Patient Management Intelligence™ Terms of Service

PMI Health Systems, LLC, a Delaware limited liability company, with a registered address at 1675 S. State St., Ste. B, Dover, DE 19901 (referred to herein as “PMI,” “We,” “Our,” or “Us”) provide the Site to Our users (“You,” “Your,” or “Customer”) pursuant to these Terms of Service (or this “Agreement”) which is effective as of the date Your access to the Service is provided by Us or the date which You access the site, whichever is earlier, if different (the “Effective Date”). By accessing or using the Site, You signify Your agreement to these Terms of Service. If You do not agree to these Terms of Service, You may not access the Site. These Terms of Service include a release by You of all claims for damage against Us that may arise out of Your use of the Site. By using the Site, You agree to this release.

WHEREAS, We provide Our Service (as defined below) to You and Your agents through Our web site located at www.connectpmi.com (the “Site”)

NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt of which is irrevocably acknowledged, We and You agree as follows:

1. Definitions.

All capitalized terms used and not otherwise defined in this Section 1 shall have the respective meanings ascribed to such terms elsewhere in this Agreement.

1.1 "Affiliate" means any person or entity directly or indirectly currently controlled by, controlling or under common control with a Party. “Control” shall mean an ownership interest of more than fifty percent (50%) of the voting stock of any entity and the right to elect a majority of its directors.

1.2 “Authorized User” means an individual employee or independent contractor of a Customer Entity who is authorized by Customer Entity and Us to access the PMI Platform pursuant to and in accordance with the terms and conditions of this Agreement.

1.3 “Authorized User Cap” means the maximum number of Authorized Users, as set forth on the Customer Entity List provided by Us, if applicable, which Customer Entity may provide access to the PMI Platform. We reserve the right to modify or amend this cap at any time.

1.4 “Customer/Your Data” means any and all data, which may or may not contain PHI, uploaded or otherwise provided to the PMI Platform by an Authorized User and contained in the PMI Platform in connection with Your business for the use of the Service.

1.5 “Customer/Your PHI Data” means Customer/Your Data that comprises PHI.

1.6 “Customer Entity” means a Customer which is a healthcare entity or other entity with which We have a written agreement or an affiliated entity of such an entity, only if listed on Customer Entity List provided to such an entity by Us.

1.7 “De-identified Data” means PMI Processed Data which has direct and indirect patient identifiable health information removed by Us, in accordance with HIPAA.

1.8 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104, 191, and regulations promulgated thereunder by the U.S. Department of Health and Human Services, each as amended from time to time.

1.9 “PMI Processed Data” means Customer Data that PMI compiles, sorts, integrates, normalizes, analyzes, maps, stores, processes, and selectively aggregates and combines with multiple disparate data sources from multiple organizations for comparison and benchmark purposes.

1.10 “PMI Platform” means the Patient Management Intelligence™ System as available to Customer pursuant to this Agreement and as available at www.connectpmi.com.

1.11 “Protected Health Information” or “PHI” has the meaning given to such term in 45 CFR § 160.103.

2. Acceptance of Agreement.

2.1 This Agreement governs Your use of the Service, whether or not You have paid for use of the Service. By You or Your employees, managers, officers, agents, representatives, contractors or consultants checking the box “I have read and agree to the PMI Terms of Service” on the login page of the Site, and/or by accessing or using the Service, You and they agree to be strictly bound by all of the terms and conditions set forth.

2.2 By accepting this Agreement/by accessing or using the Service or Site, You represent and acknowledge the following:

2.2.1 You are at least 18 years old and have the legal capacity to be bound by this Agreement;

2.2.2 You have read, understand, and hereby agree to be legally bound by this Agreement;

2.2.3 The information You provide in registering for the Service is accurate, complete, and is Yours or within Your right to use; and

2.2.4 If You are entering into this Agreement on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “You” or “Your” shall refer to the entity and its affiliates.

2.3 If You do not agree with this Agreement, or You cannot abide by the representations set forth in Section 1.2 and elsewhere in this Agreement, then You must not accept this Agreement and may not use the Service.

