identified Personal Information" means personal information from which a user's name and other unique identifiers have been removed, and from which the user cannot reasonably be identified; and "De-Identify," with respect to Personal Information, means to make it into De-Identified Personal Information.
"HIPAA" means the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and the Security Rule.
"HITECH Act" means the Technology for Economic and Clinical Health Act of 2009, and regulations promulgated thereunder. "Personal Information" means information that identifies you personally as a user of the System, and all information concerning you and your use of the System that is not Protected Health Information.
"Policies and Procedures" means our rules, regulations, policies and procedures for access to and use of the System, as changed from time to time and as posted electronically on our Internet web site.
"Privacy Rule" means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E. "Protected Health Information" has the meaning given it in the Privacy Rule, and includes all individually identifiable health information concerning your patients that you provide to the System.
"Security Rule" means the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR part 160 and part 164, subparts A and C. "Services" means the services to which you have been granted access, which may include the Claim Management service, Practice Management service, Electronic Medical Records service and other services.
"System" means the electronic communication network from time to time operated by us, including all hardware provided by us, all software used or provided by us, and all such hardware and software installed at or accessed from your site, and all documentation provided by us in connection with the System, paper or electronic.
"Term" means the initial term and all renewal terms of this Agreement as provided in Section 16.
"User" means you and any other user of the System.
"User ID" means a unique user identification assigned to an individual User pursuant to Section 3.7.
"Workforce" means employees, agents and independent contractors.
"Your Health Information" means Protected Health Information that you or your Workforce enter into the System.
"Your Site" means the location you provided us upon registration, and such other location or locations as we may approve from time to time.
2. Grant of Right to Use Services
2.1 We grant to you and you accept a non-exclusive, personal, nontransferable, limited right to have access to and to use the System, and a non-exclusive, personal, nontransferable, limited license to use any computer software furnished by us for access to or use of the System, for the purpose of obtaining the Services during the Term, subject to your full compliance with the terms and conditions set forth in this Agreement and with our Policies and Procedures. You will not: (a) use the System for time-sharing, rental or service bureau purposes; (b) make the System, in whole or in part, available to any other person, entity or business; (c) copy, reverse engineer, decompile or disassemble the System, in whole or in part, or otherwise attempt to discover the source code to the software used in the System; or (d) modify the Services or the System or associated software or combine the Services or the System with any other software or services not provided or approved by us. You will obtain no rights to the System except for the limited rights to use the System expressly granted by this Agreement.
2.2 The System includes certain third-party software and services, which may require that you enter into separate subscription or licensing agreements with third-party vendors. We may also make available optional services provided by third parties, such as billing, electronic prescribing and clinical laboratory reporting services. You agree to comply with, and upon request to execute, such agreements as may be required for the use of such software or services, and to comply with the terms of any license or other agreement relating to third-party products included in the System or made accessible to you through the System. Your use of the System or of such third-party products or services will constitute your agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.
3. Access to the System
3.1 Verification. You agree that your use of the System is subject to verification by us of your identity and credentials as a health care practitioner, and to your ongoing qualification as such. You agree that we may use and disclose your Personal Information for such purposes, including (without limitation) making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. You agree that we may terminate your access to or use of the System at any time if we are unable at any time to determine or verify your qualifications or credentials.
3.2 Permitted Uses. Subject to the terms of this Agreement, we authorize you to access the System and to use the Services for treatment and for obtaining payment for treatment, and for other purposes expressly authorized in our Policies and Procedures; provided that, except as expressly authorized in our Policies and Procedures, (i) you may access only information pertaining to individuals with whom you have a treatment relationship or for whom a provider who has a treatment relationship with has requested a professional consultation from you, or from whom you have received authorization to use their health information; and (ii) you may use only the minimum necessary information for payment purposes. You agree that you will not access the System or use the Services for any other purposes. In particular:
22.214.171.124 You will not reproduce, publish, or distribute content in connection with the System that infringes any third party's trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right;
126.96.36.199 You will comply with all applicable laws, including laws relating to maintenance of privacy, security, and confidentiality of patient and other health information and the prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages, or otherwise unlawful material;
188.8.131.52 You will not: (a) abuse or misuse the System or the Services, including gaining or attempting to gain unauthorized access to the System, or altering or destroying information in the System except in accordance with accepted practices; (b) using the System or Services in a manner that interferes with other Users' use of the System; or (c) using the System or the Services in any manner that violates our Policies and Procedures; (d) or use any ad blocking mechanism, device, or tool to prevent the placement of advertisements in the System or the Service.
