Terms and Conditions

HEALTHCHAMPION TERMS AND CONDITIONS

These HealthChampion Terms and Conditions (these “Terms”) constitute an agreement between, on the one hand, you (“you” or “your”) as the end user of the software described in these Terms, and, on the other hand, HealthChampion Partners, LLC, a Delaware limited liability company (“us” or “we”). When you create a HealthChampion account or use HealthChampion, you agree to these Terms. Both us and you may be referred to in these Terms individually as a “party” and collectively as the “parties.”

BY ACCESSING OR USING HEALTHCHAMPION OR OTHERWISE INDICATING ACCEPTANCE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.

1. DEFINITIONS

1.1 “Authorized User” shall mean only you, the person being granted a license to use HealthChampion pursuant to these Terms.

1.2 “Confidential Information” means all confidential, proprietary, and/or nonpublic information of any kind, whether written or oral, relating to our business or operations, specifically including, without limitation: (a) these Terms or any other agreement executed between the parties; (b) all nonpublic information concerning our business, technology, HealthChampion, services, internal structure, and strategies, specifically including, without limitation, software, product development, product pricing, product maintenance, source or object code, materials, documentation, Intellectual Property Rights (defined below), proposals, designs, concepts, methodologies, inventions, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information or licensing policies; and (c) any other information clearly labeled by us in writing as “confidential” prior to its disclosure, otherwise deemed as Confidential Information under these Terms, or which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment under the circumstances. Notwithstanding the foregoing, “Confidential Information” shall exclude information that is: (i) available to the public other than by a breach of these Terms; (ii) rightfully received from a third party not in breach of a contractual, fiduciary or other obligation of confidentiality; (iii) known to you at the time of disclosure as evidenced by your written records at the time of disclosure; or (iv) solely to the extent produced in compliance with any law or court order; provided, however, that you give us reasonable notice that such Confidential Information is being sought by a third party, so as to afford us the opportunity to limit or prevent such disclosure.

1.3 “Intellectual Property Rights” shall mean all intangible legal rights or interests evidenced by or embodied in: (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis.

1.4 “HealthChampion” means our package of products, platform, system, and services, which are related to products that are sold or made available for sale in the United States, including, without limitation, the Platform, software, and related software, services, products, data, information, and materials (including related documentation, content, and materials provided in conjunction therewith), including any changes, modifications, improvements, and enhancements (“Updates”) provided by us.

1.5 “Privacy Policy” means the Privacy Policy included on the Platform, as it may be updated from time to time.

1.6 “Platform” means myhealthchampion.com and the mobile application or any derivative websites or applications on which these Terms is posted.

2. GRANT OF LICENSE

2.1 Grant of License. Subject to the terms and conditions of these Terms, we grant to you, the Authorized User, a limited, non-exclusive, non-transferable, non-sublicensable license to access and use HealthChampion. The foregoing license to HealthChampion shall be solely for your personal purposes and you shall not permit access to or use of your log in credentials to HealthChampion to any other person.

2.2 Prohibitions. Under no circumstances may you modify, create derivative works based on, decompile, reverse compile, disassemble, or reverse engineer HealthChampion, or any portion thereof, or grant any other person or entity the right or access to do so, without our advance written consent (except as specifically allowed under applicable copyright or other laws). Except as expressly authorized by these Terms, you shall not unbundle, sublicense, assign, transfer, display, distribute, rent, or lease HealthChampion, or any portion thereof, to any third party. You may not access or utilize HealthChampion for competitive purposes or to develop software or services competitive with HealthChampion.

2.3 Reserved Rights. All rights not specifically granted to you hereunder are reserved by us. Nothing herein shall prevent us or our assigns from promoting, providing, licensing, or sublicensing use of or access to HealthChampion or providing any services to other parties.

2.4 Additional Software. HealthChampion may include or incorporate software or content developed or provided by third parties. Your use of such third-party software shall be subject to the terms and conditions of any third-party license agreements associated with such software or content, and you are solely responsible for your compliance with such terms and conditions.

3. OBLIGATIONS OF THE PARTIES

3.1 General Technological Obligations. As between us and you, you will have the sole responsibility for acquiring, installing, and maintaining your own technology environment, software, and other equipment necessary to properly access and utilize HealthChampion, and for any other costs and expenses incurred in operating, using, updating, maintaining, supporting, and servicing HealthChampion. You shall establish adequate operational back-up systems and procedures to ensure recovery and continuity of such systems and operations in the event of a failure of HealthChampion.