2.4 Modifications to this Agreement. We reserve the right to modify this Agreement at any time. By using the Service, You understand and acknowledge that You will be bound to any changes to this Agreement as soon as those changes are posted on www.connectpmi.com.

2.5 Direct all questions regarding this Agreement to: pmiadmin@pmihealthsystems.com

2.6 The recitals set forth above are true and correct and are adopted as terms of this Agreement and incorporated herein.

3. Description of Service and Consideration.

3.1 The "Service" means Site access which enables You to view and track integrated electronic medical records/data of patients across the continuum of care through the use of customizable work flow and data filtering tools for the purpose of driving/organizing patient care and evaluating a patient’s health risks. Service for this term will be provided for the fee(s) noted in the PMI Price List or if none, in consideration for the feedback/data which We will obtain from You.

3.2 The Service includes any updates, enhancements, customization, integration, or modification to the PMI Service and/or Site by Us during Your duration of use.

4. Consent to Electronic Communications and Solicitation.

By registering for the Service, We reserve the right to send You communications or data regarding the Services, including but not limited to (i) notices about Your use of the Services, including any notices concerning violations of use, (ii) updates, and (iii) promotional information and materials regarding Our products and services, via electronic mail. In the event that We send such communications, You will have the opportunity to opt-out of receiving future messages.

5. License Grant.

5.1 Subject to the provisions of this Agreement, We grant You a revocable, non-exclusive, non-transferable, limited license to access and use the Service. All rights not expressly granted herein are reserved.

5.2 Authorized Users. The PMI Platform may only be accessed by Authorized Users who (i) are an employee or independent contractor of Customer, (ii) have been properly issued valid credentials, and (iii) have agreed to the terms of service for the PMI Platform as set forth on the log-in screen of the PMI Platform. Customer Entity shall institute contractual and/or functional procedures and processes as necessary to monitor use of credentials and to protect and require Authorized Users to protect their credentials. At a minimum, Authorized Users shall be required to maintain their credentials in strict confidence and to change their passwords at least every ninety (90) days. Customer is fully responsible for any use of data, information or services obtained through the PMI Platform using passwords assigned to Authorized Users.

5.3 Data Use. By signing up for the Service, You automatically grant, represent and warrant that You have the right to Customer Data and grant PMI the right to use, copy, reformat, translate, excerpt (in whole or in part) and distribute Customer Data for any purpose as directed by You, and to use and share Customer Data with other healthcare providers who use the Service in connection with the delivery of patient care. We do not assert any ownership over Customer Data. You hereby grant to PMI a fully-paid up, worldwide, right and license to (a) collect and (b) compile, store, validate, integrate, normalize, aggregate, sort, manipulate, analyze and create derivative works of Customer Data, in each case, (a) and (b), for the purpose of creating (1) PMI Processed Data to provide the PMI Platform to Customer, and (2) De-identified Data in accordance with HIPAA. Customer acknowledges and agrees that PMI has the right to use the De-identified Data for patient outcomes reporting, quality of care improvement initiatives, cost of care estimations, support of public health initiatives, Service performance analysis, and performance analysis between PMI and Customer, in accordance with applicable law. Customer acknowledges and agrees that Customer Data in the PMI Platform may be made available to other healthcare providers who use the PMI Platform in connection with the delivery of patient care.

5.4 Reserved Rights. Each Party shall retain ownership of all right, title and interest in and to such Party’s pre-existing intellectual property. As between PMI and Customer, Customer retains all right, title and ownership rights to the Customer Data. All intellectual property rights, title and ownership rights in and to the PMI Processed Data, De-identified Data and PMI Platform, including any updates, translations, customized versions or other versions or derivative works thereof, shall at all times remain vested in PMI (subject to the restrictions set forth in Section 5.3 above) and, if applicable, its licensors, notwithstanding that Customer may contribute to the cost or design of such updates, translations, customized versions, or other versions or derivative works.

