February 20, 2018

Terms of Services

Terms of Service

Effective Date: November 1st, 2018

BY ACCEPTING THESE TERMS AND CONDITIONS (THE “AGREEMENT”) AND/OR BY USING THE MEDCOHERE, INC. (“MEDCOHERE”, “WE”, “US” OR “OUR”) TECHNOLOGY PLATFORM AND ANY OF MEDCOHERE’S WEBSITES OR SERVICES (“SERVICES”), (COLLECTIVELY, THE “MEDCOHERE PLATFORM” or “PLATFORM”), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THIS WILL BE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND MEDCOHERE.

IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD REJECT THEM BY NOT ACCEPTING THIS AGREEMENT AND BY NOT USING THE MEDCOHERE PLATFORM.

YOUR ACCESS TO AND USE OF THE MEDCOHERE PLATFORM IS SUBJECT IN ALL RESPECTS TO THE TERMS OF OUR PRIVACY POLICY AVAILABLE AT [www.medcohere.com/privacypolicy] (“PRIVACY POLICY”), AS WE MAY UPDATE OUR PRIVACY POLICY FROM TIME TO TIME UPON NOTICE TO YOU, AS DESCRIBED IN OUR PRIVACY POLICY.

YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD, YOU ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THE PLATFORM, AND YOU ARE COMPETENT AND CAPABLE OF ENTERING INTO A BINDING CONTRACT.

YOU FURTHER ACKNOWLEDGE, AGREE, AND UNDERSTAND THAT:

  • WE ARE NOT DENTISTS, DOCTORS, NURSES, OR EMERGENCY MEDICAL TECHNICIANS AND WE ARE NOT LICENSED BY ANY STATE OR ASSUMING ANY RESPONSIBILITY FOR YOU OR YOUR PATIENT’S MEDICAL CONDITION. WE DO NOT OFFER PROFESSIONAL ADVICE, DIAGNOSIS OR TREATMENT OF ANY KIND AND OUR PLATFORM IS NOT INTENDED TO REPLACE A ONE-ON-ONE RELATIONSHIP WITH A QUALIFIED MEDICAL PROVIDER, DENTIST OR DENTAL SPECIALIST. A PATIENT’S DECISION OF WHETHER TO SEEK CARE OR TREATMENT SHOULD BE MADE BY THE PATIENT IN CONSULTATION WITH THE PATIENT’S PROVIDER AND NOT THROUGH OUR PLATFORM.

 

  • YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE MEDCOHERE PLATFORM (INCLUDING MAKING HEALTH INFORMATION AVAILABLE THROUGH THE PLATFORM) COMPLIES ALL APPLICABLE LAWS AND POLICIES OR PROCEDURES DICTATED BY YOUR INSTITUTION OR PRACTICE GROUP AND CONTRACTS WITH THIRD PARTY PAYERS, PARTNERS AND AFFILIATES. YOU ARE SOLELY RESONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES YOU PROVIDE. WE OFFER NO ASSURANCE THAT YOUR USE OF THE PLATFORM UNDER THE TERMS OF THIS AGREEMENT WILL NOT VIOLATE ANY LAW, REGULATION, POLICY, OR CONTRACT APPLICABLE TO YOU.

 

  • THESE TERMS AND CONDITIONS REQUIRE BINDING INDIVIDUAL ARBITRATION TO RESOLVE ANY DISPUTES, RATHER THAN JURY TRIALS, AND INCLUDE A CLASS ACTION WAIVER. THIS AGREEMENT LIMITS THE REMEDIES THAT MAY OTHERWISE BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

 

  • OTHER USERS HAVE ACCESS TO THE PLATFORM AND THE ACTIONS OF SUCH OTHER USERS ARE BEYOND OUR CONTROL. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON THE PLATFORM RESULTING FROM ANY USER’S ACTIONS OR FAILURES TO ACT. FURTHERMORE, WE MAKE NO REPRESENTATIONS CONCERNING THE QUALIFICATIONS OR COMPETENCE OF OTHER USERS THAT SUBMIT INFORMATION TO THE PLATFORM AND WE HAVE NO LIABILITY TO YOU OR YOUR PATIENTS RELATING TO OTHER USERS.

References in this Agreement to “you” or “your” refer to both you and any person or entity on whose behalf you act, if any. References to “patient(s)” means an individual whose dental or medical care is being coordinated through the Platform.

