Acceptance:

HealthAware LLC (HealthAware) owns and operates the website www.healthaware.com and www.healthawaresolutions.com (collectively the Sites). HealthAware also develops, operates and distributes certain software programs and applications which include hosted applications for mobile devices that can send and receive text messages The Site(s), together with the collaborative services for coordination, management, coaching and communications for patients and health care personnel regarding medical conditions (including patient goal setting, care planning, compliance and outcome tracking, healthy habits, and behavior changes), and the data collection, storage, analysis and reporting tools, functions and services, that are provided at the Site(s) are collectively referred to as the Service.

The Service is offered and provided subject to acceptance without modification of all of the terms and conditions contained herein (Terms of Service). The Terms of Service shall be deemed to include all other operating rules, conditions, policies and procedures that are referred to herein or that may otherwise be published by HealthAware, from time to time, at the Site(s) or (collectively, Policies), including without limitation, the Privacy Policy.

If you do not agree to all of these Terms of Use, or if you are not eligible or authorized to enter into this agreement, then do not register for, access or use the service. Completing our registration process or otherwise accessing or using all or any part of the service will constitute acceptance of, and create a legally enforceable contract under which you agree to be bound by, all of these terms of service, without modification.

Updates:

HealthAware reserves the right, at its sole discretion, to update, modify or replace the Terms of Use (including any Policy), in whole or in part, at any time. Change notices may be communicated by postings at the Site, via the Terms of Use or Privacy Statement. In any case, you should periodically check the Policies, Privacy Statement and other Terms of Use for changes. Continued access or use of the Service following any change to the Terms of Use constitutes your acceptance of those changes. The Terms of Use may not otherwise be amended.

HealthAware may modify, suspend or terminate the Service (including without limitation, the Site in whole or in part, at any time without notice.

Eligibility:

The Service is intended by HealthAware to be made available only to individuals who (a) are at least 18 years old, or are at least 13 years old and who have the express permission of their parent or guardian and (b) are either a Clinician or Patient who has been specifically identified for onboarding and use of the Service by a Clinical Partner. As used in the Terms of Service: Clinical Partners are hospitals, clinics, acute care practices or other medical groups or healthcare systems or consumer wellness that have contracted with HealthAware to permit use of the Service by their respective Clinicians and Patients; Clinicians are practitioners, patient advocates, coaches or other individuals who (as employees of or contractors to a Clinical Partner) provide healthcare or related services to Patients; and Patients are individual patients of the Clinical Partner who receive medical treatments or other healthcare services from one or more Clinicians, or individuals who are properly authorized representatives of any such patient.

If you do not qualify, then you are prohibited from accessing, using and registering for the Service. HealthAware will not collect personally identifiable information from any person who is actually known to us to be under the age of 13. If we become aware that a person under 13 has provided personally identifiable information, HealthAware will take steps to remove such information and terminate that individual’s account, access and use of the Service.

The Clinical Partner, not HealthAware, is solely responsible for establishing the criteria and determining which of its Clinicians and Patients will be (and continue to be) eligible to use the Service. Without limiting the foregoing, the Clinical Partner is solely responsible for determining whether the Service will be (and continues to be) clinically appropriate and safe for each Patient. HealthAware will comply with any instruction from a Clinical Partner to discontinue offering the Service to any of its Clinicians or Patients. In addition, HealthAware may refuse to offer or continue offering the Service to any person and may change its eligibility criteria from time to time without notice.

Registration:

Although you may be able to visit the Site and without registering, you will not be able to access or use any valuable aspect of the Service. To complete your application for registration, you need agree to our terms of use or the specifically identified Clinical Partner, Medical Group, Or HealthCare System who will provide you with their terms of use and privacy statements.

The Service may be accessed: by visiting a portal through a health care system, which then communicates with HealthAware’s secured web servers. Currently, the health care systems refer to and includes all hospitals, medical groups, acute care centers, consumer wellness, healthcare providers, employers, businesses, and or government entities deploying our programs.

Regardless of how you access the Service, to ensure the integrity of the Service, you must complete an account registration process and provide HealthAware with current, complete and accurate information, as more specifically required by then current registration procedures and operational prompts. If some or all of your registration information has already been provided to HealthAware or the health care system, then you will need to review and confirm, complete or correct your information.