3.3 Clinical Support Information. We may provide information to assist you in clinical decision-making. This may include information and reminders concerning drug interactions, allergies, dosages, as well as general health-care related information and resources. We may also provide forums for our users to exchange information. The information and materials available through this site are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your professional judgment. Information may be placed on our Internet site by us and by third parties beyond our control. We are not responsible for the accuracy or completeness of information available from or through our site. You are not permitted to use our site to advise, diagnose, or otherwise treat users of this site. You assume full risk and responsibility for the use of information you obtain from or through this site, and you agree that IngagePatient, Inc. is not responsible or liable for any claim, loss, or liability arising from the use of the information. We do not recommend or endorse any provider of health care or health-related products, items or services, and the appearance of materials on this site relating to any such products, items or services is not an endorsement or recommendation of them. You agree to review the definitions, functionality, and limitations of the System, and to make an independent determination of their suitability for your use. We and our suppliers and licensors disclaim all warranties, whether expressed or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the System for any purpose.
3.4.1 You will implement and maintain appropriate administrative, physical and technical safeguards to protect information within the System from access, use or alteration from Your Site or using a User ID assigned to you or a member of your Workforce. Such safeguards shall comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your Workforce to transmit, store and process electronic health information through the use of the System.
3.4.2 You will immediately notify us of any breach or suspected breach of the security of the System of which you become aware, or any unauthorized use or disclosure of information within or obtained from the System, and you will take such action to mitigate the breach or suspected breach as we may direct, and will cooperate with us in investigating and mitigating the breach.
3.5 Location of Access. You and your Authorized Workforce are authorized to access the System solely from Your Site, and from other sites from which you have received approval from us to access the System.
3.6 Compliance. You will comply with the terms of this Agreement, our Policies and Procedures, and all applicable laws and regulations. You will be solely responsible for the use of the System by you and your Workforce, and shall indemnify us and hold us harmless from any claim, cost or liability arising from such use, including reasonable attorneys' fees.
3.7 User Identification. We authorize you and your Authorized Workforce to use the User IDs assigned to you by us. You acquire no ownership rights in any User ID, and User IDs may be revoked or changed at any time in our sole discretion. You will adopt and maintain reasonable and appropriate security precautions for User IDs to prevent their disclosure to or use by unauthorized persons. Each member of your Authorized Workforce shall have and use a unique identifier. You will use your best efforts to ensure that no member of your Workforce uses a User ID assigned to another person.
3.8 No Third-Party Access. Except as required by law, you will not permit any third party (other than your Authorized Workforce) to have access to the System or to use the Services without our prior written agreement. You will promptly notify us of any order or demand for compulsory disclosure of health information if the disclosure requires access to or use of the System. You will cooperate fully with us in connection with any such demand.
3.9 Your Workforce.
3.9.1 You may permit your Authorized Workforce to use the System and the Services on your behalf, subject to the terms of this Agreement. You will
184.108.40.206 obtain a unique User ID from us for each member of your Authorized Workforce;
220.127.116.11 train all members of your Authorized Workforce in the requirements of this Agreement and the Policies and Procedures relating to their access to and use of the System and the Services, and ensure that they comply with such requirements;
18.104.22.168 take appropriate disciplinary action against any member of your workforce who violates the terms of this Agreement or the Policies and Procedures;
22.214.171.124 ensure that only you and your Authorized Workforce access the System from Your Site;
126.96.36.199 immediately notify us of the termination of employment of any member of your Authorized Workforce, or of your withdrawal of authorization for any such person to access the System.
3.10 Patient Portal. You may make health information available to your patients through our IngagePatient portal. You are solely responsible for the information that you make available through the IngagePatient portal, for granting access rights to your patients, and for revoking access rights. You agree that you will not use the IngagePatient portal to make available the health information of any person under the age of 18 years.
3.12 Compliance with Law. Subject to the provisions of section 17, you are solely responsible for ensuring that your use of the System and the Services (including making health information available through the System) complies with applicable law. You will not undertake or permit any unlawful use of the System, or take any action that would render the operation or use of the System by us or any other User unlawful. We offer no assurance that your use of the System and the Services under the terms of this Agreement will not violate any law or regulation applicable to you.
3.13 Professional Responsibility. You will be solely responsible for the professional and technical services you provide. We make no representations concerning the completeness, accuracy or utility of any information in the System, or concerning the qualifications or competence of individuals who placed it there. We have no liability for the consequences to you or your patients of your use of the System or the Services.