3.2 Authorized Use. You are responsible for ensuring that only you access and use HealthChampion in accordance with these Terms, and that you do not make unauthorized use of HealthChampion. Unauthorized use includes, without limitation: (a) use of HealthChampion to access websites or applications other than the Platform; (b) alteration or modification of individual data or of any HealthChampion configuration values from the originally delivered values; (c) accessing HealthChampion through any technology or means other than through the user account information provided to you by HealthChampion; and (d) any use of HealthChampion or the information contained therein in violation of any applicable law or regulation. You shall use your best efforts to ensure that our Confidential Information and Intellectual Property Rights (defined below) are kept secure and protected from unauthorized access or disclosure.

3.3 Account Information. You shall be solely responsible for the security and confidentiality of any username or password granted to you to access HealthChampion, and you shall use your best efforts to maintain the confidentiality of your password. You shall be solely responsible for any authorized or unauthorized access to HealthChampion using your username and password, and any actions taken thereunder, including, but not limited to, such non-Authorized User’s failure to comply with the terms of these Terms.

3.4 Updates; Maintenance and Support. Nothing herein requires us to create or develop any Updates or deliver any Updates to you. We make no representations or warranties regarding the Updates or the compatibility of any Updates. Any Updates so provided shall be licensed to you on the same terms as HealthChampion is licensed pursuant to these Terms, and such Updates shall be deemed incorporated into HealthChampion. During the term of these Terms, we will provide you with the following HealthChampion support services: (a) we will maintain email-based technical support queue and an electronic messaging system accessible via HealthChampion from which you may report problems and send questions about HealthChampion, (b) our personnel will monitor message requests for support on a regular (but not continuous) basis, and will use reasonable efforts to answer questions about use of HealthChampion; and (c) we will use reasonable efforts to correct verifiable and reproducible errors in HealthChampion reported by you. As used in these Terms, an “error” is any failure of HealthChampion to function in substantial conformity with the applicable HealthChampion documentation provided by us. We may correct errors by making revisions to programming or by providing reasonable “work-around” solutions. We reserve the right to modify any HealthChampion documentation if such documentation, in our sole determination, incorrectly describes HealthChampion functions and may do so in order to resolve an error. We retain sole discretion to determine whether and when to make new releases available and the terms on which they will be made available to you. Support services provided under these Terms do not include on-site consultation, systems administration, facilities management or customized programming support to resolve problems resulting from your equipment used to access HealthChampion, resulting from modifications to HealthChampion not made or authorized by us or resulting from the combination of or interface for HealthChampion with other programming or equipment if the combination or interface has not been made by or approved by us. In addition, support is not provided under these Terms for third-party software, hardware, or networks.

3.5 Compliance with Laws. You agree to comply with all applicable laws, rules, and regulations when using HealthChampion. You will not use HealthChampion in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms. You will not infringe on the Intellectual Property Rights of any third party in connection with your use of HealthChampion.

3.6 Collection of Technical Information. You agree that we may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of Updates, product support, and other services to you (if any) related to HealthChampion. We may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you. You also agree to our Privacy Policy, which further covers how we collect, use, share and store your information.

4. TERM & TERMINATION

4.1 Term. These Terms shall remain in effect until the termination of these Terms as set forth below.

4.2 Termination. We may immediately suspend or terminate these Terms and your license to use and access HealthChampion upon notice to you in the event (a) you breach any of the terms of these Terms, or (b) you violate any HC Intellectual Property Rights. Notwithstanding the foregoing, we may terminate these Terms and your license to access and use HealthChampion immediately with written notice.

4.3 Consequences Upon Termination. Upon the termination of these Terms for any reason, (a) your license to access and use HealthChampion shall immediately and automatically terminate, (b) you shall cease all access to and use of HealthChampion, (c) you shall not thereafter use, advertise, or display any HC Intellectual Property Rights, (d) you shall immediately return to us any other property, equipment, and materials provided to you by us(whether modified or unmodified), or immediately destroy such property at our sole option, and (e) upon our request, you shall certify to us your compliance with this section in writing.

5. WARRANTY DISCLAIMERS & LIMITATION OF LIABILITY

5.1 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, HEALTHCHAMPION AND ANY OF THE RIGHTS LICENSED TO YOU HEREUNDER ARE PROVIDED BY US AND OUR ASSIGNS “AS IS.” YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF ANY PRODUCT OR SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION, USE OF, AND RESULTS OBTAINED FROM HEALTHCHAMPION, OR ANY OTHER OR SERVICES PROVIDED PURSUANT TO THESE TERMS. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF HEALTHCHAMPION OR AGAINST INFRINGEMENT; AND THERE IS NO WARRANTY THAT HEALTHCHAMPION, THE DATA OR INFORMATION CONTAINED THEREIN, OR OUR OR OUR ASSIGNS EFFORTS WILL FULFILL ANY PARTICULAR PURPOSES OR NEEDS.

