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KAREO, INC.
TELEMEDICINE PLATFORM SERVICES
TERMS OF USE
 
These Telemedicine Platform Services Terms of Use (“Terms”) together with (if applicable) the online activation sidebar (“Activation Sidebar”) submitted in connection herewith and the documents referenced herein create a legally binding agreement (the “Agreement”) between Kareo, Inc. (“Kareo”) and the entity or (if applicable) individual (“Provider”) that submitted the Activation Sidebar. By signing up for the Kareo Telemedicine Platform you are entering into the Agreement and you agree to be bound by its terms and conditions.  Please read the Agreement carefully and do not submit the Activation Sidebar or access the Kareo Telemedicine Platform or use the Telemedicine Platform Services if you are unwilling or unable to be bound by the terms of the Agreement. PROVIDER’S ACCESS TO, AND USE OF, THE TELEMEDICINE PLATFORM SERVICES AND KAREO’S OBLIGATIONS WITH RESPECT THERETO ARE EXPRESSLY CONDITIONED ON PROVIDER’S ACCEPTANCE OF THE AGREEMENT. The parties agree as follows:
  1. Engagement. Kareo will provide the administrative and technological support services described herein and in the Activation Sidebar ("Telemedicine Platform Services"), which are designed to facilitate Provider’s delivery of Telemedicine Medical Services (defined below). Provider’s “Telemedicine Medical Services” include, without limitation, the delivery of medical care by Provider to a patient (“Patient”) physically located at another site through the use of advanced telecommunications technology that allows Provider to remotely see and hear the Patient in real time.
  2. Kareo’s Responsibilities. Subject to the terms and conditions of the Agreement, Kareo agrees to use commercially reasonable efforts to provide the following Telemedicine Platform Services, in each case:
    1. Telemedicine Platform. Access to a web-based platform (“Kareo Telemedicine Platform”) to (i) Provider and Practitioners (defined below) to connect such individuals with Patients at other locations via video conference, and (ii) Provider’s non-Practitioner employees and contractors (together with Practitioners, “Staff”) to perform administrative and other non-Telemedicine Medical Services tasks.
    2. Training and Education. Orientation, training, and education materials to Provider and Provider's Staff.
    3. Management and Administration Services. Administrative support to Provider and its Staff that may be required from time-to-time by Provider for its management and administration of Telemedicine Medical Services, including:
      1. Reimbursement, including, information regarding third-party payor requirements and billing and collection for Telemedicine Medical Services;
      2. Notice and/or consent requirements for Provider relating to the provision of Telemedicine Medical Services;
      3. Compliance, including, coordination with Provider regarding applicable laws, rules, regulations and standards imposed by licensing and accreditation bodies; and
      4. Operation of a toll-free customer support line to provide technical and administrative assistance to Provider.
    4. Other Support Services. Other support services as may be requested by Provider from time-to-time and as shall be mutually agreed upon by the parties.
  1. Provider’s Responsibilities. Provider is, and will remain, solely responsible for: (a) the provision of Telemedicine Medical Services and all other professional medical services and aspects relating to Provider's practice of medicine (for the avoidance of doubt, Telemedicine Medical Services shall be performed by Provider for appropriate visits as determined in Provider's, or Practitioner’s, as applicable, sole professional judgment), (b) documenting the Telemedicine Medical Services in Provider's clinical records, (c) billing and collecting for Telemedicine Medical Services, (d) providing notice to and/or obtaining consent from any third-parties relating to the provision of Telemedicine Medical Services through the Kareo Telemedicine Platform, (e) ensuring the Kareo Telemedicine Platform is used in accordance with applicable instructions, training materials and other online material that may be made available by Kareo from time to time, (f) obtaining and maintaining both the functionality and security of all information technology software solutions and related services necessary to connect to, access or otherwise use the Kareo Telemedicine Platform and the Telemedicine Platform Services, and (g) complying with applicable laws, rules, regulations and standards imposed by government health care programs and other payors, licensing agencies and applicable accreditation bodies, including, without limitation, with respect to the provision of Telemedicine Medical Services.
