PicassoMD Terms of Use

Last Updated on October 29, 2020

These Terms of Use (this “Agreement”) is entered into by you and PicassoMD, a Delaware corporation, and it governs your use of various services provided by PicassoMD and its subsidiaries, affiliates or business partners (collectively, “we,” “us”, “our” or “PicassoMD”) through our website located at www.PicassoMD.com (the “Site”), and any web, mobile applications or interfaces offered by us (collectively, the “Services”). By using the Services, you consent to abide by the terms of this Agreement and the terms of our Privacy Policy(www.PicassoMD.com/privacy).

Additional terms may apply for certain Services or specific implementations and are included in a written agreement you may enter into with PicassoMD for those Services (“Order Form”). If such an Order Form is executed, this Agreement together with any applicable Order Form, constitutes the valid, complete, and binding contract between you and PicassoMD. To the extent that there is any conflict with an applicable OrderForm and this Agreement, the terms of the applicable Order Form shall govern. By using the Services, you consent to abide by the terms of this Agreement, the terms of the Health Insurance Portability andAccountability Act (HIPAA), the Business Associate Agreement (BAA) between you and PicassoMD, and the terms of our Privacy Policy (www.PicassoMD.com/privacy).

1.     Services.

(a)

PicassoMD will provide the Services to medical providers (each provider individually, a“Subscriber” or “you”), who subscribe to the Services electronically via the Site. Upon your electronic signature to this Agreement, PicassoMD grants you the non-exclusive, nontransferable right to use the Services. You may not copy or modify, create derivative works in respect of, enhance, otherwise alter or distribute any aspects of the Services. Your rights to use the Services are conditional on your compliance with the terms of this Agreement.

(b)

Unless otherwise specified in the applicable Order Form, you may use the Services commencing on the date this Agreement is executed (the “Services Term”). Unless otherwise specified, your Services Term shall continue on a month-to-month basis. Either party may terminate at any time and without penalty upon thirty (30) days written notice.

(c)

We will make every reasonable effort to ensure that our Services will continuously operate, but we make no warranty or representation that the Services will be available at all times or successfully operate. Access to and operation of the Services is dependent on services, equipment, and third parties over whom we have no control, such as internet service providers.Without limiting the foregoing statements, you specifically agree that we have no liability regarding access to or operation of the Services related to (i) failure of an internet service provider; (ii) failure of equipment maintained and owned by you or by us; (iii) reasons related to provision of system upgrades or maintenance by you or by us; (iv) any security breach; or (v)any inability to access an online system.

2.     Compliance; Use of Data.

(a)

You hereby represent and warrant that you are appropriately licensed and credentialed as a medical provider as required by applicable laws and regulations. If you are registering as a specialist, you further represent and warrant that you are a Board Certified physician in the specified field in which you practice. You also hereby represent and warrant to notifyPicassoMD in writing immediately should your credentialing or license to practice in the specified field as a physician or medical provider expire or otherwise be terminated. ThisAgreement shall terminate automatically upon such termination or expiration of your license or credentials, and you agree not to use the Services if your licensing or credentialing is not active or in good standing.

(b)

You will maintain, at your own cost, and keep in force, adequate policies providing comprehensive general liability, professional liability and other insurance, as may be necessary to insure you or your agents and employees against any claim or claims for damages arising out of the rendering of or failure to render professional services, including any professional services rendered over the Services. The policy limits of professional malpractice coverage shall be no less than one million ($1,000,000) dollars per occurrence and three million ($3,000,000) dollars in the aggregate.

(c)

In order for PicassoMD to provide Services, you grant PicassoMD the right to extract, transmit, store and use information and data related to the Services including but not limited to medical notes and patient information (collectively “Data”). We strive to protect the security and privacy of the Data, and shall protect the Data in compliance with HIPAA and our BAA. You hereby represent, warrant and covenant that you have the right to provide any such Data to PicassoMD via the Services in compliance with all applicable law.

(d)

You agree to comply with all applicable laws, including all privacy, data security, and data protection laws and regulations, including HIPAA, and our BAA. You agree that you are the controller of any personal information provided to PicassoMD, and that PicassoMD is the processor of that information.