5.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THESE TERMS, HEALTHCHAMPION OR ANY UPDATES PROVIDED, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE HEALTHCHAMPION, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, WE SHALL NOT BE LIABLE TO ANY PERSON OR ENTITY FOR ANY (A) ERROR IN HEALTHCHAMPION OR ANY DATA, INFORMATION, OR SERVICES INCLUDED OR INCORPORATED THEREIN OR OTHERWISE MADE A PART THEREOF; AND (B) ACT OR OMISSION BY IT OR ANYONE ACTING ON ITS BEHALF; IN EACH CASE PROVIDED THAT SUCH ERROR, ACT OR OMISSION DOES NOT BREACH ANY PROVISION OF THESE TERMS OR CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES FOR HEALTHCHAMPION TO PROVIDE AND FOR YOU TO OBTAIN ACCESS TO AND USE OF HEALTHCHAMPION FOR THE SPECIFIED FEES PAID BY YOU TO US OR OUR ASSIGNS.

5.3 Indemnification by You. You shall indemnify, defend, and hold us, and our officers, shareholders, directors, employees, agents and affiliates (each, an “Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees, resulting from or arising out of any claim, suit, action, arbitration or proceeding brought or threatened by a third party against any Indemnified Party relating to: (a) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations hereunder, (b) your use, misuse or failure to lawfully use HealthChampion, or (c) your infringement or misappropriation of any HealthChampion’s Intellectual Property Rights or the Intellectual Property Rights of any third party.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 HealthChampion Intellectual Property Rights. As between the parties, we shall have and retain sole ownership of all Intellectual Property Rights comprising HealthChampion as well as any Updates (collectively, the “HC Intellectual Property Rights”). The limited license granted to you per Section 2.1 above does not transfer title or any other interest in or to HealthChampion or the HC Intellectual Property Rights, and you hereby disclaim any right, title and interest that you may have or gain therein. You shall not contest or aid in contesting the ownership or validity of the HC Intellectual Property Rights or any applications or registrations relating thereto.

6.2 License Granted to Us by Authorized User. You hereby grant us and our assigns a perpetual, royalty-free, non-exclusive, worldwide, transferable and sublicensable license to access and use all information, data, images and property of any kind uploaded or contributed by you into HealthChampion, excluding Personal Health Information (as defined below) (“Uploaded Data”) for any legal purpose related to HealthChampion including the provision of services by us. You are and will remain the sole and exclusive owner of all right, title and interest in and to all Uploaded Data, including all the all Intellectual Property Rights relating thereto to the extent there are any such Intellectual Property Rights. Subject to the license granted herein, we will not take any actions or engage in conduct inconsistent with your ownership of the Uploaded Data.

YOU HEREBY REPRESENT, WARRANT AND CERTIFY THAT YOU (A)(I) ARE THE SOLE OWNER OF ALL INFORMATION, DATA, IMAGES AND PROPERTY OF ANY KIND UPLOADED OR CONTRIBUTED BY YOU INTO HEALTHCHAMPION, AND/OR (II) HAVE BEEN GRANTED PERMISSION OR OTHERWISE AUTHORIZED BY THE APPLICABLE OWNER(S) OF ALL INFORMATION, DATA, IMAGES AND PROPERTY OF ANY KIND UPLOADED OR CONTRIBUTED BY YOU INTO HEALTHCHAMPION, AND (B) YOU ARE NOT VIOLATING THE RIGHTS OF ANY THIRD PARTIES BY UPLOADING SUCH INFORMATION, DATA, IMAGES AND PROPERTY.

6.3 Confidential Information. As a result of your access to HealthChampion, you will have access to certain Confidential Information of ours. You shall maintain the secrecy of all such Confidential Information disclosed to you. You shall not use, disclose or otherwise exploit any Confidential Information for any purpose not specifically authorized pursuant to these Terms; provided that, you may produce information solely to the extent to comply with any law, court or administrative order. You shall use your best efforts to give us reasonable prior written notice to the extent possible and permitted by law that such Confidential Information is being sought by a third party so as to afford us the opportunity to limit or prevent such disclosure. All files, lists, records, documents, drawings, documentation, materials, specifications, equipment and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted or destroyed by you promptly upon termination of these Terms.

6.4 Trademarks. Any trademarks owned or controlled by us, whether or not included in HealthChampion, and any logos relating to the foregoing are trademarks or service marks of ours and our licensors (collectively, the “HC Trademarks”) are our sole and exclusive property. For the sake of clarity, “HC Trademarks” shall not include any trademarks, trade names, service marks or logos located on products that are uploaded by you into HealthChampion, and such trademarks, trade names, service marks and logos shall remain the sole property of their respective owner(s).