Additional Terms

Access and Use of the Platform

Medcohere hereby grants to you a personal, non-transferable, non-sublicensable, non-exclusive, royalty free, limited license to access and use the Platform as an online dental referral management system. You will obtain no rights to the Platform except for the limited rights to use the Platform expressly granted by this Agreement. Nothing contained on Medcohere’s Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to access or use the Platform or any content displayed on the Platform, through the use of framing or otherwise, except: (a) as expressly permitted by this Agreement; or (b) with our prior written permission or the written permission of such third party that may own the trademark or copyright of material displayed in our Platform.

Subject to the terms of this Agreement, we authorize you to access and use the Platform to facilitate referral management, collaboration, coordination, communication and data exchange among your patients, dental providers and other providers, provided that (i) you access only information pertaining to individuals with whom you have a treatment relationship or for whom a provider who has a treatment relationship with such individual(s) has requested a professional consultation from you, or from individuals whom you have received valid authorization to use their health information; and (ii) you use only the minimum necessary information for payment or healthcare operations purposes. You agree that you will not access or use the Platform for any other purposes.

We may suspend access to the Platform by you or any member of your workforce immediately in the event we determine in our sole discretion that access to or use of the Platform by you or the member of your workforce may jeopardize the Platform or the confidentiality, privacy, security, integrity or availability of information within the Platform. Our election to suspend access to the Platform shall not waive or affect our rights to terminate this Agreement as permitted under this Agreement.

Except as required by law, you will not permit any third party (other than your “Authorized Workforce Members” as described in the paragraph below) to have access to the Platform 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 Platform. You will cooperate fully with us in connection with any such demand.

You hereby acknowledge that we may permit access to the Platform by our contracted system developers under appropriate confidentiality agreements and that we reserve the right at all times to disclose information we deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, consistent with our Privacy Policy.

Authorized Workforce Members

You may permit your Authorized Workforce Members to use Platform on your behalf, subject to the terms of this Agreement, including without limitation (i) obtaining a unique user identification (“User ID”) assigned to an individual from us for each Authorized Workforce Member; (ii) ensuring your Authorized Workforce Members comply with the terms of this Agreement and taking appropriate disciplinary action against any individual who violates the terms of this Agreement; (iii) ensuring that only you and your Authorized Workforce Members access the Platform from the location you provided to us upon registration or such other location or locations as we may approve from time to time; (iv) immediately notify us of the termination of employment of any Authorized Workforce Member, or of your withdrawal of authorization for any such person to access the Platform.

For the avoidance of doubt, you will not permit any third party (other than your Authorized Workforce Members) to have access to the Platform 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 Platform. You will cooperate fully with us in connection with any such demand.

Verification

You agree that your use of the Platform is subject to verification by us of your identity and credentials as a licensed dental or medical practitioner in good standing with all the necessary and appropriate federal, state, and institutional requirements that are legally mandated and appropriate for you to render care, 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 Platform at any time if we are unable at any time to determine or verify your qualifications or credentials.

Implementation

You will acquire, install, configure and maintain all hardware, software and communications systems necessary to access the Platform (your “Implementation”). Your Implementation will comply with the specifications from time to time established by us. You will ensure that your Implementation is compatible with the Platform. If we notify you that your Implementation is incompatible with the Platform, you will eliminate the incompatibility, and we may suspend Platform access to you until you do so.

Information Provided By Other Users

Dentists, dental specialists and other providers using the Platform may provide information to assist you in clinical decision-making or referral management. This may include information and reminders concerning medications or treatments, as well as general provider related information and resources. The Platform may also have forums for dental and medical providers using the Platform to exchange information, including without limitation, Protected Health Information. We are not responsible for the accuracy, completeness, quality, integrity, or legality of information available from or through our Platform. Such information is provided by other users of the Platform and is not information generated by us, but merely conveyed in our Platform. You further acknowledge that we do not verify the nature or status of any such data being used, disclosed, accessed or transferred as part of the Platform. You hereby assume full risk and responsibility for the use of information you obtain from or through this Platform, and you agree that we are not responsible or liable for any claim, loss, or liability arising from the use or the results of use of the information. We do not recommend or endorse any provider or provider-related products, items or services, and the appearance of materials on this Platform relating to any such products, items or services is not an endorsement or recommendation of them. You agree to make an independent determination of their suitability for your use.