3.14 Cooperation. You will cooperate with us in the administration of the System, including providing reasonable assistance in evaluating the System and collecting and reporting data requested by us for purposes of administering the System.
3.15 Indemnification. You agree to indemnify, defend, and hold harmless us and other Users, and our and their affiliates, officers, directors, and agents, from and against any claim, cost or liability, including reasonable attorneys' fees, arising out of: (a) the use of the System by you or your Workforce; (b) any breach by you or your Workforce of any representations, warranties or agreements contained in this Agreement; (c) the actions of any person gaining access to the System under a User ID assigned to you or a member of your Workforce; (d) the actions of anyone using a User ID, password or other unique identifier assigned to you or any member of your Workforce that adversely affects the System or any information accessed through the System; and (e) your negligent or willful misconduct, or that of any member of your Workforce.
4. Use of Information
4.1 Purpose of System. The purpose of the System is to store Your Health Information and (i) to make it available to you and your Authorized Workforce; (ii) to facilitate the sharing of individuals' health information among Users, and (iii) to make health information available to your patients through the IngagePatient portal. You may make Your Health Information accessible to other Users and to your patients through the System for these purposes. You authorize us, as your business associate, to use and disclose Your Health Information as follows, subject to the recipient's agreement to comply with our Policies and Procedures and with applicable laws and regulations relating to the use and disclosure of health information, and subject also to the provisions of section 9:
4.1.1 We may permit access to Your Health Information to you and your Authorized Workforce.
4.1.2 We may permit access to Your Health Information to your patients to whom you have agreed to grant access through our IngagePatient portal.
4.1.3 We may permit access to Your Health Information by health care providers and their business associates for treatment through the Chart Share feature of the System. We will obtain your consent before we make Your Health Information available to other providers. You acknowledge that once we have granted access rights to another provider, we have no control over the uses and disclosures that the provider makes of Your Health Information.
4.1.4 We may disclose or permit access to Your Health Information to health plans, health care clearinghouses, medical groups, independent practice associations and other parties responsible for payment and their business associates for the purpose of obtaining payment for services you provide, unless you advise us in writing that the patient has paid out of pocket in full for the service to which the Health Information relates, and has requested that it not be disclosed to his or her health plan.
4.1.5 We may De-Identify Your Health Information and Your Personal Information, and use and disclose De-Indentified Information as provided by Section 5 and Section 7.2.
4.1.6 We may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize us to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.
4.1.7 We may aggregate your health information with that of other users, and share aggregated information among Users.
4.1.8 We may use Your Health Information for the proper management and administration of the System and our business, and to carry out our legal responsibilities. We may also disclose Your Health Information for such purposes if the disclosure is required by law, or we obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient, and the recipient notifies us of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, we may permit access to the system by our contracted system developers under appropriate confidentiality agreements.
4.1.9 We may use or disclose Your Health Information for other purposes, as from time to time described in our Policies and Procedures; provided that we will not make or permit any such use or disclosure that would violate applicable law or regulation if made by you or your business associate. Except as provided in subsection 4.1.7 and subsection and 4.1.8, and notwithstanding any other provision of this section, we will not use or disclose Your Health Information in any manner that would violate the requirements of the Privacy Rule if done by you.
4.2 Responsibility for Misuse by Other Users. You acknowledge that in granting access to the System for the purposes set forth in section 4.1, we will rely on the assurances of the recipients of the information as to (i) their identity and credentials, (ii) the purposes for which they are accessing the system, and (iii) the nature and extent of the information to which they will have access. You acknowledge that, while the System will contain certain technical safeguards against misuse of the System, it will rely to a substantial extent on the representations and undertakings of Users. You agree that we will not be responsible for any unlawful access to or use of Your Health Information by any User resulting from the User's misrepresentation to us, or breach of the User's user agreement or our Policies and Procedures.
4.3 Specially Protected Information. We apply the standards of the Privacy Rule in permitting access to the System. You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Health Information may properly be disclosed for the purposes set forth in section 4.1, subject only to the restrictions of the Privacy Rule. In particular, you will:
4.3.1 not make available through the System any information subject to any restriction on use or disclosure (whether arising from your agreement with the individual or under law), other than the general restrictions contained in the Privacy Rule;
4.3.2 obtain any necessary consents, authorizations or releases from individuals required for making their health information available through the System for the purpose set forth in section 4.1;
4.3.3 include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the System;
4.3.4 not place in the System any information that the you know or have reason to believe is false or materially inaccurate.