  2. Compensation. Provider shall compensate Kareo in accordance with the rate schedule in the Activation Sidebar. The parties acknowledge and agree that this compensation is exclusive of any taxes and represents the customary charge for telemedicine support services and is based on the fair market value for the Telemedicine Platform Services rendered.
  3. Platform.
    1. Restrictions on Use. Provider and Staff must use the Kareo Telemedicine Platform solely for its intended purposes in accordance with the Agreement. Provider may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Kareo Telemedicine Platform, or make it available to any third party, other than as expressly set forth in the Agreement. Provider and Staff must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Kareo Telemedicine Platform, or any part thereof.
    2. Changes to Platform. Kareo may, in its sole discretion, make any changes to the Kareo Telemedicine Platform that it deems necessary or useful to (i) maintain or enhance (A) the quality or delivery of Kareo’s products or services to its customers, (B) the competitive strength of, or market for, Kareo’s products or services, (C) the Kareo Telemedicine Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
  4. Proprietary Rights. Except as expressly set forth in the Agreement, Kareo retains and reserves all right, title and interest in and to (a) the Kareo Telemedicine Platform and the Telemedicine Platform Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Telemedicine Platform Services, and (c) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Provider acquires any right, title or interest in any Services IP, Provider hereby irrevocably assigns all of its right, title and interest in such Services IP to Kareo. If Provider, submits comments, suggestions, or other feedback regarding the Kareo Telemedicine Platform or the Telemedicine Platform Services (“Feedback”), Provider hereby grants Kareo a perpetual license to use and otherwise exploit such Feedback for any lawful purpose. In addition, to the extent Kareo and a Patient and/or any Staff directly enter into an end user service agreement and/or privacy policy, Provider acknowledges that such Kareo Telemedicine Platform users may grant Kareo additional rights. Additionally, Kareo may identify Provider as a customer, and use Provider’s logo and trademark, in Kareo’s promotional materials.
  5. Provider and Patient Data.
    1. HIPAA and PHI. Kareo acknowledges and agrees that it is a “Business Associate” as such term is defined under the Health Insurance Portability and Accountability Act of 1996, and associated regulations as amended from time to time (“HIPAA”). Furthermore, each party acknowledges and understands that the Kareo Telemedicine Platform requires the use and disclosure of protected health information (“PHI”) as defined under HIPAA. If Provider is a current Kareo customer, the Business Associate Agreement (“BAA”) currently in effect between the parties will govern the Telemedicine Medical Services provided under this Agreement. If Provider is not a current Kareo customer, the signed BAA posted at “My Account” will govern the Telemedicine Medical Services provided under this Agreement. If a conflict exists between the terms and conditions of the Agreement and those of the BAA, the terms and conditions of the BAA will control with respect to the treatment of PHI. Unless expressly provided otherwise in writing, each party shall only use PHI as authorized under the Agreement and in accordance with the BAA. Provider hereby grants a perpetual non-exclusive, transferable, sublicensable, royalty free world-wide license to Kareo to use PHI on an anonymized and de-identified basis consistent with 45 CFR 164.514(b) to the fullest extent allowed under law.
    2. Non-PHI Data. As between Kareo and Provider, Provider owns all right, title, and interest in and to any non-PHI data that is collected by Kareo from Provider or its Staff, and in connection with their use of the Telemedicine Platform Services (“Provider Data”). To the fullest extent permissible under applicable law, Provider grants to Kareo a perpetual non-exclusive, transferable, sublicensable, royalty free world-wide license to use Provider Data (i) to provide the Telemedicine Platform Services, and (ii) as necessary to monitor and improve the Kareo Telemedicine Platform. Additionally, Provider grants to Kareo a perpetual, non-exclusive, transferable, sublicensable, royalty free world-wide license to use Provider Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such data (“Blind Data”). Notwithstanding anything in the Agreement to the contrary, to the extent Kareo collects or generates Blind Data, such Blind Data will be owned solely by Kareo and may be used for any lawful business purpose without a duty of accounting or obligation; provided, such Blind Data does not identify the source of such data.