Patient Consent; Notice of Privacy Practices

You and your Authorized Workforce Members must make independent and informed decisions in full compliance with all applicable law prior to initiating electronic uploads of patient information into the Platform and specifically must not upload any data (a) for which the applicable patient has opted out of being uploaded into the Platform; and/or (b) for which applicable law requires a specific patient authorization or consent, where such authorization or consent has not been obtained by you. Without limiting the generality of the foregoing, you will not directly or indirectly use, disclose, access, upload and/or transfer from or into the Platform, any AIDS/HIV, mental health, sexual health, addiction diagnoses or treatments or related patient data or other patient data for which the provider is required to acquire additional authorizations and/or separate written consents. You are solely responsible for training your Authorized Workforce Members on the patient opt-in or opt-out procedures as it relates to Platform. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold Medcohere and its officers, directors, employees, and agents harmless from and against any and all actions, claims, liabilities, losses, costs, damages, and expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of, resulting from your failure to comply with the foregoing requirements.

Furthermore, you shall include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Platform and you must ensure that your notice of privacy practices is consistent with Medcohere’s Notice of Privacy Practices, available at www.medcohere.com/privacy/ in connection with your use of the Platform. You further acknowledge that we may change such privacy practices from time to time upon notice to you as described in our Privacy Policy.

Security Safeguards; Cooperation

You will implement and maintain the highest industry standard administrative, physical and technical safeguards to protect information within the Platform from unauthorized access, use or alteration. 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 Platform. You will be solely responsible for the use of the Platform by you and your employees, agents, and independent contractors. You will immediately notify us of any suspected breach of the security of the Platform of which you become aware, or any unauthorized access, use or disclosure of information within or obtained from the Platform, and you will take such action to mitigate the suspected breach as we may direct, and will fully cooperate with us in investigating and mitigating the breach.

Furthermore, you will cooperate with us in the administration of the Platform, including providing reasonable assistance in evaluating the Platform and collecting and reporting data requested by us for purposes of administering the Platform.

User Identification and Passwords; User Representations

We authorize you and your Authorized Workforce Members 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 and passwords obtained in connection with such User IDs to prevent their disclosure to or use by unauthorized persons. Each Authorized Workforce Member shall have and use a unique identifier and password. You will use your best efforts to ensure that no individual uses a User ID or password assigned to another person within your organization.

You acknowledge that in granting you and your Authorized Workforce Members access to the Platform, we will rely on the assurances of such individuals as to (i) their identity and credentials, (ii) the purposes for which they are accessing the Platform, and (iii) the nature and extent of the information to which they will have access. You acknowledge that, while the Platform will contain certain technical safeguards against misuse of the Platform, it will rely to a substantial extent on the representations and undertakings of its users. You agree that we will not be responsible for any unlawful access to or use of Protected Health Information by any Authorized Workforce Member resulting from the user’s misrepresentation to us or breach of this Agreement.

Modification

You acknowledge and agree that the Medcohere Platform is under development and will continually change as Medcohere may determine from time to time. Medcohere’s Platform may contain typographical errors, other inadvertent errors or inaccuracies. We reserve the right to make changes to our descriptions or specifications of any products or services, websites or other information contained in the Platform without obligation to issue any notice of such changes. We may change any of the terms set forth in this Agreement by providing you not less than fifteen (15) days’ notice. Upon receipt of such a notice, you may terminate this Agreement by giving written notice to us on or before the effective date of the change. You agree that your failure to give notice of termination prior to the effective date of the change constitutes acceptance of the change, which shall thereupon become part of this Agreement.

Third Party Disclaimer

The Platform 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 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 Platform or made accessible to you through the Platform. Your use of the Platform 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. Notwithstanding the foregoing, nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.

The Medcohere Platform may provide links to third party websites or advertisements concerning the products and services of third parties on the Platform, so that you see them when you use the Platform. Medcohere does not recommend or endorse the content on any third party websites or advertisements, and does not make any representations regarding their content or accuracy. Your use of third party websites is at your own risk and subject to the terms of use for such sites. We may receive remuneration from the suppliers of these products and services for placing their advertisements on our Platform. We may use computerized processes to tailor the advertisements to you or to your use of the Platform. However, except as expressly permitted by this Agreement or 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.

Medcohere is not responsible for and will not be a party to any transactions between you and a third party provider of products, information or services. Medcohere does not monitor such interactions to ensure the confidentiality of your personal information, including credit card information. Any charges or obligations you incur in your dealings with third parties linked to or in conjunction with Medcohere’s Platform are solely your responsibility.