4.4 Chart Share. With your consent, we will make your on-line heath record for any patient you designate accessible to any other user of the System whom you approve. You may revoke your consent with respect to any other user at any time. While your consent is in effect, an approved user may view and edit any health record you have designated for his or her use. If you revoke your consent, the approved user will continue to have the ability to view to the health record in the form in which it existed at the time you revoked your consent, but will not be able to view changes made to the record thereafter, and will not be able to edit the record. The same rules apply to your use of another user's record who approves access for you. You and your Workforce are fully responsible for the information in any chart that you share. You and/or your Workforce should not share patient information that violates any state and/or federal laws, such as a positive HIV test result. In the future, IngagePatient may allow you to share only subsections of a patient chart or may allow a referee to share the patient chart with others, in either case, IngagePatient will obtain your consent before using allowing the use of such features. In any event, but especially in cases of potential fraud, misuse and/or abuse of the System, IngagePatient reserves the right, in its sole judgment, to revoke, remove, cancel or deny continued access to any health record or any chart share request.
5. Providing Physician Data to Payers
Without limiting the provisions of Section 7.2, you agree that we may provide De-Identified Health Information and other information (including Your Personal Information and information concerning your practice to any medical group, independent practice association of physicians, health plan or other organization with which you have a contract to provide medical services, or to whose members or enrollees you provide medical services. Such information may identify you, but will not identify any individual to whom you provide services. Such information may include (without limitation) aggregate data concerning your patients, diagnoses, procedures, orders and the like.
6. Product and Service Notifications
We may place advertisements concerning the products and services of third parties on the System, so that you see them when you use the System. We may receive remuneration from the suppliers of these products and services for placing their advertisements. We may use computerized processes to tailor the advertisements to you or to your use of the system. However, except as expressly permitted by this Agreement or by our Policies and Procedures, unless we obtain your consent, we will not disclose to any third party any information that identifies you to enable the third party to market products or services to you directly.
7. Intellectual Property Rights
7.1 Individually Identifiable Health Information. Except as provided in Section 7.2 (De-Identified Information), you retain all rights with regard to your Protected Health Information.
7.2 De-Identified Information. In consideration of our provision of the Services, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Health Information or Your Personal Information pursuant to Section 4.1.5. You agree that we may use, disclose, market, license and sell De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this section are the principal consideration for the provision of the Services, without which we would not enter into this Agreement.
7.3 Other Works and Information. You agree that any information, material or work product you provide to this site, other than Protected Health Information and Personal Information which has not been De-Identified, is the exclusive property of IngagePatient, Inc., and by submitting such content or material you assign to IngagePatient, Inc., all intellectual property rights in such content or material. You agree that we may use, disclose, market, license and sell such information and works, including derivative products, without restriction. This includes, for example, custom templates that you create using the System, and information (other than Protected Health Information or Personal Information which has not been De-Identified) that you contribute to forums, discussion groups and the like. You may provide content or material to this site by participating in forums, discussion groups and the like, or by using the site to create custom templates and the like. Furthermore, you agree that IngagePatient may use, disclose, market, license and sell such material or content, and that you have no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof. You warrant and agree that any material you provide will not infringe on the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law.
8. Individuals' Rights
You shall be solely responsible for affording individuals their rights with respect to Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the System other than Your Health Information.
9. Business Associate Provisions
In maintaining, using and affording access to Your Health Information in accordance with this Agreement, we will:
9.1 Not use or further disclose the information except as permitted or required by this Agreement or as required by law;
9.2 Use appropriate safeguards to prevent use or disclosure of the information other than as provided for by this Agreement, including administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the information;
9.3 Report to you any use or disclosure of the information not provided for by this Agreement of which we become aware, or any security incident as a result of which we determines that unauthorized access has been obtained to Your Health Information;
9.4 Ensure that any of our agents or subcontractors to whom we provide Your Health Information for purposes of assisting us in providing the System or the Services, agrees to the same restrictions and conditions that apply to us with respect to such information, including the obligation to implement reasonable and appropriate safeguards to protect it (it being understood that other Users of the System are not our agents or subcontractors);
9.5 Make available protected health information in accordance with § 164.524 of the Privacy Rule;
9.6 Make available protected health information for amendment and incorporate any amendments to protected health information in accordance with §164.526 of the Privacy Rule;
9.7 Make available the information required to provide an accounting of disclosures in accordance with § 164.528 of the Privacy Rule;
9.8 Make our internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by us on your behalf available to the Sec.