Member Agreement PatientLynk

Document Version
November 1, 2021
Legal
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PATIENTLYNK® MEMBER AGREEMENT

NOTICE: PLEASE READ THIS ENTIRE AGREEMENT BEFORE SIGNING. BY CLICKING ‘I ACCEPT’ YOU ARE AGREEING TO THE TERMS IN THIS AGREEMENT.  YOU WILL NOT BE DENIED TREATMENT BASED ON YOUR FAILURE OR UNWILLINGNESS TO AGREE TO THESE TERMS, AND A REFUSAL TO AGREE WILL NOT AFFECT THE PAYMENT, ENROLLMENT, OR ELIGIBILITY FOR BENEFITS WITH YOUR HEALTH INSURER OR HEALTH PLAN SPONSOR. IF YOU HAVE DOUBTS OR REQUIRE ADDITIONAL INFORMATION, PLEASE REACH OUT TO US AT INFO@ABARTYSHEALTH.COM.  IF YOU DO NOT AGREE TO THESE TERMS, YOU WILL NOT GET ACCESS TO THE SERVICES.

Abartys Health (as defined in Section 12.8 below) (“Abartys”) electronically maintains, operates, and/or hosts (itself or through its service providers) a centralized patient access portal (“PatientLynk”). PatientLynk contains health data compiled from clinical data for each individual covered by a health plan insured or administered by the entities that are clients of Abartys. Each Member has the option to supplement the claims data maintained in PatientLynk with his or her medical, family and social histories. Each Member also has the option to allow their Provider (as defined below) to view all or a part of their information maintained by Abartys and to allow Provider to import information from their electronic health records.

In consideration of the mutual promises below, the exchange of information pursuant to this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

I. DEFINITIONS

  1. “Agreement” shall mean this PatientLynk Member Agreement.
  1. “Applicable Law” shall mean all federal, state and local statutes, rules, regulations and ordinances applicable to the subject matter of this Agreement or the parties’ performance of their duties  and obligations hereunder, including, but not limited to, ERISA and its implementing regulations, the Patient Protection and Affordable Care Act, as amended (the “ACA”), the “HIPAA Rules” and all standards, rules and regulations of any licensing or accreditation body which has jurisdiction over the subject matter of this Agreement or the parties’ performance of their duties hereunder.
  1. “Companion Guides” means the manuals or guides Abartys publishes related to the use of PatientLynk.
  1. “HIPAA Rules” shall mean the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, Public Law 111-005, and the final regulations to such Acts that the U.S. Department of Health and Human Services has promulgated pursuant to such laws that are set forth in 45 CFR Parts 160, 162, and 164.
  2. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  1. “Member” means the individual subject or a representative on behalf of an individual who accepts these terms and is authorized by Abartys to use PatientLynk subject to the terms and conditions herein.  You are the Member.
  1. “Member Personal Data” shall mean the electronic data or information, including any health information, uploaded by Member to PatientLynk.
  1. “PatientLynk” means the proprietary software, algorithms, formats, methods, code systems, value sets, elements, sequences, conventions, standards, guidelines, and all copies and portions thereof, existing as of the date hereof, and all modifications, enhancements and updates to and derivatives thereof.  PatientLynk and the “Services” are used interchangeably.
  1. “Personal Health Record” or “PHR” shall mean an electronic application through which Members can maintain, manage, and supplement information, including Member Personal Data, within PatientLynk.
  1. “Provider” shall mean the physician attending to, or medical facility where Member receives medical treatment.
  1. “Security Access Code” means an alphanumeric secure code that Abartys Health assigns Member, with certain restrictions, to allow the secure access to PatientLynk to utilize the Services as set forth herein.

II. USE RIGHTS

  1. Provision of the Services. Subject to the terms and conditions of this Agreement, Abartys hereby grants to Member a revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the Services.  Abartys shall make the Services available to Member solely for Member’s personal use, in accordance with the terms of this Agreement.  Abartys shall host the Services and may update the functionality of the Services from time to time in its sole discretion.
  1. Requirements. Member is responsible for all activities conducted under its Security Access Codes and for Member’s compliance with this Agreement.  Member shall not share access to the Services, and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services in any manner or form; (b) use the Services in a manner that is contrary to Applicable Law or in violation of any third party rights of privacy or Intellectual Property Rights; or (c) attempt to gain unauthorized access to the Services or its related systems or networks.  Member is responsible for maintaining the confidentiality of Member’s Security Access Codes and shall use such Security Access Codes in the manner set forth in the Companion Guide.
  1. No Provision of Medical Treatment.  The parties agree that the Services do not include or constitute medical care or treatment.