6.5 Remedies. You agree that any breach of Section(s) 2, 3.2, 6.1, 6.2 or 6.3 will cause us irreparable injury and damage. You expressly agree that we shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which we might be entitled. The parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder. In the event a court refuses to honor the waiver of bond hereunder, the parties expressly agree to a bond in the amount of $100.00. All remedies for such a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy with respect to the subject matter hereof.

7. PROTECTED HEALTH INFORMATION

7.1 Security. We intend to protect the privacy and provide for the security of individually identifiable health information (“Protected Health Information”) used or disclosed pursuant to these Terms in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104 191 (“HIPAA”), and regulations promulgated thereunder including the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, Subparts A and E (“Privacy Rule”) and the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. Parts 160 and 162 and Part 164, Subparts A and C (“Security Rule”), the requirements of the Health Information Technology for Economic and Clinical Health Act, Public Law 111-005, and any implementing regulations issued by the Department of Health and Human Services (“HITECH”), and other applicable federal and state laws and regulations. Each of the parties represent that, to the extent the services performed or provided hereunder involve the use or disclosure of Protected Health Information, it shall comply with all requirements and obligations under HIPAA, the Privacy Rule, the Security Rule and HITECH (collectively, the “Healthcare Regulations”) applicable with respect to such Protected Health Information. We may use data and other information provided by you that is not uniquely identifiable Protected Health Information, including, but not limited to, quotations and case studies.

7.2 Business Associate Agreements. If we utilize a third party (other than a member of our workforce) to provide a service on our behalf that involves creating, receiving, maintaining or transmitting Protected Health Information for a function or activity regulated by the Privacy Rule, then we shall enter into business associate agreements in compliance with the relevant provisions of HIPAA which will contain satisfactory written assurance that the business associate will appropriately maintain the privacy and security of the Protected Health Information and fulfill HIPAA business associate obligations.

8. HEALTHCHAMPION DOES NOT PROVIDE MEDICAL ADVICE

8.1 The contents of the Platform, such as text, graphics, images, information obtained from our licensors, and other material contained on the Platform (“Content“) are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the HealthChampion Platform!

9. GENERAL PROVISIONS

9.1 Entire Agreement; Amendment. These Terms, including any documents or other agreements specifically referenced herein and incorporated by this reference, constitutes the entire agreement of the parties with respect to your access to HealthChampion and supersedes all prior agreements between you and us, both oral and written, with respect to HealthChampion. We may revise these Terms at any time, and such revised Terms shall be effective after the shorter of the following: (i) you consent to such revised Terms, which consent shall be evidenced by your continued use of HealthChampion; or (ii) 10 days after we provide you written notice by e-mail or other form of electronic communication of such revised Terms. No use of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement or alter in any manner the terms of these Terms.

9.2 Severability. If any term or provision of these Terms shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of these Terms shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of these Terms.

9.3 Force Majeure. Each party to these Terms shall be excused from any delay or failure in its performance hereunder, other than for payment of money, caused by any disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any labor dispute, government requirement, act of God, or any other cause beyond its reasonable control.

9.4 Survival. The provisions of Sections 1, 2.2, 2.3, 4.3, 5, 6, 7, 8 and 9 shall survive the termination of these Terms and shall remain in full force and effect.

9.5 Assignment and Benefit. You may not assign these Terms without our prior written consent. These Terms shall be binding upon and shall inure to the benefit of you and us our successors and permitted assigns, subject to the other provisions of this Section 9.

9.6 Third Parties; Waiver. Nothing in these Terms, express or implied, shall create or confer upon any person or entity not a named party to these Terms any legal or equitable rights, remedies, liabilities or claims with respect to these Terms, except as expressly provided herein. Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of these Terms shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of these Terms.

9.7 Export Restrictions. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using HealthChampion. Without limiting the generality of the foregoing, you represent that (a) you are not named on or acting on behalf of any person or entity named on any U.S. or other applicable government list of persons or entities prohibited from engaging in transactions, and (b) you shall not access or use HealthChampion in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction. You hereby acknowledge that some countries have restrictions on the use of encryption within their borders or the import or export of encryption even if only for temporary personal or business use, and you further acknowledge and agree that you are ultimately responsible for complying with any and all government import, export and other applicable laws.

9.8 U.S. Government End Users. HealthChampion is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government users acquire HealthChampion with only those rights set forth in these Terms.

9.9 Complaints Regarding Content. We respect the intellectual property rights of third parties. Should you have a complaint regarding information, data, images and property of any kind uploaded or contributed to HealthChampion, please contact us at privacy@myhealthchampion.com.

 

 

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