6. Acceptable Use Policy.

6.1 Your Responsibilities. By registering for and using the Service, You will be responsible for the following:

6.1.1 Your compliance with this Agreement;

6.1.2 The accuracy, quality, integrity, legality, reliability, and appropriateness of Your Data and of the means by which You acquired Your Data;

6.1.3 Using best efforts to prevent unauthorized access to or use of the Service, and notifying Us promptly of any such unauthorized access or use;

6.1.4 Complying with applicable state, federal and international laws and regulations in using the Service;

6.1.5 All activity that occurs under Your account through which You access the Service.

6.2 Restrictions on Use. By registering for and using the Service, You shall not:

6.2.1 Sell, resell, rent or lease access to the Service without Our prior express written consent;

6.2.2 Sublicense, sell, rent, lease, provide service bureau or timeshare services, transfer, transmit, distribute or otherwise make the PMI Platform or any component thereof or any data contained therein available to third parties other than Authorized Users;

6.2.3 Use the Service solely to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or solely to store or transmit material in violation of third-party privacy rights;

6.2.4 Use any automated means, including without limitation, agents, robots, scripts, or spiders, to access, monitor, copy or harvest data from any part of Our Site;

6.2.5 Solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;

6.2.6 Attempt to probe, scan or test the vulnerability of Our systems or authentication measures;

6.2.7 Interfere with or disrupt the integrity or performance of the Service, Site or third- party data contained therein;

6.2.8 Interfere with other users’ use of the Service;

6.2.9 Use the Service to illegally attempt to access, acquire or otherwise obtain data to which You are not legally entitled, such as information that relates to third parties;

6.2.10 Attempt to gain unauthorized access to the Service or their related systems or networks;

6.2.11 Steal, misappropriate or reverse engineer the user interface design, workflow, underlying software, or features of the Service;

6.2.12 Impersonate or misrepresent any individual or company;

6.2.13 Use the Service to infringe the copyrights or other intellectual property rights of third parties; or

6.2.14 Make any attempt to appropriate any of the software underlying the Service to Your own use for any reason whatsoever other than the management of patients in accordance with the terms of certain written arrangements between Us and You.

6.3 Violations of Acceptable Use Policy. We have the right to immediately and without prior notice freeze or terminate Your account if a violation of this Section 5 occurs.

7. Proprietary Rights and Notices.

7.1 Your Data. We acknowledge that Your Data is owned by You or the party that has entrusted You with it. However, in order to provide the Service to You, We may access and use Your Data to provide the Service and as otherwise provided for herein.

7.2 Intellectual Property

7.2.1 Both You and We own our respective intellectual property. For Us, this means We own all right, title and interest in the Service and Site, and all intellectual property rights related thereto, including but not limited to content, data, software, source code, interface, patents, copyrights, trademarks, trade secrets, and any derivative works derived therefrom. Except as expressly set forth in this Agreement, You shall have no right, title or interest in the Service, Site or any related intellectual property.

7.2.2 You may not modify, publish, transmit, reproduce, create derivative works from, distribute, display, incorporate into another web site, or in any other way exploit the Site, in whole or in part, without prior written permission from Us.

7.2.3 Trademarks. The Service and Site contains valuable trademarks owned and used by Us to distinguish Our services from those of others. The Service and Site may also contain references to other entities’ trademarks and service marks, but such references are for identification purposes only and are used with permission of their respective owners. We do not claim ownership in, or any affiliation with, any third party trademarks or service marks appearing in the Service or Site. You agree not to use or display trademarks without Our prior written consent or the consent of the owner of such mark.

8. Confidentiality

8.1 We will treat Your Data as “Confidential Information,” subject to the terms and conditions herein, except for those scenarios expressly set forth in this Agreement in which Your Data may be shared. In addition, “Confidential Information” shall also include confidential or proprietary technical, business or financial information and materials disclosed by You or Us to the other party, including but not limited to, any trade secrets associated with the Service that are economically valuable to Us and not readily ascertainable to those who do not have access to the Service.