  6. Term.
    1. Effective Date. The terms of the Agreement will become effective upon submission of the Activation Sidebar.
    2. Term. Either party may terminate this Agreement at any time for any reason by providing notice to the other party.
    3. Survival. Sections 6, 7 (solely with respect to accrued license rights in PHI, Provider Data and Blind Data), and 9-14 of this Agreement will survive any expiration or termination of the Agreement.
  7. Representations and Warranties.
    1. Mutual Representations. Each party represents (i) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under the Agreement, and (ii) the execution of the Agreement by its representative who submitted the Activation Sidebar has been duly authorized by all necessary corporate or organizational action of such party.
    2. Kareo Representations. Kareo represents and warrants that it will (i) provide the Telemedicine Platform Services in a professional and workman like manner, and (ii) maintain administrative, physical, and technical safeguards designed to protect the security and confidentiality of PHI.
    3. Provider Representations. Provider represents and warrants to Kareo that Provider’s physician, licensed therapist and other licensed health care practitioner employees and contractors (each a "Practitioner") are duly licensed without restriction to practice medicine, and are not (i) currently excluded, debarred, or otherwise ineligible to participate in the Federal health care programs as defined in 42 USC § 1320a-7b(f); (ii) convicted of a criminal offense related to the provision of health care items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal health care programs; or (iii) under investigation or otherwise aware of any circumstances which may result in Provider or any Practitioner from being excluded from participation in the Federal health care programs. For the avoidance of doubt, these shall be ongoing representations and warranties during the term of the Agreement. Provider shall immediately notify Kareo of any change in the status of these representations and warranties.
  8. Disclaimer. THE TELEMEDICINE PLATFORM SERVICES ARE PROVIDED “AS IS.” KAREO, ITS SUPPLIERS AND VENDORS, AND ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUPPLIERS, VENDORS, LICENSORS OR PARTNERS (COLLECTIVELY, “KAREO PARTIES”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED HEREIN OR THE ACTIVATION SIDEBAR, NO KAREO PARTY WARRANTS THAT ACCESS TO THE KAREO TELEMEDICINE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, NO KAREO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO THE KAREO TELEMEDICINE PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER HEREBY WAIVES ANY CLAIM AGAINST EACH KAREO PARTY RELATING TO SUCH TECHNOLOGY SERVICES AND AGREES ANY SUCH CLAIM WILL, AS BETWEEN THE APPLICABLE KAREO PARTY AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. ADDITIONALLY, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR IN THE ACTIVATION SIDEBAR, PROVIDER ACKNOWLEDGES AND AGREES (A) NO PART OF THE TELEMEDICINE PLATFORM SERVICES CONSTITUTES THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER, AND (B) THE TELEMEDICINE PLATFORM SERVICES DO NOT ENSURE PROVIDER’S COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS.
  9. Limitation of Liability. EXCEPT WITH RESPECT TO PROVIDER’S OBLIGATION UNDER SECTION 13 AND BOTH PARTIES’ OBLIGATIONS UNDER SECTION 14, IN NO EVENT WILL (A) EITHER PARTY’S OR ANY KAREO PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY PROVIDER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), OR (B) EITHER PARTY OR ANY KAREO PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  10. Indemnity. Provider shall defend the Kareo Parties against any claim, suit, demand, or action made or brought against any Kareo party (a) alleging that Provider’s or its Staff’s use of the Kareo Telemedicine Platform in violation of the Agreement, infringes, misappropriates or otherwise violates the intellectual property rights of any person, (b) relating to or arising from Provider’s relationship with any Patient, including Telemedicine Medical Services provided via the Kareo Telemedicine Platform, (c) relating to or arising from any Kareo Party’s permitted use of PHI or Provider Data, or (d) relating to arising from Provider’s violation of laws or regulations. Provider shall indemnify and hold harmless the Kareo Parties from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) awarded against the Kareo Parties relating to any such claim, suit, demand, or action.