By way of illustration and not limitation, you may be required to provide the following information in order to establish your account and register for and use the Service: name, address, telephone number, e-mail address, a username, and/or password and certain preferences and permissions. You are required to maintain and update your registration data from time to time, to ensure that it is always current, complete and accurate.

HealthAware or its health care system partners may refuse to accept your application to register for the Service, in its sole discretion. Upon acceptance, HealthAware will activate the access for your account. You are solely responsible for maintaining the confidentiality of your access and other account information, and you will be solely liable for any and all activities under your account. You agree to notify HealthAware or its health care system partner immediately of any unauthorized use of your user account or any other breach of security related to the Service.

Fees and Payments:

At this time, Patients, Clinicians and health care systems may access and use the Service without a direct charge, but each of them is responsible for procuring all equipment and services needed to connect to the Service (such as, for example, mobile devices, computers, Internet services and cellular data services). Many of HealthAware’s health care systems pays a monthly or annual fee for our services. If you as the end user access this service, you are not responsible to pay HealthAware for our services. If however, you enroll in one of our mobile texting programs you may be subject to usage and data charges for your cellular service plan. HealthAware is not responsible for these third party charges.

We Are Not A Healthcare Service:

HealthAware does not offer or provide any kind of medical advice, health insurance or other healthcare service, including without limitation, any medical counseling, testing, medication, procedure or therapy related to the avoidance, prevention, diagnosis or treatment of any acute or chronic illness, disease or condition (collectively, Healthcare Services). The Service is not a substitute for professional Healthcare Services. Always seek the advice of your physician or other qualified healthcare provider with questions regarding any medical condition, or call 911 in an emergency.

The Service is intended only as a tool, which can be used to assist our Health Care Systems, Patients and Clinicians in coordinating, managing and communicating about routine health risk assessments, and adopting healthy habits for behavior changes. The Service is not intended for use in any emergency or urgent matter. As a result of its limited role as an intermediary between Patients and Clinicians, HealthAware has no control over the appropriateness, accuracy, quality, timeliness, scope, cost or risks of or associated with any Healthcare Service or healthcare provider. Therefore, you agree to release HealthAware from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Healthcare Services (including any injuries or disability arising therefrom).

To the extent that any Healthcare Services are offered to any Patient, they are provided by the applicable Clinical Partner and its affiliated Clinicians, not HealthAware. Accordingly, Healthcare Services are not deemed to be within the scope of the Service provided by HealthAware, and HealthAware shall have no obligation or liability regarding Healthcare Services.

Occasionally, HealthAware may provide non-medical coaching services, but not Healthcare Services, on behalf of a Clinical Partner or health care system, in which case it will be acting as a third party vendor to that Clinical Partner.

HealthAware does not recommend or endorse any specific health care system, clinical partner, clinician or healthcare service.

Privacy:

HealthAware’s current Privacy Policy is at www.healthaware.com/privacy-statement. It is important that you read and understand the Privacy Policy, especially because the nature of the Service necessarily involves the collection and use of personally identifiable information and, in the case of Patients, likely involves the collection and use of protected health information. The term Personal Data refers to and includes PII and PHI.

The most current Privacy Policy will apply to any and all use of the Site, and other aspects of the Service. HealthAware will not intentionally edit, modify, delete or disclose the contents of your Personal Data or other Service Data (as defined below) in connection with the Service unless (a) reasonably necessary for HealthAware (or its service providers) to operate the Service, including processing your queries, responses and other messages, (b) to communicate with Patients, Clinicians, Health Care Systems, and Clinical Partners, (c) otherwise permitted under the Privacy Statement or elsewhere in the Terms of Use, (d) HealthAware reasonably believes that such action is necessary to conform or comply with any legal, regulatory, law enforcement or similar requirement or investigation, to protect or defend the rights or property of HealthAware or any third party or to enforce the Terms of Use.

Service Data and Analytics:

The Service collects, stores, processes and analyzes Service Data and produces Analytics. Accordingly, whenever you interact with the Service, a variety of technologies are employed to automatically or passively collect Service Data.