8.2 Both Parties agree to hold Confidential Information in confidence and protect such Confidential Information from disclosure to any third party, other than as expressly set forth in this Agreement and to limit access to the other party’s Confidential Information to such of its personnel, agents, suppliers and/or consultants, if any, who have a need to access such information in accordance with the terms of this Agreement. Both parties agree that all Confidential Information is proprietary to the disclosing party or such third party, as applicable, and shall remain the sole property of the disclosing party or such third party.

8.3 Compelled Disclosures. Notwithstanding the foregoing, We reserve the right to disclose Confidential Information in response to an order of a court or other governmental body or as required by law or regulation to be disclosed (“Compelled Disclosure”). Prior to Compelled Disclosure, We will provide You with prompt prior written notice in order to afford You an opportunity to seek a protective order or otherwise challenge the Compelled Disclosure. You are responsible for any expenses incurred in seeking to prevent a Compelled Disclosure. After providing You with prior written notice, We will not be liable if We comply with the disclosure after giving You a reasonable amount of time to respond.

9. Data Privacy and Security.

9.1 We will maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data.

9.2 To the extent that we exchange Protected Health Information, which information is subject to protection under HIPAA and its promulgating regulations (collectively the “HIPAA” Rules), the HIPAA Privacy Rule (the Standards for Privacy of Individually Identifiable Health Information at 45 CFR, part 160 and part 164, subparts A and E), the HIPAA Security Rule [the HIPAA Security Standards (45 C.F.R. Parts 160, 162, and 164)], or the HIPAA Breach Notification Rule (the Notification in the Case of Breach of Unsecured Protected Health Information, as set forth at 45 CFR Part 164 Subpart D), We and You will fully comply with all such applicable rules and regulations in accordance with the terms of the Business Associate Agreement which has been or shall be executed by same parties.

10. Disclaimer of Warranties.

10.1 WE DO NOT WARRANT THAT THE SERVICE AND SITE WILL BE ERROR FREE, OR THAT DEFECTS CAN BE CORRECTED. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE AND SITE ARE PROVIDED TO YOU ON AN “AS IS” BASIS. WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. PMI CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICE. NEITHER PMI NOR ANY OF OUR PARTNERS MAKE ANY WARRANTY THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT YOU PURCHASE OR OBTAIN FROM THE USE OF OUR SERVICES WILL MEET YOUR EXPECTATIONS AND ANY ERRORS WILL BE IMMEDIATELY CORRECTED. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF OUR SERVICES AND THE ACCURACY OR COMPLETENESS OF THEIR CONTENT.

10.2 We shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, but You understand and acknowledge that We are not liable for any claims or losses due to (a) a reasonable amount of planned or unplanned downtime or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, or Internet service provider failures or delays.

10.3 You acknowledge that We may change or delete features from the Service at any time and for any reason.

10.4 WE SHALL NOT BE LIABLE FOR ANY CLAIMS OR LOSSES OF ANY KIND RELATED TO THE MISUSE OF THE SERVICE OR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE ACTIVITIES OF THIRD PARTIES OUTSIDE OF OUR CONTROL OR DUE TO YOUR FAILURE TO MAINTAIN THE CONFIDENTIALITY AND SECURITY OF YOUR ACCOUNT.

11. Linking Policy.

The Site may provide, or third parties may provide, links to other websites. You acknowledge and agree that such links are provided for Your convenience and do not reflect any endorsement by PMI with respect to the provider of such linked site or the quality, reliability or any other characteristic or feature of such linked site. PMI is not responsible in any manner (including without limitation with respect to any loss or injury you may suffer) for any matter associated with the linked site, including without limitation, the content provided on or through any such linked site or your reliance thereon. PMI makes no representations or warranties with respect to any linked site. Your use of any linked site is solely at your own risk. In addition, you should be aware that your use of any linked site is subject to the terms and conditions applicable to that site, including the privacy policies (or lack thereof) of such site. You consent to Our use of Your name and/or likeness in Our advertising materials, including but not limited to, on Our Site.