  11. Confidentiality. Each party acknowledges that it may receive information regarding the business, technology and finances of the other party, all of which information, when disclosed in circumstances of confidence that the receiving party should reasonably understand is confidential, is deemed to be “confidential information” for purposes of the Agreement. The parties acknowledge and agree that each party's confidential information is proprietary and integral to such party's business and agree to keep such confidential information confidential and not use or disclose such confidential information to any third person except as contemplated herein or as otherwise necessary to perform its duties hereunder. Notwithstanding the foregoing, confidential information does not include information that (a) is or became generally available to the public, (b) was in its possession or known by the receiving party prior to receipt from the disclosing party, (c) was rightfully disclosed to the receiving party without restriction by a third party, (d) was independently developed by the receiving party without use of any confidential information of the disclosing party, or (e) is required to be disclosed by law. 
  12. Other Provisions.
    1. Force Majeure. Kareo is not responsible nor liable for any delays or failures in performance relating to any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, war, acts or omissions of third party technology providers, riots, fires, natural disasters or acts of hackers, internet service providers or any other third party or acts or omissions of Provider or any of its Staff. Without limiting the generality of the foregoing or Section 11 of these Terms, the Kareo Telemedicine Platform and the Telemedicine Platform Services rely on third party technology and services. Any change to the products or services offered by any such third party provider may materially and adversely effect, or entirely disable, Provider’s use of or access to the Kareo Telemedicine Platform. Moreover, Provider acknowledges that Kareo cannot offer any additional or modified security procedures other than those put in place by Kareo’s hosting service provider(s).
    2. Assignment. Neither party may assign the Agreement or any of its rights or obligations thereunder without the prior written consent of the other party, and any such attempted assignment shall be void; provided, however, either party may assign the Agreement, and its rights and obligations thereunder, to an affiliate or in connection with any merger, reorganization, change in control, or sale of all or substantially all of its assets or stock; provided, further, Kareo may delegate any of its duties or assign any of its rights hereunder to a Kareo Party without notice to you, or your consent. This Agreement will bind and inure to the benefit of the parties hereto and their permitted successors and assignees.
    3. Third Party Beneficiaries. Provider expressly acknowledges and agrees that the Kareo Parties are direct and intended third party beneficiaries hereunder, and that any such Kareo Party may enforce any part of the Agreement that is applicable to it against Provider to the extent that such Kareo Party’s interests may be affected.
    4. Entire Agreement. These Terms together with the Activation Sidebar and the BAA constitute the full and complete agreement and understanding between the parties with respect to Telemedicine Platform Services and may only be modified upon the mutual written consent of the parties.
    5. Severability. Nothing in the Agreement is intended to conflict with current law or regulation. If a term of the Agreement is inconsistent with such authority, then that term shall be invalid, but the remaining terms and conditions of the Agreement shall remain in full force and effect.
    6. Termination. Upon termination or expiration of the Agreement, neither party shall have any further obligations hereunder, except for obligations arising prior to the effective date of the termination and obligations, promises, or covenants contained herein which expressly or necessarily extend beyond the term of the Agreement. Immediately upon termination of the Agreement, Provider shall return to Kareo all documentation relating to Kareo or the Telemedicine Platform Services.
    7. Notice. Any notice required or permitted hereunder shall be in writing and effective upon documentation of receipt by the receiving party.
    8. Governing Law; Arbitration. The Agreement, and all disputes and actions arising under or related to the Agreement, shall (i) be governed by and construed in accordance with the internal laws (and not the law of conflicts) of California, and (ii) be submitted to confidential arbitration in Orange County, California, except that, either party may seek injunctive relief in any state or federal court of competent jurisdiction. Arbitration under the Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under the Agreement shall be joined to an arbitration involving any other party subject to the Agreement, whether through class arbitration proceedings or otherwise.