The term Service Data means all data and information that are provided by you during registration and subsequent use of the Service (including messaging and text messages sent by you related to Healthcare Services), and all other data and information about you that are otherwise discerned or collected by HealthAware based on your access and use of the Service. For clarity, Service Data includes, but is not limited to: Personal Data; browser or device type; operating system; time of day; identification of Site page views; use of particular Service features (such as, for example, report requests or viewing or responding to queries from Clinicians); geographic location, test messages by you.

The term Analytics means user profiles and statistics, metrics, abstractions and other analyses that are based on or derived from the Service, Service Data or your use of the Service (including without limitation, measurements of Service usage and performance), which are developed in a manner that does not disclose the identity of the Clinical Partner or any Clinician or Patient (such as, in the aggregate with other data, results and measurements) and that does not disclose any specific Service Data (unless in aggregated or de-identified form).

You hereby authorize HealthAware to use your Service Data and to exploit Analytics in the manner and for the purposes described in these Terms of Use, including without limitation: to use Service Data to communicate with you and (as applicable) your Patients, Clinician(s) and Clinical Partner; Health Care Systems, to include, copy, disclose, distribute, transmit and display Service Data in communications between a Patient and his or her Clinician (and vice versa) that have been properly initiated via the Service; to access, record, collect, copy, store, process, analyze and use Service Data to provide the Service (including with regard to the use of PHI in messaging between a Patient and his or her Clinician); to develop, improve, extend and test the Service (and underlying technology platforms and programs); to design, develop and produce Analytics; to market and promote HealthAware and the Service using Analytics and data for marketing and sales purposes; and to disclose, distribute and transmit Service Data and/or Analytics to Clinical and Health Care Partners

User Generated Content:

The Service does provide functions that permit Patients or Clinicians to uploading photos, personal text messages, or other content when accessing the HealthAware Kare-N™ program. This user generated content will be shared and not disseminated to the public for any use. However, the content may be shared with health care systems and our partners as part of our analytics reporting.

User Rules and Conduct:

The Site, and all other aspects of the Service are provided for patients, for your personal, or commercial use with a healthcare system. Unauthorized use of the Service (including without limitation, accessing any aspect of the Service for which you are not authorized, or any commercial use by you, such as, for example, reselling or marketing Healthcare Services) is expressly prohibited. You are solely responsible for all acts or omissions that occur under your account, username or password, including messaging conducted via the Service.

As a condition of use, you hereby promise not to use the Service for any purpose that is unlawful, or that is commercial in nature (such as, for example, collecting money, or advertising or promoting any product, service, pyramid scheme or other venture) or that is prohibited by the Terms of Use, or for any other purpose not reasonably intended by HealthAware. You agree to abide by all applicable local, state, national and international laws, regulations and rules.

By way of example, and not limitation, you agree not to (a) take any action or (b) provide any Service Data using any communications service, survey, feedback, or other aspect of the Service, in any manner, that: is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another’s privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Use; infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any person or entity; reveals any confidential, proprietary or other information that you are required to keep secret, including without limitation, non-public Personal Data about another individual; discovers or reveals any personal information about another individual, including another person’s Personal Data or any other information that could be used to track, contact or impersonate that person, unless such information has been provided by that person in any public communication or forum; constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”), chain letters or any form of lottery or gambling; imposes an unreasonable or disproportionately large load on Health Aware’s computing, storage or communications systems and networks, or attempts to gain unauthorized access to the Site, or other aspect of the Service (including the underlying technology platform or programs), someone else’s Service Data, accounts, computer systems or networks connected to the Service, through password mining or otherwise; contains software viruses or any other computer codes, files or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of HealthAware or any Patient, Clinical Partner or other third party; registers for or creates user accounts by any automated means or under false or misleading pretenses, including by the use of a false, misleading or disguised e-mail address; harvests, scrapes or collects any information from the Service; uses any script, bot or other automated means that only simulates compliance with the Terms of Use or other requirement applicable to the Service; disguises the source of Service Data; or impersonates any person or entity, including any Patient or any employee or representative of HealthAware or any Business Partner.

HealthAware may, at its sole discretion, immediately suspend or terminate your access to the Service should your conduct fail (or appear to fail) to strictly conform to any provision of this section.