Forums; User Disputes

We may offer forums for the exchange of information among our users. You agree to assume all responsibility for your use of such forums. In particular, you understand that we do not assure the accuracy, reliability, completeness, quality, integrity, legality, confidentiality or security of information made available through the use of such forums. You acknowledge that any information you post in a forum or discussion group is available to the dental practitioners and other providers invited to the forum.

You are solely responsible for your interaction with other users, both online or offline. We have no obligation to become involved in disputes between you and other users. If you have a dispute with another provider or patient, you release Medcohere (and our officers, directors, agents, employees, subsidiaries, and affiliates) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.

Protected Health Information; De-identified Data

You shall be solely responsible for affording individuals their rights with respect to Protected Health Information you or your workforce enter into the Platform, 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 Platform other than their Protected Health Information. Furthermore, you will not make Protected Health Information available through the Platform to your patients or other users for any purposes other than as expressly provided in this Agreement.

We do not claim any ownership rights to your Protected Health Information. Notwithstanding the foregoing, you hereby grant us a nonexclusive royalty-free license to  (i) use your Protected Health Information to create de-identified data in compliance with 45 CFR § 164.514(a)-(c) (“De-identified Data”) and (ii) use, disclose, market, license and sell De-Identified Data for any purpose without restriction, including without limitation, to aggregate Protected Health Information with that of other Platform users and share aggregated information among our Platform users. You further acknowledge that you obtain no ownership right, title or interest from us in or to De-identified Data (including without limitation, any aggregated de-identified data) or in the proceeds of any sale, license, or other commercialization thereof.

Intellectual Property Rights

The information, software, artwork, text, video, audio, pictures, content, trademarks, trade dress, and other intellectual property owned by Medcohere or its licensors and made available to you through the Platform (“Medcohere Content”) are the proprietary property of Medcohere and its licensors, and are protected by U.S. and international copyright and other intellectual property laws, or are used under the principles of fair use. Medcohere and its licensors retain all rights with respect to the Platform and the Medcohere Content except those expressly granted to you in this Agreement. You agree not to duplicate, publish, display, distribute, modify, or create derivative works of the Medcohere Content unless specifically authorized in writing by Medcohere.

Furthermore, You agree that any information, material, comments, feedback or work product you provide through the Platform, other than Protected Health Information, your personal information and derivatives thereof which have not been de-identified (“Submitted Content”), is our exclusive property, and by submitting such content or material you assign to us all intellectual property rights in such Submitted Content. You agree that we may use, disclose, market, license and sell such Submitted Content, including derivative products, without restriction and that you have no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof. This includes, for example, information that you contribute to forums, discussion groups and the like.

Providing your Practice Information To Third Parties

You hereby agree that we may provide information concerning your practice, including your personal information to any dental or medical group, independent practice association of dentists or dental specialists or other providers, or other organization with which you have a contract to provide dental or medical services, or to whose members or enrollees you provide such 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.

Standards of Conduct

By accessing our Platform, you agree to abide by the following standards of conduct. You hereby represent and warrant that the information you provide when registering as a user of the Medcohere Platform, and all information that you subsequently provide regarding yourself or others, is true and accurate and not misleading.

Furthermore, you agree that you will not, and will not authorize or facilitate any attempt by another person to use our Platform to:

  1. Transmit or post any information, content, language, or messages that you know or have reason to believe is unlawful, false, materially inaccurate, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, hateful, sexist, racially or ethnically insensitive or otherwise objectionable, as determined by Medcohere.
  2. Transmit or upload information which infringes another’s copyright, trademark trade secret, or other proprietary rights or rights of publicity.
  3. Impersonate another person or invade the privacy of any person, including but not limited to posting personally identifying or otherwise private or sensitive information or other materials about a person without their consent (or their parent’s consent in the case of a child under 13 years of age).
  4. Upload, post, e-mail, transmit or otherwise make available any software viruses, Trojan horses, worms or any other malicious application or obtain unauthorized access to any computer system through the Platform or use the Platform in a manner that could disable, overburden, or impair the Platform or interfere with any other party’s use and enjoyment of the Platform, such as through sending “spam” email.
  5. Use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material or content displayed on the Platform, attack the Platform via a denial-of-service attack or otherwise attempt to interfere with the proper working of the Platform.
  6. Use the Platform on a service bureau, time sharing, rental or any similar basis; alter or make derivative works of the Platform; or reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from the Platform or any portion thereof.
  7. Use the Platform for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations.
  8. Seek to obtain access to any materials or information through “hacking”, “data harvesting”, or through other means we have not intentionally made available to you through the Platform; or use the Platform to artificially generate traffic or page links or for any other purpose not expressly allowed under this Agreement.
  9. Make available through the Platform 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 HIPAA Privacy Rule.
  10. Undertake or permit any unlawful use of the Platform or take any action that would render the operation or use of the Platform by us or any other user unlawful.