III. CONFIDENTIALITY.

  1. Confidential Information. In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including Member Personal Data and the PHR that is made available to, or learned by the other party during the term of this Agreement.
  1. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
  1. Confidentiality Obligations. Subject to the terms of this Agreement, each party shall (i) hold in strict confidence all Confidential Information of the other party, (ii) use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement, and (iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to its directors, officers, employees, consultants, subcontractors, auditors, and legal and financial advisors of such party (“Representatives”) who need to know such Confidential Information and who are under confidentiality obligations at least as restrictive as the terms of this Agreement. Each party is responsible for any breaches of this Agreement by its Representatives. Except as otherwise expressly provided in this Agreement, neither party shall use or disclose the Confidential Information of the other party without the prior written consent of the disclosing party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but in no circumstances less than reasonable care.  This obligation shall continue as long as allowed under applicable law.

IV. OWNERSHIP MATTERS

  1. Ownership of Services. Abartys and its third-party licensors hereby retain all rights, title and interest, including without limitation, all Intellectual Property Rights, in or to the Services. In addition, any changes, alterations, modifications, customizations or enhancements to the features or functionality of the Services made by Abartys, including those based on any suggestions, enhancement requests, recommendations or other feedback provided by Member, will inure to the exclusive benefit of Abartys and will be the exclusive property of Abartys. Abartys is hereby entitled to full rights of ownership thereto. Any rights not expressly granted herein are hereby reserved by Abartys.
  1. Ownership of Member Personal Data. Member retains sole ownership of, and title to, the Member Personal Data, and all Intellectual Property Rights related thereto. Member hereby grants to Abartys a worldwide, perpetual, non-exclusive license to use the Member Personal Data in connection with the provision of Services to Member hereunder, including the right to compile, collect, copy, modify, publish and use Member Personal Data in an anonymized and aggregate form. Abartys does not acquire any other rights to the Member Personal Data except as described hereunder. Member hereby represents that it owns, and has the right to access, use and process the Member Personal Data, and to permit Abartys and any of its service providers to do the same for the purposes of this Agreement.
  1. Collection and use of Member Personal Data.

A. In addition to using Member Personal Data to provide the services to Member, Abartys also uses such Member Personal Data for the purpose of maintaining our client relationship, which includes:

  1. Taking steps to improve our services to member, including to run analytics, improve our artificial intelligence tools, assess the quality of our services, and for other related internal business purposes;
  2. Protecting the health and safety of our personnel, clients, guests, and the general public;
  3. Administering and improving Abartys Services, including to measure the effectiveness of the Services, and help diagnose problems with our Services;
  4. Complying with Abartys’ legal, regulatory and risk management obligations, including establishing, exercising and/or defending legal claims;
  5. Fulfilling any other purpose described in our agreements with Member; and
  6. Provide Member Personal Data to Abartys service providers in order to assist Abartys in providing services to its clients.

B.  Abartys may also use Member Personal Data to create anonymous or aggregate personal information (“Anonymized Data”) and use and disclose such Anonymized Data in a way that will not identify you personally.  Such uses by Abartys of such Anonymized Data may include, without limitation, providing such Anonymized Data to the following entities:

  1. Organizations that conduct research;
  2. LifeScience companies, that develop and market medicines and medical devices;
  3. Health Plans, including for purposes of comparison of their members personal health situation relative to the broader community;
  4. Government entities, including for public health interventions and securing federal funding; and
  5. Family circles, for parents to access the personal health situation of their children (minors and consenting adult children).

Member consents to the provisions described by paragraphs (a) to (e) of subsection IV(3)(B) regarding such Anonymized Data.

Furthermore, and not notwithstanding the provision (d) of subsection IV(3)(B), Member consents to share their Laboratory Clinical Data with the Department of Health of the Commonwealth of Puerto Rico. This data may not be anonymous or deidentified.