HealthAware has no obligation to monitor the Service or any user’s use thereof at any given time However, HealthAware reserves the right at any time and without notice to monitor, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement).

If you are a Clinician or health care system, then you also agree to comply with all terms and conditions of the Service contract between HealthAware and the Clinical Partner /Health Care System with which you are associated with.

Connections:

You may be able to access the Service and/or communicate with the Service from, and you may be able to link or communicate from the Service to, applications, devices, distribution platforms and websites owned and operated by Channel Partners and Clinical Partners. These other applications, devices, platforms and websites are not operated or controlled by HealthAware, and you agree that HealthAware is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Any such connection to or from the Service does not constitute or imply any guarantee or endorsement by HealthAware of that application, device, platform or website or any association with its operators. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.

Advertising and Promotions:

At this time, the Service does not include paid or third party advertisements. However, from time to time, HealthAware may offer its health care systems for or offers from HealthAware, Clinical Partners or other third parties marketing promotions to promote its services. Each promotion will have specific rules and will be displayed and communicated to participants.

Proprietary Rights:

The Service (including the Site, programs, platform, behavior change framework, and underlying technology platforms), and all content, materials, data and other information created by or for HealthAware (or its affiliates or licensors) and made available via the Service (collectively, Content), are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and HealthAware (and its applicable affiliates and licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by HealthAware, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the Service or Content. Your systematic retrieval of data or other Content from the Service to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without HealthAware’s express prior written permission.

If you desire to access or use the Service or Content for any purpose other than Authorized Use, then you must first secure permission from HealthAware or other owners of that Content.

Reproducing, copying or distributing any service, or any Content, or any design elements from the Site or any program, or platform, for any other purpose is strictly prohibited without HealthAware’s express prior written permission. Attempting to access or use the Service or Content for any purpose not expressly permitted in the Terms of Use is strictly prohibited.

Program(s) Feedback:

If you provide HealthAware with any program or platform feedback, ideas, recommendations or other suggestions regarding possible corrections, changes, improvements or extensions related to the Service or Content (collectively, the Feedback), in any form or by any means (whether through the Service, or by direct communication (e.g., e-mail) with HealthAware or any of its health care systems partners, officers, directors, employees, representatives, agents or Business Partners), then you:

represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information; and acknowledge and agree that HealthAware is under no obligation of confidentiality, express or implied, with respect to the Feedback; and agree to grant and do hereby grant to HealthAware and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same in perpetuity.

No monies or grants shall be provided for any solicited or unsolicited feedback if used otherwise to improve or enhance the consumer experience within any of HealthAware’s programs or services.

Termination:

HealthAware may immediately terminate your access to all or any part of the Service at any time, with or without cause (including without limitation, upon instruction from the applicable Clinical Partner or health care system), with or without notice. If you elect to terminate your registration and account, you may do so at any time by sending an e-mail (that includes your e-mail address) to [email protected]

Upon any termination, all rights and obligations of the parties under the Terms of Use shall cease, and you shall immediately stop accessing and using the Service and Content, except that (a) all obligations that accrued prior to the effective date of termination (including payment obligations, if any) and all remedies for breach of the Terms of Use shall survive, (b) HealthAware may retain and use Service Data in the manner described herein, but without disclosing any Service Data to you and (c) the provisions of those sections of the Terms of Use that should reasonably be understood to continue in effect shall survive. After termination, HealthAware has no obligation to maintain any Service Data or to forward or preserve any unread or unsent messages to you or to any other user or third party.

No Warranties:

The site, content and all other aspects of the service are provided “as is” and “as available”. The site, content and all other aspects of the service are provided without representation or warranty of any kind, express or implied, including, but not limited to, all implied warranties of accuracy, integration, title, non-infringement, quiet enjoyment, merchantability and fitness for a particular purpose, and all warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. Healthaware and its affiliates, licensors and business partners do not warrant that: (a) any information will be timely, accurate, reliable or correct; (b) the service will be secure or available at any particular time or place; (c) any service defects or errors will be corrected; (d) the service will be free of viruses or other harmful components; or (e) any result or outcome can be achieved. Use of the service is solely at your own risk.

