Original Version

Posted March 2, 2020

TERMS & CONDITIONS OF USE

1.         Your Agreement with InteliChart.

InteliChart, LLC (together with its parents, subsidiaries and affiliates, “InteliChart”) operates and provides various products, applications and services (collectively, the “Solutions”) via one or more of its websites (including any successor URL, sub-domain and/or any syndication of the foregoing, collectively, the “Sites”), online subscription services (“Online Services”) and/or downloadable mobile applications (“Mobile Applications” and, together with the Online Services and Mobile Applications, the “Platforms”), in order to facilitate and enhance your ability to create and/or manage your personal health record and to interact and communicate with your healthcare providers that are clients of InteliChart (each, a “Participating Provider,” and collectively, the “Participating Providers”), subject to these Terms and Conditions of Use (the “Terms”) and the InteliChart Privacy Policy (the “Privacy Policy,” and together with the Terms, the “Agreements”).  The Agreements set forth the legally binding terms for your use of the Solutions and Platforms.  InteliChart may change the terms of the Agreements at any time by posting modified, updated or new applicable terms and conditions and revising the “Last Updated” date at the top of the Terms or Privacy Policy, respectively.  Your continued use of any Solution after any such posting means that you accept the changes in the Agreements.  It is therefore important that you review the Agreements regularly to ensure you are updated as to any modifications.

BY CHECKING THE “I ACCEPT THE TERMS AND CONDITIONS OF USE” BOX INCLUDED AS PART OF AN APPLICABLE SOLUTION REGISTRATION, OR ACCESSING OR USING ANY SOLUTION, YOU EXPRESSLY AGREE AND CONSENT TO BE BOUND BY THE AGREEMENTS.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENTS, YOU MAY NOT COMPLETE ANY SOLUTION REGISTRATION AND YOU MAY NOT ACCESS OR USE ANY SOLUTION.   PLEASE READ THIS AGREEMENT CAREFULLY AND SAVE IT.

2.         Eligibility; Access to Personal Health Information.

Three requirements (collectively, the “Eligibility Requirements”) must be met for you to be eligible to establish a Solution account and use any Solution.  First, you must reside in the United States.  Second, you must be a patient of a Participating Provider.  Third, you must be (x) at least 18 years of age, (y) legally emancipated or (z) reached the age under applicable law within your jurisdiction (e.g., between the ages of 12-17) that grants you the right to consent to certain medical treatment (e.g., reproductive care) without parental consent (an “Adolescent”).  By agreeing to these Terms, you represent and warrant that you satisfy all of the Eligibility Requirements.

Parents or legal guardians may establish a linked account for their minor child (i.e., a child that has not become an Adolescent under applicable law) (each, a “Minor Child”).  If you intend to establish a Solution account for a Minor Child, you must demonstrate, to the satisfaction of the Participating Provider(s), the requisite legal relationship to such Minor Child.  If you have been granted the right to establish a Solution account for a Minor Child and your legal relationship with such Minor Child changes, you must immediately inform your Participating Provider(s). 

Under certain State and Federal laws, there are certain types of personal health information that the parents and/or legal guardians of Adolescents may not view without the prior written consent of the applicable Adolescent.  Due to these requirements, (i) parents and legal guardians shall not be permitted to access the Solution accounts of their Adolescents, and (ii) without limiting the foregoing, if you previously established a Solution account for a Minor Child, your access to such Solution account shall automatically be deactivated when such Minor Child becomes an Adolescent.

3.         License to the Solutions.

            Subject to the terms and conditions outlined in the Agreements, the Master Subscription Agreement (defined herein), the HIPAA Policies and Procedures (defined herein) and the Business Associate Agreement (defined herein), InteliChart gives you a personal, revocable, non-assignable, and non-exclusive license to (i) use the Solutions and (ii) view all content provided, made available or otherwise accessible via the Solutions (“Content”), including any information, text, or graphics obtained from InteliChart Licensors (as defined below).  InteliChart reserves all right, title and interest in and to the Solutions and Content (including, but not limited to, originals, translations, compilations and partial copies, if any) and except for the limited license rights to the Solutions and Content granted herein, you acquire no rights in or to any Solution or the Content.  If your use of a Solution or the Content is not expressly permitted by the Agreements, it is a breach of the Agreements and may violate InteliChart’s copyright, trademark, and other laws.

4.         Not Medical Advice.

InteliChart does not offer medical or any other health care advice, diagnosis, or treatment.  All Content is for informational purposes only.  InteliChart enables you to communicate with your Participating Provider for non-urgent issues only.  The Content is not intended to be a substitute for medical or health care advice, diagnosis or treatment.  You should consult your doctor or other qualified health care provider if you have any questions regarding a medical condition or before you commence or discontinue any course of treatment, take any drug, or make any changes to your diet.  You should not ignore or delay obtaining medical or other health care advice because of information accessed through the Solutions.  You should call your doctor or other qualified health care provider immediately if you think you may have a medical emergency.  