Confidential Information

You may not disclose our confidential information to any other person, and you may not use any of our confidential information except for the purposes set forth in this Agreement. For the purposes of this Agreement, our confidential information includes 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.

Except as otherwise provided in this Agreement, you may not, without our prior written consent, at any time, during or after the term of this Agreement, directly or indirectly, divulge or disclose confidential information for any purpose or use confidential information for its own benefit or for the purposes or benefit of any other person. You agree to hold all confidential information in strict confidence and to take all measures necessary to prevent unauthorized copying, use, or disclosure of confidential information, and to keep the confidential information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will disclose confidential information only to members of your workforce who have a need to use it for the purposes of this Agreement. You will inform all such recipients of the confidential nature of confidential information and will instruct them to deal with confidential information in accordance with the terms of this Agreement. You will immediately advise us in writing of any improper disclosure, misappropriation, or misuse of the confidential information by any person, which may come to your attention.

You agree that we will suffer irreparable harm if you fail to comply with any of the foregoing confidentiality obligations, and you further agree that monetary damages will be inadequate to compensate us for any such breach. Accordingly, you agree that we will, in addition to any other remedies available to us at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond.

Loss of Data; Unauthorized Access or Corruption.

Medcohere is not a data storage provider and you should not rely on our Platform for the storage of your data. You hereby acknowledge that you may lose personal information, dental or medical records or any other valuable data stored with Medcohere and that your data should be separately stored by you through other means outside of our Platform. Furthermore, we are not responsible for unauthorized access, alteration, theft, or corruption of your data, facilities, or equipment by individuals or entities using the Platform, whether by accident, fraudulent or any other means. You are solely  responsible for validating the accuracy of all reports, and for protecting your data and programs from loss by implementing appropriate security measures. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM OPERATOR ERROR, EQUIPMENT OR SYSTEM MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE SERVICES.

Term; Breach and Termination

The initial term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year, after which the term shall automatically renew for successive one (1) year periods unless terminated by either party in accordance with this Section. This Agreement may be suspended or terminated by Medcohere immediately and without notice to you in our sole discretion if (i) you fail to comply with any term or condition of this Agreement; (ii) you are named as a defendant in a criminal proceeding for a violation of federal or state law; (iii) a finding or stipulation is made or entered into that you have violated any standard or requirement of federal or state law relating to the privacy or security of health information is made in any administrative or civil proceeding; (iv) you are excluded from participation in a federal or state health care program or (v) you cease to be qualified to provide services as a dentist or medical provider or we are unable to verify your qualifications as such. In addition, Medcohere may at any time suspend your access to the Medcohere Platform in our sole discretion, if you are in breach of this Agreement or use the Medcohere Platform in a manner that impairs the operation of the Medcohere Platform or that violates our Privacy Policy. Either party may terminate this Agreement at any time without cause upon sixty (60) days prior written notice. You agree that we are not liable to you or any third party for termination of your access to the Medcohere Platform. Upon termination for any reason, you will remove all software provided under this Agreement from your computer systems, you will cease to have access to the Platform, and you will return to us all hardware, software, and documentation provided by or on behalf of us.

Cancellation of your Account

You are solely responsible for properly canceling your account. A phone request to cancel your account is not considered cancellation. You can cancel your account at any time by emailing info@medcohere.com and notifying us of your request. Such cancellation of your account will result in the deactivation or deletion of your access to your account, and the forfeiture and relinquishment of all content in your account.

Enforcement of Terms; Survival

If you fail to fulfill any of your obligations under this Agreement, and this Agreement terminates, Medcohere may pursue all available legal remedies. All provisions of this Agreement which by their nature should survive any termination of this Agreement shall remain in full force and effect after such termination.