(e)

You agree to comply with abide by all applicable laws regarding the sending of electronic messages, including the CAN SPAM Act of 2003 and HIPAA.

(f)

You agree that for the purposes of any Services that involve the collection, processing, storage, or disclosure of California residents’ or households’ personal information, PicassoMD is a service provider, as defined by the California Consumer Privacy Act, California Civil Code 1798.100-1798.199. PicassoMD understands and agrees that to the extent that the CaliforniaConsumer Privacy Act applies to work that PicassoMD performs for you, PicassoMD is prohibited from retaining, selling, using, or disclosing California residents’ personal information that it receives pursuant to the Services it provides under this Agreement for any purpose other than for the specific purpose of performing the Services provided for in this Agreement, any order form, any contract, or as otherwise permitted by the California Consumer Privacy Act, including retaining, selling, using, or disclosing the California resident’s personal information fora commercial purpose other than providing the Services specified in this Agreement or any order form. This paragraph does not apply to the collection, use, retention, sale, or disclosure of personal information that is de identified or aggregate consumer information. For the avoidance of doubt, any terms used in this paragraph are as defined by the California Consumer PrivacyAct.

(g)

PicassoMD shall have the right to use such deidentified Data at its discretion to track the medical histories and activities of your patients on a deidentified basis and to create and provide information and analytics about your patients. PicassoMD may also share individual and attributable Data with commercial payers or its customers. PicassoMD shall also have the right to track your Data, and to provide information and analytics about such Data to our clients. While you will have choices as to how to connect with other providers through the Services,PicassoMD may also use the deidentified Data to audit individual provider practices of itsSubscribers to ensure quality patient outcomes.

(h)

PicassoMD may use one or more third-party services, including text messaging service providers to collect and store Data, each of which will abide by the terms of this Agreement and our Privacy Policy.

3.     Fees.

(a)

Your mobile provider’s standard messaging rates apply to any Subscriber of the Services. There are no other fees except as may be set forth in an Order Form.

4.     Ownership of Services and Confidentiality.

(a)

PicassoMD (and/or its affiliates, third-party licensors, and/or suppliers) retain all right, title and interest in and to the Services. The Services are licensed, not sold, and all rights not expressly granted in this Agreement are reserved by PicassoMD (and/or its affiliates, third-party licensors, and suppliers). The Services and accompanying written materials and collateral (if any)(collectively, “Materials”) are protected by United States copyright laws and international treaty provisions. PicassoMD and its licensors and suppliers own and retain all right, title and interest in and to the Services and Materials, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. You acknowledge that your possession, installation, or use of the Services does not transfer to you any title to the intellectual property in the Services, and that you will not acquire any rights to the Services except as expressly set forth in this Agreement.

(b)

You agree with PicassoMD that the Services contain information or material which is proprietary to PicassoMD (and/or its other subscribers and third-party suppliers) (“ConfidentialInformation”), which is not generally known other than by PicassoMD, and which you may obtain knowledge of through, or as a result of the relationship established hereunder with PicassoMD.Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information, and other information of a similar nature (whether or not reduced to writing or still in development): anonymous health and medical data, trends, designs, concepts, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, methodology, processes, procedures, know-how, new product or new technology information, strategies and development plans (including prospective trade names or trademarks). You also agree and acknowledge that such Confidential Information has been developed and obtained by PicassoMD (and/or its affiliates, third-party licensors, and suppliers) by the investment of significant time, effort and expense, and provides PicassoMD with a significant competitive advantage in its business. You agree that you shall not make use of the Confidential Information for your own benefit or for the benefit of any person or entity other than PicassoMD, except as expressly authorized in this Agreement and not for any other purpose. You agree to hold in confidence, and not to disclose or reveal to any person or entity, the Services or any other Confidential Information concerning the Services other than to such persons as PicassoMD shall have specifically agreed in writing to permit you to so disclose. You agree and acknowledge the purpose of this paragraph is to protect PicassoMD’s ability to limit the use of the Services generally to licensees, and to prevent use of Confidential Information concerning the Services by other developers or vendors of apps.