5.         Your Account and Use of the Solutions.

You may only provide information that you own or have the right to use when you create, transmit, or display health or any other information while using the Solutions.  You represent and warrant to InteliChart that all information you provide or supply to InteliChart pursuant to the Solutions, including without limitation, your registration information, is accurate and complete. 

You are responsible for the security of your password(s) and for authorizing, monitoring, and controlling any access and use of your account and password(s).  You must promptly notify your Participating Provider of any unauthorized use of your account or password(s).  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information or personal health information.  Especially in such situations, you agree to ensure that you exit from your account at the end of each session, including by logging out of your Facebook, Twitter, Google or other similar social media account (“Social Media Account”), if any, that you used to log in to any Solution.  If you use a Social Media Account to log in to a Solution, and if at the end of your session you log out of your Solution account but do not log out of your Social Media Account, you understand that your Solution password may be stored in such Social Media Account and thereby may be used by a subsequent user to log back in to your account on the Solutions, resulting in your personal information and personal health information being viewed by unauthorized persons.  InteliChart assumes no responsibility or liability for any access to your personal information or personal health information by unauthorized persons resulting from your failure to log out of your Solution account as described above.

InteliChart assumes no responsibility or liability for any information that you submit to the Solutions, or for any use or misuse by you or third parties of information transmitted or received using the Solutions.

6.         Use of Your Information.

            The security of your information is of utmost importance to InteliChart.  When you provide your information through the Solutions, you grant (i) InteliChart the right to access, use and distribute such information to third-party service providers (each, a “Licensor” and, collectively, the “Licensors”), including without limitation, providers operating health and wellness-related services, applications or web portals, (ii) Licensors the right to view, analyze, assemble, compile and/or aggregate such information with information from other individuals, and (iii) each of your Participating Providers the right to (x) access, view, retrieve, modify and update health and other information, which may include personally identifiable health information, in your account, (y) import such information from your account to its own electronic health record(s) and vice versa and (z) otherwise share such information with your other Participating Providers; provided that, in all such cases, (1) with the exception of your Participating Providers, InteliChart will not share your information in a form that would be reasonably likely to be personally identifiable without your explicit and prior permission and (2) InteliChart’s, each Licensor’s and each Participating Provider’s rights granted herein shall be subject to the terms of the Agreements, any applicable service and/or product license agreements between InteliChart and any Participating Provider, Licensor, client or other entity (each, a “Master Subscription Agreement”), InteliChart’s HIPAA Policies and Procedures and any related internal privacy and security policies (collectively, the “HIPAA Policies and Procedures”), any business associate agreement between InteliChart and any Participating Provider, Licensor, client or other entity (each, a “Business Associate Agreement”), and applicable law.  Notwithstanding the foregoing, you are solely responsible for controlling the content of the information in your account, including in the event of any third party’s access and contribution or modification of such information in your account.

            In addition to the foregoing, and in compliance with the “Meaningful Use” Stage 3 requirements promulgated by the Office of the National Coordinator for Health IT at 45 CFR § 170.315(g)(7)-(9) (“MU3”), InteliChart maintains, operates and/or hosts the InteliChart Open API (“Open API”).  Through the Open API, third-party service providers (“Developers”) operating health and wellness-related services, applications or web portals or other similar services designed for the patient access purposes contemplated by MU3 (“Applications”) are permitted to access your information through the Open API for the purpose of presenting that information to you through such Developer’s Application.  Such access to your information is granted to Developers solely (i) with your authorization and at your specific direction, (ii) in compliance with MU3, and (iii) pursuant to the terms and conditions of the InteliChart Open API Terms of Use, available online at https://openapi.intelichart.com.  You acknowledge and agree that (x) the choice as to whether or not to grant Developers access to your information through the Open API is yours and you grant such permission at your own risk, (y) InteliChart has no ability to control, and is therefore not responsible for, and makes no representations, warranties or guarantees regarding, whether the data security measures employed by such Developers are adequate to protect your information against disclosure to unauthorized persons or whether such Developers’ Applications are free of viruses or other technologically harmful components, and (z) therefore, if you authorize Developers to access your information in the manner described above, you will look solely to such Developers for recovery for any loss or damage arising from a data security breach, virus or other technologically harmful components occurring in connection with such Developers’ access to your information through the Open API or your access to or use of any Applications, and you hereby release InteliChart from any and all responsibility or liability with respect to the foregoing.