Disclaimer of Warranty

MEDCOHERE PROVIDES THE MEDCOHERE PLATFORM AND THE INFORMATION CONTAINED IN THE PLATFORM TO YOU “AS IS”, WITH ALL FAULTS, AND WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE PLATFORM OR THE INFORMATION IN THE PLATFORM, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY MEDCOHERE EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY FOR THE MEDCOHERE PLATFORM, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. WE DISCLAIM ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE PLATFORM.

WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR ACCESSIBLE AT ALL TIMES, OR THE USE OR THE RESULTS OF THE USE OF THE PLATFORM WILL BE CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. WHEN YOU ACCESS THE PLATFORM, YOU DO SO AT YOUR OWN RISK. MEDCOHERE DOES NOT WARRANT OR REPRESENT THAT MATERIALS YOU DOWNLOAD FROM THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER HARMFUL FEATURES.

YOU ACKNOWLEDGE THAT ACCESS TO THE PLATFORM WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION SHALL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR AND DO NOT MAKE ANY WARRANTIES RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED OVER THOSE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.

Limitations of Liability and Releases

IN NO EVENT SHALL MEDCOHERE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, PROFESSIONAL ADVISORS, CONSULTANTS, CONTRACTORS, AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT MEDCOHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

MEDCOHERE’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OF THE MEDCOHERE PLATFORM, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND FOR ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED U.S. $1.

Exclusions

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU WITH RESPECT TO CERTAIN TYPES OF DAMAGES OR CLAIMS.

Indemnification

To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Medcohere, its officers, directors, employees, attorneys, professional advisors, consultants, contractors, agents, licensors, and suppliers (collectively, the “Indemnitees”) and other users of the Platform and their respective Indemnitees, from and against any claims, actions or demands, liabilities and settlements (collectively, “Claim(s)”) including without limitation, reasonable legal and accounting fees, related to, resulting from, or alleged to result from: (a) your violation of this Agreement (b) the negligent use of the Platform by you or your Authorized Workforce Members; (c) any breach by you or your workforce of any representations or warranties contained in this Agreement; (d) the negligent actions of any person gaining access to the Platform under a User ID assigned to you or a member of your workforce; (e) 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 Platform or any information accessed through the Platform; and (f) your negligent or willful misconduct, or that of any member of your workforce. Medcohere reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to fully cooperate with our defense of these Claims. You agree not to settle any matter without the prior written consent of Medcohere. Medcohere will use reasonable efforts to notify you of any such Claim upon becoming aware of it. You further agree that, except to the extent such right may not be waived by law, you will not commence any legal action or lawsuit or otherwise assert or seek relief for any Claim against the Indemnitees.

Jurisdictional Issues

We make no representation that our Platform is appropriate or available for use outside of the United States. Those who choose to access the Medcohere Platform from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws and regulations.

Class Action Waiver

WHERE PERMITTED BY APPLICABLE LAW YOU AND MEDCOHERE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR MEDCOHERE’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. You further acknowledge and agree that no arbitrator or judge may consolidate more than one person’s Claims or otherwise preside over any form of a representative or class proceeding. This Class Action Waiver section will survive any termination of this Agreement.

Dispute Resolution

Agreement to Arbitrate

You and Medcohere agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Medcohere Platform (collectively, “Dispute(s)”) will be settled by binding arbitration. You hereby acknowledge and agree that you and Medcohere are each waiving the right to a trial by jury. This “Dispute Resolution” section will survive any termination of this Agreement.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written “Demand for Arbitration” as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location; Procedure; Fees

Unless you and Medcohere otherwise agree, the arbitration will be conducted in Suffolk County, Massachusetts. If the value of the relief sought is $10,000 or less, Medcohere may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Medcohere (subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant). Attendance at an in-person hearing may be made by telephone unless the arbitrator requires otherwise. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules.

Arbitrator’s Decision

The arbitrator will render an award within the timeframe specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitations of Liability and Releases” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in the arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.

Electronic Referrals; Patient Portal

With your consent, we will make Protected Health Information for any patient you designate accessible to any other user of the Platform whom you approve. You hereby acknowledge that once we have granted access rights to another user of the Platform, we have no control over the uses and disclosures that the user makes of Protected Health Information. 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 dental or medical 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 dental or medical 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 record that you share. In any event, but especially in cases of potential fraud, misuse and/or abuse of the Platform, we reserve the right, in our sole judgment, to revoke, remove, cancel or deny continued access to any dental or medical record or any electronic referral request.