V. WARRANTIES

  1. Warranties. Abartys warrants that: (i) it will provide the Services in a manner consistent with generally accepted industry standards reasonably applicable to the provision of the Services; and (ii) the Services will perform materially in accordance with the Companion Guides.
  1. DISCLAIMER. EXCEPT AS SET FORTH IN THIS SECTION V.2 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ABARTYS DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL OTHER, WARRANTIES, CONDITIONS, AND REPRESENTATIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON- INFRINGEMENT. ABARTYS DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE PROVIDED UNINTERRUPTED OR ERROR-FREE.
  2. Interruption of Service. Abartys Health specifically disclaims any warranty or guarantee that PATIENTLYNK and PATIENTLYNK related support services will be uninterrupted.
  1. Implied Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ABARTYS HEALTH HEREBY DISCLAIMS ANY AND ALL OTHER EXPRESS WARRANTIES OF ANY KIND OR NATURE AND ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  1. Exclusion of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ABARTYS HEALTH HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR INCOME, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, CLAIMS OF THIRD PARTIES, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED.

VI. TERM AND TERMINATION

  1. Term of the Agreement. The term of this Agreement commences on the Effective Date and continues indefinitely until terminated in accordance with this Section VI.
  1. Termination for Cause. Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and does not cure such breach within 30 days after its receipt of written notice specifying such breach from the non-breaching party. Consent to extend the cure period will not be unreasonably withheld.
  1. Insurer’s Termination of Services. In the event the agreement with insurer under which Member receives access to the Services under this Agreement is terminated, this Agreement shall also terminate.
  1. No Liability. If Abartys terminates, suspends or withholds Services in accordance with this Agreement, Abartys will have no liability to Member, and Member waives all claims and actions against Abartys, with respect to such termination, suspension or withholding of Services.
  1. Effect of Termination. Upon termination of this Agreement: (i) Member shall immediately cease accessing or using the Services; and (ii) all licenses and rights granted under this Agreement with respect to the relevant Services will immediately terminate.

VII. MISCELLANEOUS

  1. Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held or declared illegal, invalid or unenforceable, the remainder of the Agreement will continue in full force and effect as though the illegal, invalid or unenforceable provision had not been contained in the Agreement.
  1. Construction and Terms and Interpretations. The terms of this Agreement shall be construed in light of any applicable interpretation of Applicable Laws. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits compliance with Applicable Laws.
  1. Entire Agreement. This Agreement along with the Companion Guide constitute the entire agreement between the parties.
  1. Notices. Any notice, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and will be deemed to have been given when actually delivered (by whatever means) to the party designated to receive such notice.
  1. Trade Marks, Names and Service Marks. Abartys does not grants to Member the right to use its trademarks, service marks, trade names, or other designations in any promotion or publication.
  1. Assignment. Member may not assign or otherwise transfer this Agreement, and any attempt to do so is void.
  1. Successors and Assigns. This Agreement shall not be binding upon, and shall not inure to the benefit of, the parties’ respective successor or assignees. Abartys’ shall have the right to assign, transfer, or delegate (including, without limitation, any assignment, transfer, or delegation by operation of law in connection with a merger or otherwise) all or part of its rights hereunder to any parent or affiliate of Abartys, or in connection with a sale, merger or other business reorganization.  Subject to the foregoing, all of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of each party’s successors and permitted assigns.  Any assignment, delegation, or transfer in violation of this provision shall be void and without legal effect.  In addition, Abartys shall have the right to use any service providers or subcontractors in the provision of the Cloud Services, in its discretion, provided Abartys shall remain responsible for such service providers and subcontractors under the terms of this Agreement.
  1. Governing Law. This Agreement will be governed by, construed and enforced in accordance with the laws as provided below. Provider and Abartys hereby submit to the jurisdiction of such court(s) for the purposes arising out of or relating to this Agreement.  For purposes of this Agreement, if the Abartys Health entity under this Agreement is (a) Abartys Health LLC, then this Agreement shall be governed by the laws of the Commonwealth of Puerto Rico, excluding its conflict of laws principles; or (b) Abartys Health US, LLC., then this Agreement shall be governed by the laws of the State of Florida, excluding its conflict of laws principles.
  1. Force Majeure. Neither party shall be held liable for failure to fulfill its obligations under the Agreement, if such failure is caused by flood, communications failure, extreme weather, fire or other natural calamity, acts of governmental agency, or similar causes beyond the control of such party.
  1. No Waiver. Failure or delay on the part of either party to exercise any right, power, privilege, or remedy hereunder shall not constitute a waiver thereof. No provision of this Agreement may be waived by either party except by a writing signed by an authorized representative of the party making the waiver.
  1. Headings. The headings or captions provided throughout this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

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