7.         Content and Services Accessed Through the Solutions.

            InteliChart does not recommend or endorse any specific procedures, products, or other information that may be mentioned or advertised on or through the Solutions or the Platforms.  If you rely on any Content, made available or otherwise accessible via the Solutions and/or the Platforms, you will do so only at your own risk.  InteliChart may not be held liable for any damages arising out of or related to your use of any such Content. 

            The Solutions may contain Content that you find offensive in one way or another.  InteliChart and its Licensors have no control over, and accept no responsibility for, such materials.   

8.         Modification and Termination of the Solutions.

InteliChart may, in its sole discretion, limit, modify, suspend, or cease to provide use of the Solutions (including any related Content and features) and/or a Platform to access and use one or more of the Solutions.  InteliChart may suspend or terminate your use of the Solutions at any time, for any reason, with or without cause; such suspension or termination may result in the deletion of your information, files and other previously available Content. 

If InteliChart ceases to provide the Solutions or terminates your use of the Solutions, these Terms will also terminate, but Sections 9 (Limitation of Liability), 10 (Indemnification), 13 (Jurisdiction) and 14 (Entire Agreement) will continue to be effective even after these Terms terminate.

9.         Exclusion of Warranties.

            EACH OF INTELICHART, ITS LICENSORS AND THE PARTICIPATING PROVIDERS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, MERCHANTABILITY AND NON-INFRINGEMENT.  InteliChart, its Licensors and the Participating Providers do not warrant that the information that you submit to the Solutions will be protected against loss, misuse or alteration by third parties.  Content in the Solutions is developed for use only in the United States, and neither InteliChart nor its Licensors or Participating Providers make any representation concerning the Content when used in any other country.

10.       Limitation of Liability.

            INTELICHART, ITS LICENSORS AND THE PARTICIAPTING PROVIDERS SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OR BREACH OF DATA OR INFORMATION, BUSINESS INTERRUPTION, OR OTHER LOSSES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IN THE EVENT OF A FINDING OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY BY EITHER PARTY OR ANY SUPPLIER, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, INTELICHART’S, ITS LICENSORS AND EACH PARTICIPATING PROVIDER’S AGGREGATE LIABILITY FOR ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED FIVE THOUSAND DOLLARS (U.S. $5,000). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

            YOU ACKNOWLEDGE AND AGREE THAT (I) YOUR RIGHTS, DUTIES, OBLIGATIONS AND REMEDIES WITH RESPECT TO THE SOLUTIONS (INCLUDING, WITHOUT LIMITATION, THE USE OR PERFORMANCE THE SOLUTIONS) SHALL BE GOVERNED SOLELY AND EXCLUSIVELY BY THESE TERMS, AND (II) YOU SHALL NOT INSTITUTE, PROSECUTE OR BRING ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION AGAINST ANY THIRD PARTY RESULTING FROM THE SOLUTIONS OR YOUR USE OF THE SOLUTIONS (I.E., YOU SHALL BRING ANY SUCH CLAIM DIRECTLY AGAINST INTELICHART).

11.       Indemnification.

You agree to defend, indemnify, and hold InteliChart, its officers, directors, employees, agents, Licensors and suppliers, harmless from and against any claims, actions, demands, liabilities and settlements, including without limitation, reasonable legal and accounting fees (a) arising out of, or related to, your use or misuse of the Solutions and/or Platforms; (b) resulting from, or alleged to result from, your violation of the Agreements; and (c) arising out of, or related to, your use, misuse, or reliance upon any Content, whether based on warranty, contract, tort or any other legal theory.    

12.       Assignment.

            InteliChart may assign these Terms, in whole or in part, at any time with or without providing you with notice.  You may not assign these Terms, or your rights hereunder, to anyone else, whether temporarily or permanently. 

13.       Notice; Consent Regarding Electronic Information.

            These Terms are in electronic form.  There may be information regarding the Solutions that the law requires that InteliChart to send to you.  InteliChart may send this information to you in electronic form, including by email at the email address you specified when you signed up for the Solutions or by access to an InteliChart website that will be designated in advance for this purpose.  Notices provided to you via email will be deemed given and received on the transmission date of the email.

14.       Jurisdiction.

            These Terms are governed by North Carolina law.  The exclusive venue for any dispute relating to these Terms is Mecklenburg County, North Carolina.  You and InteliChart consent to the personal jurisdiction of these courts.  If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions, which will remain in full force and effect.  Waiver of any of these Terms will not be deemed a further or continuing waiver of such term or condition or any other term or condition.

15.       Entire Agreement.

            The Agreements, as modified from time to time, constitute the entire agreement between you and InteliChart with respect to the use of the Solutions, Platforms and Content.