12. Limitation of Liability.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) INCURRED BY THAT PARTY AS A RESULT OF ANY BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Our aggregate liability under any theory of liability, including but not limited to, any indemnification obligations, shall not exceed the total fees paid by You, if any, for use of the Service for the period of the twelve consecutive months preceding the incident(s) which gave rise to said liability.

13. Indemnification.

You shall indemnify, hold Us harmless, and defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Service in violation of This Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. We will provide You with notice of any such Claim, and We reserve the right to assume exclusive defense and control of any matter which is subject to indemnification under this Section 12, in which case You agree to cooperate with any reasonable requests to assist Our defense of such matter.

14. Term and Termination.

14.1 Term. This Agreement will commence on the Effective Date and will continue for the duration of your access to the Service, subject to the termination provisions set forth herein.

14.2 Termination. We may immediately and without notice terminate Your access and use of the Service if We determine that You have violated this Agreement or violated any other terms or conditions related to the Service and may terminate for convenience at any time upon written notice. You may terminate this Agreement at any time, upon thirty (30) days prior written notice. Notwithstanding the above, We and You agree that in the event the Service will be terminated for any reason, We and You will work together in good faith to minimize any negative impact(s) such termination may have on patient care.

14.3 Injunctive Relief. You recognize, agree and acknowledge that We have a legitimate interest in protecting our intellectual property associated with PMI and the Service, and that a breach of this Agreement by You could cause Us irreparable harm. Accordingly, in addition to any and all other remedies that may be available to Us under applicable local, state, federal and/or international laws and regulations, We may, in Our sole and arbitrary discretion, seek temporary or permanent injunctive relief to enjoin or prohibit any breaches of the terms of this Agreement by You, and in any such action or actions You specifically waive the necessity of Us posting a bond.

15 Miscellaneous.

15.1 Entire Agreement. This Agreement constitutes the entire agreement of You and Us and supersedes all proposals, oral or written, all negotiations, conversations, discussions, or agreements between You and Us relating to the subject matter of this Agreement.

15.2 Assignment. You may not assign Your rights and obligations under this Agreement in whole or in part, at any time.

15.3 Notice. All notices under this Agreement shall be sent to the Parties at their respective registered principal addresses, in writing via registered or certified mail, return receipt requested, or via so-called next business day delivery service.

15.4 Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

15.5 Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.

15.6 Independent Contractors. This Agreement does not create a joint venture, partnership, or agency between You and Us, and both parties acknowledge that no other facts or relations exist that would create any such relationship. You and We are independent contractors while performing duties hereunder.

15.7 Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect the validity or enforceability of any other provisions of the Agreement.

15.8 Dispute Resolution. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation, We and You agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to arbitration, litigation, or some other dispute resolution procedure.

15.9 Governing Law; Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to its principles regarding conflicts of law. We and You hereby irrevocably submit to, and waive any objection to, the exclusive personal jurisdiction of the state and federal courts located in Palm Beach County, Florida, provided mediation, as outlined directly above, is attempted in good faith.

15.10 Agreement Binding on Successors. The provisions of the Agreement shall be binding upon and shall inure to the benefit of PMI and You and our respective heirs, administrators, successors and assigns.

15.11 International Use. Unless otherwise specified, the materials, information, products and services available on the Site are solely available in or applicable to the United States, its territories, possessions and protectorates. PMI makes no representation that materials or information in this Site, or the products and services available on the Site, are appropriate or available for use outside the United States. Those who choose to access the Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

15.12 Notice for Authorized User Changes. If any of Your Authorized Users which are granted access to Our Service pursuant to this Agreement are no longer an Authorized User, as defined herein, including but not limited to, an Authorized User whom is terminated by you for whatever reason or otherwise ceases access to Our Service for more than a period of five (5) consecutive days, then You shall notify Us in writing immediately, or as soon as possible upon receiving such information or that Authorized User may immediately lose its status as an Authorized User, at the sole discretion of Us.

15.13 Survival. Sections 7, 8, 9, 10, 11, 12, 13, 14.3 and 15 shall survive termination of this Agreement.

Last updated: February 28, 2018.