You may make health information available to your patients through our patient portal within the Platform. You are solely responsible for the information that you make available through the patient portal, for granting access rights to your patients, and for revoking access rights. You agree that you will not use the patient portal to make available the health information of any person under the age of 18 years.

Consent to Communicate via Electronic Form

For contractual purposes, you (a) consent to receive all notices from Medcohere in an electronic form; and (b) agree that all terms and conditions, notices, disclosures, and other communications that Medcohere provides to you in electronic form satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.

Marketing; Right to use Logo or Trademark

You agree that we may refer to your company or practice group (collectively, “company”) by name, together with a brief description of your company’s business and the Platform, in any press releases or advertising and marketing publications utilized or issued by us. You give us permission to publish and/or use your company logo or registered mark for all purposes connected with the business of the Platform without further permission or acquiescence required by you or your company. It is understood that we may use said logo or mark for advertising relating to the Platform, for recruiting of members, published materials, seminars, and symposiums relating to the Platform regardless of whether you are a sponsor of said event, and all other purposes related to our company and our mission. We may use your company logo or mark for these purposes, and your company hereby releases us from all liability relating to the publication or use of the logo/mark.

Digital Millennium Copyright Act

If you are a copyright owner or authorized to act on behalf of one and believe that any content on our Platform, including content submitted by another user infringes upon your copyright, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) (see 17 U.S.C. 512(c)(3) for further information) by providing our Copyright Agent (listed below) with the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your address, telephone number, and email address; (v) a written statement that you have a good faith belief that use of the content in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a written statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If any content that you submitted onto our Platform has been removed as a result of a notification as described above and you believe that such content or any portion thereof was posted lawfully, please contact us about our counter-notification procedure through which you can dispute the allegation and request re-posting of the content at issue.

Medcohere’s designated Copyright Agent for notice of claims of infringement is: www.copyright.gov/dmca

You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid.

Governing Law;

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys’ fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

Conflict

These Terms must be read in conjunction (i) with other agreements into which you may enter concerning the Platform, and (ii) with our Privacy Policy. The provisions of our Privacy Policy are incorporated herein. TO THE EXTENT THESE TERMS CONFLICT WITH THE TERMS AND CONDITIONS OF ANY SPECIFIC AGREEMENT YOU ENTER WITH US, THE TERMS AND CONDITIONS OF SUCH SPECIFIC AGREEMENT WILL CONTROL. Similarly, to the extent these terms conflict with the terms of our Privacy Policy, the terms of our Privacy Policy will control.

Any conflict, inconsistency or ambiguity in or between this Agreement and the HIPAA Privacy, Security and Breach Notification rules shall be resolved in favor of a meaning that permits Medcohere to comply with all applicable HIPAA regulations. If this Agreement contains any inconsistencies or conflicts with this the business associate agreement executed by and between the parties, the business associate agreement shall govern with respect to the parties’ HIPAA compliance obligations.

Injunctive Relief

You agree that we will suffer irreparable harm if you fail to comply with its obligations set forth in this Agreement, and you further agree that monetary damages will be inadequate to compensate us for any such breach. Accordingly, you agree that we will, in addition to any other remedies available to us at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond.

General

This Agreement supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and Medcohere relating to the Medcohere Platform. You may not assign, delegate or otherwise transfer this Agreement or any other of your rights or obligations under this Agreement, in whole or in part. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to exceed the limitations permitted by applicable law, as determined by such court in such action, then the provisions will be deemed reformed to the maximum less restrictive limitations permitted by applicable law and the parties hereby expressly acknowledge their desire that in such event such action be taken. Notwithstanding the foregoing, in the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, such unenforceability shall not affect the remaining terms of this Agreement in such jurisdiction or render unenforceable or invalidate such terms and provisions of this Agreement in other jurisdictions. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section.

Notices

Any and all notices required or permitted under this Agreement shall be sent by United States mail to the address provided below or to such other and different addresses as the parties may designate in writing. If you supply us with an electronic mail address, we may give notice by email message addressed to such address; provided that if we receive notice that the email message was not delivered, we will give the notice by United States mail.

To Us:

Medcohere, Inc, 83 Hartwell Ave, Lexington, MA 02421.

To you, at the address provided to us when you registered as a user of the Platform.

For additional information

If you have any questions about the terms and conditions in this Agreement, please contact info@medcohere.com .

Copyright © 2018 Medcohere Inc. All rights reserved.

 

*** YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. ***