All representations and warranties regarding any healthcare services shall be, if at all, only as expressly agreed between patients and the applicable clinicians and/or clinical partners or health care systems

Limitation of our Liability:

You agree that HealthAware (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any unauthorized access to, alteration or use of your account, transmissions or data, or for any material or data sent or received or not sent or received through the Service. You agree that HealthAware (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any Patient or Clinician’s threatening, defamatory, obscene, offensive, illegal or other content or conduct or for any Patient or Clinician’s violation of another person’s rights, including rights of publicity or privacy rights.

In no event shall HealthAware (or its affiliates, licensors and business partners) be liable concerning any subject matter related to the site, programs, platforms, content or other aspects of the service, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any (a) matter beyond its reasonable control, (b) loss or inaccuracy of data, loss or interruption of use, or cost of procuring substitute technologies, goods or services, (c) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits or goodwill, or (d) damages, in the aggregate, in excess of amounts you paid to HealthAware (if any) for the service or USD $100.00, whichever is greater, even if it has been advised of the possibility of such damages. These limitations are independent from all other provisions of this agreement and shall apply notwithstanding the failure of any remedy provided herein. Notwithstanding anything to the contrary above, nothing in the terms of services is intended to limit or exclude liability of any clinician or clinical partner or health care system as regarding its performance of healthcare services.

Some states and other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.

Indemnification:

You agree to (a) defend HealthAware, its affiliates, licensors and Business Partners, and their officers, directors, employees, contractors and representatives (Indemnitees) against any action or suit by a third party that arises out of any transaction or other dealings between you and any other user or other Business Partner, your use or misuse of the Service, or your breach of any of your representations, warranties or covenants under the Terms of Use and (b) indemnify the Indemnitees for liabilities (resulting from settlements or judgment awards), costs and expenses (including without limitation, reasonable attorneys’ fees) related to such claims. In addition, HealthAware reserves the right to assume the exclusive defense and control of any matter subject to the foregoing indemnity, in which event you will assist and cooperate with HealthAware in asserting any available defenses.

International Use:

You hereby expressly consent to the transmission, collection, storage, processing and use of the Analytics and your Service Data within, from and to the United States, in addition to the country where you are located (if not the United States). HealthAware makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. If you access or use the Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.

Governing Law; Arbitration:

The Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and HealthAware agree that any claim or cause of action arising out of or related to the Service must be commenced within 1 year after the claim or cause of action arose. Otherwise, such claim or cause of action is permanently barred.

The Terms of Use shall be governed by and construed in accordance with the laws of the State of Colorado, USA, excluding its conflicts of law rules. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service.

Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction, all disputes between the parties arising out of or in relation to or in connection with the Terms of Use shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Denver, Colorado, USA and the arbitrator will be appointed by HealthAware. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of the Terms of Use. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that the Terms of Use and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.

Any arbitration under these Terms of use will take place only on an individual basis; class arbitrations and class actions are not permitted. You understand and agree that by entering into these Terms of Use , you and HealthAware are each waiving the right to trial by jury and to participate in a class action.

Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Use, including without limitation, this section.

Integration:

The Terms of Use (including all then current Policies) are the entire agreement between you and HealthAware with respect to access, use and operation of the Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and HealthAware with respect to the Service. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable.

General Provisions:

Your rights and obligations under the Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with HealthAware’s prior written consent. HealthAware may subcontract, delegate, assign or otherwise transfer any or all of its rights, licenses and obligations hereunder without your consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Use of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Use will be in writing, in English and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail.

Copyright and Trademark Notices:

The Terms of Use and all Programs and Content provided by HealthAware are copyright © 2004-2017 HealthAware, LLC. and/or its licensors or suppliers.

HealthAware is the trademark of HealthAware. The names and logos of companies, products or services mentioned at the Site may be the trademarks or service marks of their respective owners, and shall not be deemed to create any endorsement or association between HealthAware and such owners.

All rights not expressly granted herein are reserved.

Contact:

If you have any questions regarding the Terms of Use or with the Service, please visit www.healthaware.com/terms-of-use/ or contact us at:

HealthAware
Attn: Terms of Use
1415 Park Ave West
Denver, CO 80205
E-mail: [email protected]