(c)

You alone are responsible for any text, images, files or other information that you submit, transmit to, through or in connection with the Services (collectively, “Your Content”). You warrant and represent that Your Content is appropriate to the Services. Your Content must comply with the terms of this Agreement and with all applicable laws and regulations concerning personal information, advertising, marketing, deceptive or unfair trade practices, and any other applicable laws.

(d)

You assume all risks associated with Your Content, including anyone’s reliance on its advice, quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you or your customers personally identifiable. You may not imply that Your Content is in any way sponsored or endorsed by PicassoMD.

(e)

We have the right to use Your Content as specified in this Agreement and for purposes of meeting our obligations hereunder to provide the Services to you.

5.     Disclaimer.

(a)

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN“AS IS” BASIS AND PICASSOMD AND ITS AFFILIATES, THIRD PARTY LICENSORS, VENDORS, AND AGENTS HEREBY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PURPOSE. PICASSOMD MAKES NO REPRESENTATION OR WARRANTY RELATED TO THE RELIABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, NOR DOES IT GUARANTEE THAT THE SERVICES WILL BE SECURE, TIMELY,UNINTERRUPTED, ERROR-FREE OR MEET SUBSCRIBER’S EXPECTATIONS.

6.     Termination.

(a)

You may terminate your Subscription at any time by providing us with thirty (30) days’ advance written notice of termination. Additionally, we may close your account, suspend your ability to use certain portions of the Services, or your ability to use certain portions of the Services, and/or ban you or third parties altogether from the Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you or third parties from accessing your account, the Services, Your Content, the Data, or any other related information. We reserve the right to modify, update, or discontinue the Services at our sole discretion, at any time, for any or no reason, and without notice or liability.

7.     Indemnification and Limitations of Liability.

(a)

You shall indemnify, defend and hold harmless us and our affiliates, directors, officers, employees, shareholders and agents, from and against any and all liabilities, claims, damages, injuries or losses arising out of or relating to your use of the Services (including any third party claims related to negative patient outcomes or medical malpractice with respect to theServices), the use or storage of the Data, your operations (including without limitation by any patient), your breach of the Agreement or compliance with any applicable law, including privacy, data security or data protection laws and regulations. This section shall survive the completion, expiration, termination or cancellation of this Agreement. PicassoMD may at its own expense participate in the defense and settlement of any claim with its own counsel, and you may not settle a claim without PicassoMD’s prior written consent (not to be unreasonably withheld).

(b)

TO THE FULLEST EXENT PERMITTED BY LAW, IN NO EVENT WILL PICSSOMD BE LIABLE(A) FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS,PRIVACY OR DATA PROTECTION BREACH, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND(INCLUDING LOST PROFITS OR LOST DATA), REGARDLESS OF THE FORM OF ACTION,WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR (B) IN ANY EVENT, FOR ANY DAMAGES OR LIABILITIES EXCEEDING ONE HUNDRED U.S. DOLLARS ($100). SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH REFLECTS A REASONABLE ALLOCATION OF RISK AND THAT PICASSOMD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIABILITY LIMITATIONS.

(c)

THE PROVISIONS OF THIS SECTION 7 WILL SURVIVE NOTWITHSTANDING ANY LIMITED REMEDY’S FAILURE OF ESSENTIAL PURPOSE AND ANY TERMINATION OF THE AGREEMENT.

7.     Miscellaneous.

(a)

This Agreement, together with the BAA, constitutes the entire agreement and understanding between you and PicassoMD and supersedes prior agreements between you and PicassoMD.

(b)

This Agreement will be governed by the laws of the Maryland, and any action based on or alleging a breach of this Agreement must be brought in a state or federal court in state ofMaryland, and the Parties hereby consent to the exclusive jurisdiction of such courts.

(c)

We may modify this Agreement’s terms and conditions at any time with notice to you and continued use of the Services after a change in this Agreement or after implementation of any other new policy constitutes acceptance of such change or policy.

YOUR ELECTRONIC SIGNATURE OF THE THIS AGREEMENT SIGNIFIES YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT AND YOUR AGREEMENT THAT YOU AND YOUR ORGANIZATION ARE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.